Lahey and Addison

[2007] FamCA 1317

FAMILY COURT OF AUSTRALIA

LAHEY & ADDISON [2007] FamCA 1317

FAMILY LAW – APPEAL – CHILDREN – Where the trial Judge made orders that the children of the marriage live with the wife in Tasmania and have contact with the husband who lives in New South Wales – Whether the trial Judge erred in holding that the proceedings before him were inquisitorial or quasi-inquisitorial – Whether the trial Judge failed to properly consider the risk of abuse to the children – Whether the trial Judge failed to take into account or attribute weight to various material considerations – Whether the trial Judge placed undue weight on extraneous or irrelevant matters – Whether the trial Judge made mistakes of fact – Whether the trial Judge gave excessive weight to evidence favouring the wife and inadequate weight to evidence favouring the husband – Whether the trial Judge failed to properly consider the husband’s evidence – Whether the trial Judge erred in admitting into evidence and giving weight to the expert evidence of a particular psychiatrist – Whether the trial Judge erred in relying on and/or attributing excessive weight to a Family Report prepared by a welfare officer – Whether the trial Judge erred in failing to apply the legal principles applicable to relocation cases – Whether the trial Judge erred in admitting illegally obtained evidence – Whether the husband was denied procedural fairness and/ or natural justice due to the trial Judge admitting the affidavit evidence one deponent and rejecting the affidavit evidence of another – Whether the trial Judge erred in the application of the rule in Jones v Dunkel by failing to acknowledge the unexplained failure of the wife and Independent Children’s Lawyer to call certain individuals as witnesses – No error on part of trial Judge established – Appeal against parenting orders dismissed.

PROPERTY – Where the trial Judge made orders for a 60% - 40% distribution of the property of the marriage in favour of the wife – Whether the trial Judge erred his determination of the parties’ contributions – Whether the trial Judge erred in the assessment of the s 75(2) factors – Whether the trial Judge erred in failing to give any or any proper weight to material non-disclosure of the wife – Whether the decision was unreasonable and plainly unjust – No error on part of trial Judge established – Appeal against property orders dismissed.

APPLICATION TO ADDUCE FURTHER EVIDENCE – Further evidence the husband
sought to adduce in support of his appeal not allowed by Full Court.

COSTS – The husband is to pay the costs of the wife and of the Independent Children’s

Lawyer of an incidental to the appeal.

Family Law Act 1975 (Cth)

M and M (1988) FLC 91-979
Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318
McKee v McKee (1951) AC 352
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719
Jones v Dunkel (1959) 101 CLR 298

CDJ v VAJ (1998) FLC 92-828

APPELLANT: Mr  Lahey

RESPONDENT: Ms Addison

INDEPENDENT CHILDREN’S LAWYER: Patrick Barry Fitzgerald

FILE NUMBER: SYF 3280 of 2003

APPEAL NUMBER: SA 13 of 2006

DATE DELIVERED: 9 November 2007

PLACE DELIVERED:

PLACE HEARD: 

Canberra

Hobart

JUDGMENT OF: Finn, Kay and Coleman JJ

HEARING DATE: 5 February 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 February 2006

LOWER COURT MNC: [2006] FamCA 1168

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT: Abbot Tout Lawyers

COUNSEL FOR THE RESPONDENT: Mr Crawford

SOLICITOR FOR THE RESPONDENT: Murray & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Fitzgerald

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission Tasmania

Orders

1. That the appeal be dismissed.

2. That the husband pay the costs of the wife and of the Independent Children’s Lawyer of and incidental to the appeal with such costs to be assessed in default of agreement.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Lahey and Addison.

FAMILY COURT OF AUSTRALIA AT HOBART

Appeal Number:        SA 13 of 2006
File Number:             SYF 3280 of 2003

Mr Lahey

Appellant Father

And

Ms Addison

Respondent Mother

REASONS FOR JUDGMENT

1. This is an appeal by the husband against orders made by Benjamin J on 13 February 2006 in proceedings between the husband and the wife in relation to the future living arrangements for the two children of the parties’ marriage and also in relation to property settlement. The orders were made after a trial of some eleven days in November and December 2005.

2. All fifteen orders which relate to the arrangements for the children are the subject of the appeal with the most significant of those orders for present purposes being:

   1.THAT the children of the marriage between the parties, [J] (born … July 1997) … and [L] (born … November 2000) … reside with the wife.

   2.THAT the wife have responsibility for the day to day care, welfare and development of [J] and [L].

   3.        THAT [J] and [L] have contact with the husband as follows:-

   (a)       unlimited email contact;

   (b)subject to these orders, telephone contact on Mondays and Thursdays, to occur between 6.00pm and 6.30pm with the wife to facilitate such contact;

   (c)alternate weekend contact from after school Friday until 6.00pm Sunday during Tasmanian school term commencing the second weekend after commencement of each school term.  Such contact to be in Tasmania and subject to the husband providing at least two (2) weeks written notice to the wife of his intention to have such contact with the children.

   (d)up to four weeks in the Tasmanian Christmas School holidays at times agreed between the parties but in the event the parties are unable to agree then four weeks from 1 January in each year.

   (e)up to one week in the Tasmanian Easter holidays as agreed between the parties but in the event the parties are unable to agree then the last week of such Easter holidays.

   (f)one half of the Tasmanian June and September school holidays at times agreed between the parties and in the event they are unable to agree then the first half of such holidays.

   (g)       such other contact as is agreed in writing between the parties.

   …  

   5.THAT the husband collect and delivers the children from and to Launceston for each contact visit and be responsible for the cost of travel for such contact visits.

   …

   12.THAT the mother be restrained from allowing [J] and [L] to be in the unsupervised care of [JA].

3. In the event that the appeal against the orders concerning the children was to succeed, the husband seeks that the parties’ cross applications concerning the children be remitted for re-hearing.

4. The wife and the Independent Children’s Lawyer resist the appeal, and seek to maintain the trial Judge’s orders in relation to the arrangements for the children.

5. The principal orders of the five orders with respect to property settlement which the husband appeals are as follows:

   17.THAT the husband pay to the wife the sum of $353,042.35 within ten (10) weeks from the date of these orders.

   18.THAT contemporaneously with the husband paying the said sum of $353.042.35 in accordance with Order 14 above;-

   a)the wife shall do all acts and things and sign all necessary documents to assign to the husband the whole of her right, title and interest in property situated at and known as … Cromer in the State of New South Wales (Certificate of Title Folio Identify …) (the former matrimonial home).

   b)at the same time the husband shall procure the Commonwealth Bank the release for the wife of all and any of the liabilities in respect of the former matrimonial home or any other liability in respect of the properties owned by the husband, including property … Bondi (the Bondi unit) or property …  Fairlight) (the Fairlight property).

   …

   20. THAT a base amount of $38,006.40 is allocated, as required by Section 90MT(4) of the Family Law Act 1975, to the wife out of the husband’s interest in the B.T. Asset Link Superannuation Fund.

6. If the appeal against those orders was to succeed, the husband seeks in effect that the figure of $172,190.00 be substituted for the figure of $353,042.35 in both Orders 17 and 18, and that the figure of $22,010.00 be substituted for the figure of $38,006.40 in Order 20.

7. Again the wife resists the appeal against, and seeks to maintain, the property settlement orders in question.

relevant background

1. At an early stage in his reasons for judgment Benjamin J set out what he described as the “essential background and facts”. For present purposes we need only provide the following summary of those facts as found by his Honour:

   ·    The husband was aged forty two years and the wife aged forty one years at the date of the trial.

   ·    There are two children of the marriage, a son, J, aged 8 at the date of the trial and a daughter, L, aged 5 at the date of the trial.

   ·    The husband asserted that he and the wife commenced living together in February 1997; the wife asserted co-habitation from September 1996.

   ·    The parties married on … January 1998.

   ·    The wife says that the marriage came to an end in November/December 2002; the husband asserts that he regards the marriage as coming to an end on 1 March 2003.

   ·    On or about 3 November 2002 the wife and the children travelled to Tasmania and returned to Sydney approximately three weeks later.

   ·    In November 2002 the wife commenced a sexual relationship with GM.

   ·    On 7 December 2002 the wife returned to Tasmania and has resided in Tasmania with the children since that time.

   ·    On 9 December 2002 the wife said that she informed the husband that the marriage was over and that she proposed to continue residing in Tasmania with the children.

   ·    In mid to late January 2003 the wife commenced to occupy a home in Launceston (owned by a Trust controlled by her father).

   ·    In early 2003 the wife commenced to live with GM.

   ·    In March 2003 the husband says he discovered the nature of the relationship between the wife and GM.

   ·    On 17 April 2003 the children had contact with the husband in Sydney in accordance with a voluntary arrangement with the wife.

   ·    On 24 April 2003, whilst the children were in the husband’s care for that contact visit, the husband commenced proceedings for parenting orders.  He retained the children in Sydney pending the outcome of those proceedings and in breach of his arrangement with the wife to return the children to Tasmania.

   ·    On 9 May 2003 an interim Order was made by Registrar Henderson of the Family Court that the children reside with the wife and the children be returned to the wife.  The wife was permitted to reside with the children in Launceston.

   ·    On 11 May 2003 the children were returned to the wife.

   ·    On 17 July 2003 by consent, final parenting orders were made by Registrar Jurd.

   ·    On 3 November 2003 the husband’s application for an extension of time to review the exercise of judicial power by a registrar on 17 July 2003 was extended to seven days from 3 November 2003.

   ·    On … December 2003 D, who is the child of the relationship of the wife and GM, was born.

   ·    On 5 March 2004 the proceedings were transferred to the Hobart Registry of the Family Court of Australia.

   ·    On 5 October 2004 orders were made by Hannon J that telephone contact between the children and the husband be suspended.

2. As already mentioned, the parties’ cross-applications in relation to the future arrangements for the children and for property settlement orders were heard by Benjamin J over a period of some eleven days in November and December 2005, with his Honour then making the orders which are the subject of this appeal and delivering his reasons for those orders on 13 February 2006.

3. We will consider first the appeal against the parenting orders whereby the children were to reside with the wife and have defined contact with the husband.

Summary of the reasons of the trial judge in relation to parenting orders

1. In his reasons for judgment his Honour began his discussion of the issues concerning the children by explaining (in paragraphs 3 to 6) that the husband sought orders whereby the children would return to New South Wales to reside with him whereas the wife sought that they would continue to reside with her in Tasmania, and that the Independent Children’s Lawyer supported the wife’s case in relation to the residence of the children. All parties sought unsupervised contact between the children and the parent with whom the children did not reside.

2. Then having set out (in paragraph 7) the factual background in the terms which we summarised above, his Honour discussed at considerable length (paragraphs 8 to 134) the evidence concerning a range of issues which the parties had apparently considered significant in the case, and also the witnesses who had given evidence in the case and his Honour’s impressions of them.

3. It would be fair to say that in the course of that discussion there was considerable criticism of the husband and the manner in which his case had been conducted. It would also be fair to say that many of the husband’s grounds of appeal are directed to findings made by his Honour in the course of that discussion, and thus it will be necessary for us to refer to aspects of this discussion when we discuss the relevant grounds of appeal.

4. His Honour next explained (in paragraphs 135 to 147) the principles which would govern his decision concerning the future arrangements for the children as those principles were at the time contained in ss 60B, 61C, 65E and 68F of the Family Law Act 1975 (“the Act”), and he went on to refer to certain High Court and Full Court authorities concerning parenting issues.

5. Finally his Honour turned to an analysis of the matters required to be considered in determining what arrangements would be in the children’s best interests and which were at that time contained in s 68F(2) of the Act. We will refer later where necessary to his Honour’s findings in relation to these matters when discussing various grounds of appeal to which such findings may have relevance.

6. His Honour’s conclusions in relation to the arrangements for the children were then expressed in the following terms:

   195.Taking into account all of the findings I have made in respect of the children and all of the inferences that I have determined that flow from those findings and from the evidence, I determine that [J] and [L] ought to reside with the wife.  I have considered both proposals in the light of the evidence and it is in the best interests for the children to continue residing with the wife as they have done so since separation.

   196.In terms of contact, the proposals by both parties are almost identical and I will put in place those arrangements, which seem to be at least relatively uncontentious.

   197.I will also put in place orders which will enable the husband, should he wish to do so, to have contact with the children between the school holidays periods.  The husband has the financial resources where such contact is feasible provided he is determined to do so.

   198.It was argued by counsel for the wife that telephone contact should not be a feature of any order.  Whilst the behaviour of the husband, with regard to that contact, is unacceptable I will put in place orders restraining the husband from demeaning the wife, [GM] or other members of the wife’s family.  I expect the husband to comply with that order, and that being the case, there is no reason why telephone contact cannot resume.

7. We now turn to the grounds of appeal directed to the orders concerning the children which we will consider seriatim as this was the order in which they were for the most part argued before us. Before doing so, however, we mention that at the hearing of the appeal we dismissed an application made on behalf of the husband to adduce further evidence in support of his appeal. We said we would give our reasons for dismissing that application in our judgment in relation to the appeal. We will give our reasons in relation to one of the matters which was the subject of the further evidence application when discussing a ground of appeal relevant to that matter, and in relation to the remaining two matters which were the subject of the further evidence application at the conclusion of our consideration of the grounds of appeal.

grounds of Appeal Concerning children

(1) The nature of proceedings for parenting orders

1. By his first ground of appeal, the husband asserts that his Honour “erred in holding that the proceedings before him were inquisitorial and or quasi-inquisitorial in nature and in conducting same as such the cumulative effect of which has produced a result which is plainly wrong and inconsistent with where the best interests of the children lie”.

2. In his submissions in support of this ground Senior Counsel for the husband referred us to the following passage from the re-examination by the Independent Children’s Lawyer of the psychiatrist, Dr Sale (emphasis added):

   [W]ere you ever sent a request by anyone to clarify your report in relation to [L] and - - -?---No.

   So the first you became aware of the criticism was whilst you were under cross-examination?---Yes.

   Was there any - - -

   MR CONNOR: Can I object. How does this arise from - - -

   MR FITZGERALD: It arises from the cross-examination by Mr Connor, your Honour.

   MR CONNOR: I’m sorry, I’m misunderstanding perhaps, my friend’s position here though, your Honour. As I understand it, the witness is a court witness and my friend has had the opportunity of questioning the witness. I just wonder how this line of questioning arises.

   HIS HONOUR: Perhaps it arises out of the rules. I’ll allow the question.

   MR CONNOR: Yes, thank you.

   MR FITZGERALD: At any stage were you asked to update your report to involve - - -?---No.

   I’m talking about [L]?---No, nothing further was asked of me.

   There was a lot of questioning about lack of candour of the mother.

   MR CONNOR: I object to this, your Honour.

   MR FITZGERALD: Can I ask the question.

   HIS HONOUR: Wait till the question comes out then I’ll deal with it from there.

   MR CONNOR: Your Honour, does my friend have – is this a right of reply or is this further cross-examination or what?

   MR FITZGERALD: Well, your Honour – sorry.

   HIS HONOUR: Well, I’ve allowed him to ask these questions. It’s an inquisitorial process. [W]ait till the question comes out, if it as objectionable, we’ll dealt with that at that time.

   MR CONNOR: Your Honour, with respect, when your Honour described it as “inquisitorial”, I don’t know what my friend is going to be asking and what we might have to meet. It seems to me that if someone – your Honour can stop what is clearly leading questions and with respect it seems to me that we run the very real risk that we don’t get a chance of reply in the circumstances.

   HIS HONOUR: When I said it’s inquisitorial, I say it’s quasi inquisitorial, but I’ll allow him to complete his question and then it can be dealt with at that point. Thank you.

   MR FITZGERALD: Thank you, your Honour.

   Anything that was said, does that impact on your assessment of the psychiatric condition of the mother?

   MR CONNOR: I object.

   HIS HONOUR: I won’t allow the question because I think that’s already been answered in terms of the cross-examination.

   MR FITZGERALD: Then I won’t take that any further.

3. It was then submitted to us that his Honour’s use of the expressions “inquisitorial” and “quasi-inquisitorial” indicated that his Honour had erroneously approached the proceedings on the basis that they were inquisitorial as opposed to adversarial proceedings.

4. It could well be that when his Honour used the words “inquisitorial”, he had in mind statements of the type made by the High Court in M and M (1988) FLC 91-979 when, referring to the earlier High Court decision in Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318 and the Privy Council decision in McKee v McKee (1951) AC 352 at pp. 364-365, their Honours said:

   Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression…

1. But whatever his Honour actually intended by those words, and whether or not they were entirely appropriate, the fact of the matter is that the eleven day trial before his Honour proceeded according to the traditional adversarial process with each party being able to call their own evidence, to cross examine witnesses and to make a final address to his Honour.

2. Moreover to the extent that this ground of appeal is directed to his Honour’s permitting the Independent Children’s Lawyer to ask a particular question of an expert witness, it will be seen from the above passage of transcript that the question was in any event ultimately disallowed.

3. We understood from the submissions of Senior Counsel for the appellant that there are certain other matters to which this ground was also directed, but that those matters are the subject of separate grounds of appeal and would therefore be argued in the context of those grounds.

4. Accordingly as we indicated at the hearing of the appeal, we consider that this first ground of appeal as argued has no substance.

(2) The Risk of Abuse

1. In the course of the analysis in his judgment of the matters then contained in s 68F(2) of the Act, his Honour recorded (at paragraph 180) that at trial the husband had claimed that there was a risk that the children may be exposed to persons, being their maternal uncles JA and FA, who had allegedly engaged in sexual activities which are inappropriate.

2. Earlier in his judgment his Honour had referred to the evidence regarding these persons in the following terms:

   86.There was cross-examination of the wife in relation to sexual assault upon her, allegedly by one or both of her brothers.  Her evidence in that regard was that before she reached the age of puberty her brother [FA] had tweaked her nipples, sometimes in the presence of her mother.  The wife’s mother objected to the behaviour of [FA] who, at the time, was a young teenager. 

   87.On another occasion [JA] had masturbated and ejaculated in front of the wife.  To the best of her recollection she was then aged about ten and [JA] would have been about 13 or 14 years of age.  From cross-examination, it seems that this masturbation took place in circumstances, where the wife had come into the room where [JA] was masturbating, but he did not stop when she came into the room.

   88.When in her early twenties, the wife went to see a therapist … who says he put in her mind that she had been sexually abused and that he had “uncovered memories” of which the wife had no recollection.  On cross-examination the wife said she saw a second counsellor at about that period of her life.  Although the wife had no memory, she began to suspect that something had happened to her, at the hands of her brothers.  In her twenties the wife expressed these suspicions to her mother, who in turn referred it to their local doctor and he suggested that the wife see a psychiatrist. 

   89.In his report on the parties Dr Sale observed:

   “[The wife’s] account of family life was that it was secure and stable, although her father was often absent due to his involvement with his business. On the issue of sexual abuse, now a prominent feature in this dispute, [the wife] told me that there had been an occasion when she was about ten years old when she saw [JA] masturbate. He would have been about thirteen years old at the time.  She was unable to recall the context of the incident, and denied that there was any touching or intimate contact.

   She said that other matters pertaining to supposed sexual abuse within her family had arisen out of her participation in psychotherapy.  She referred in particular to her attendance upon [the therapist], apparently a self-styled psychotherapist who was at the time practicing in Balmain (an exert from a web site referring to his therapy as appended) [who] had been recommended by a friend.  [The wife] had seen him on about six occasions.  She stated that from the outset he had intimated that there were repressed memories of earlier sexual abuse. His modus operandi including role play and “deep muscle relaxation” [which may equate to hypnosis].  She later learnt that others who had consulted with [the therapist] were proan to recover memories of earlier abuse.  The implication of this history was that this were “false memories”, a problem that tends to be associated with particular therapeutic “styles and practices”…

   …

   91.Having heard and read the evidence, there is no evidence of the wife being sexually abused by [FA].  There is nothing in the evidence which should prevent the children to come into contact with [FA].

   92.There are concerns about [JA], which are set out in the report of Mr Pinkus [a psychologist], which is annexed to the affidavit of [RP, the former wife of JA].  This relates to a serious allegation of sexual abuse by [JA] by his daughter [K] (aged 9).  These allegations are set out in the affidavit of [RP].

   93.As to [JA], the issue arising out of his behaviour as a thirteen year old boy who was masturbating, in isolation this event does not pose a significant concern.

   94.In terms of the allegations by [K] there is no doubt that they were made by her, there is a significant issue as to whether they are true or not true.  [JA] denies the allegations.

   95.I find that the details of the report provided by Stephen Pinkus and dated 27 June 2002 were made known to the husband prior to separation and that a few months after separation the husband objected to [JA] having contact with his children.  I find that since that time the wife and her mother and father have not allowed either [L] or [J] to be in the unsupervised care of [JA].  This, in circumstances where they do not believe [JA] had acted as was asserted by [K].  I am satisfied that if I make an order preventing the wife from allowing the children to be in the unsupervised care of [JA] that such an order would be complied with by the wife and her family.

   96.I am unable to make positive findings that [JA] abused his child nor can I find that he did not abuse the child.  However, I do find that there is a risk of abuse.  As to what weight I should attribute to this risk of abuse, I determine that it is more of a lingering doubt rather than an unacceptable risk of abuse.  I will put in place safeguards with regard to any, however minor, risk of abuse that [JA] may pose to the children of this marriage.  As a consequence of these findings in these proceedings I disqualify myself from hearing the proceedings between [JA] and [RP].

3. Then later in the course of his analysis of the s 68F(2) matters, his Honour made the following observations and findings:

   180.The husband asserts that there is a risk the children may be exposed to persons who have engaged in sexual activities which are inappropriate.  Those persons being the maternal uncles, [JA] and [FA]. 

   181.In terms of [FA], I refer to my findings above.  He did not give evidence in this hearing.  However, no specific allegations were raised about him.  The allegations with regard to [FA], and at some levels to [JA], were about some alleged and unidentified sexual abuse which occurred to the wife when she was a young child.  This discovery came about as a result of the “repressed memory” that is discussed above.

   182.The wife no longer believes that there was such activity with regard to [FA] and believes that she was mislead by [the therapist] and other health professionals when the wife was in her early twenties.  There is nothing in the evidence upon which I could make a finding that there is any risk of sexual abuse to the children by [FA].

   183.The High Court has said that in determining the best interests of a child a court will not grant contact that would expose the child to an unacceptable risk of sexual abuse.  It is the task of this court to consider the evidence in light of that guidance.

   184.It is important to understand what the court does.  It is not a criminal court charged with determining whether or not the accusers have established that the accused abused the child.  That exercise would require, before action to the detriment of the accused would occur, an establishment of an abuse beyond reasonable doubt.  That is a very high standard of proof that criminal law requires or when criminality is alleged and liberty is often at stake.  Nor is the ordinary civil litigation relating to money concerning only the adult parties. When work of that nature is undertaken a court is obliged to consider the matter upon the balance of probabilities, that is, that it is more likely than not that something occurred. Further, the Court is not part of the therapeutic structure the community provides.  It cannot respond to the call sometimes made to give assistance to the child that the allegations are believed.  The court is concerned to apply current Australian Family Law which is primarily found in an Act of the Federal Parliament, as explained by higher courts, to resolve the dispute before it, that it does so by regarding the best interests of the child as paramount in the case of alleged sexual abuse and deciding whether the contact will expose the child to an unacceptable risk of sexual abuse.  Accordingly, a court may find whilst it cannot be satisfied that the abuse occurred beyond reasonable doubt or even on the balance of probabilities, its concern for the welfare of the child may result in denying contact, or requiring supervision of contact, where it feels that an unacceptable risk of sexual abuse is demonstrated.  The apparent slur on the particular parent is balanced against the duty to the child.

   185.In terms of [JA] there are three issues which arise.  The repressed memories of which I have dealt with above, the masturbation by [JA] in the presence of his sister when he was about thirteen or fourteen and the wife was about ten and the allegations with regard to his own child, which I have referred to above.

   186.I have made no findings in relation to those matters but I have a lingering doubt, with regard to [JA], in respect of unsupervised contact between he and [J] and [L].  However, this does not impact upon the capacity of the wife to continue as principal carer of those children.  I find that the wife has not allowed [JA] to have unsupervised contact with the children since the issue was raised by the husband in early 2003 and I find that the wife will comply with orders that I make in that regard.  I will put in place orders which will prevent unsupervised contact between [JA] and the children or either of them. 

4. By Ground 2 the husband asserts that his Honour “erred in relation to the issue of risk of abuse the cumulative effect of which has produced a result which is plainly wrong and inconsistent with where the best interests of the children lie, and that whilst he did not have to weigh and or resolve the disputed allegation in the same definitive way as a court exercising criminal jurisdiction he:

   i.failed to make findings when he was in a position to do so relative to this issue, and or to otherwise properly consider and or weigh the evidence as to whether the respondent mother’s older brothers, [JA] and [FA], posed either a sexual or physical risk to the children.

   ii.having found that there was a risk of abuse, relative to [JA], only weighed that risk of abuse in a very minimal manner adopting the term ‘lingering doubt’, in circumstances where he earlier found that he was unable to make positive findings, inter alia, as to whether [JA] had or had not abused his children [K] or as to other facts relevant thereto.

   iii.having determined that he could not or should not make any more positive finding as to risk of abuse, proceeded to draw negative inferences against the appellant father for having raised the same.”

5. Although the written submissions in support of Ground 2 made some reference to an alleged failure on the part of his Honour to properly consider the evidence in relation to the risk of abuse to the children of the husband and the wife from FA, no complaint in relation to FA was pursued in the oral submissions of Senior Counsel for the husband. On the material before us, this course is understandable.

6. So far as JA is concerned, Senior Counsel for the husband referred us to the conclusion reached in a report dated 27 June 2002 from the psychologist, Stephen Pinkus (prepared it would seem for JA and his former wife, RP, or for the purpose of proceedings between them):

   Taking all this into account, I must place major emphasis on what [K] said. Consequently I do believe that you have been inappropriate with her and that there is a risk to [K] if she has unsupervised contact with you. I received a letter from your Mother, [JA], offering to act as supervisor. I did not know if this is acceptable to both of you that I must emphasise that both facets of [K’s] feelings towards her father should be accommodated, that is both the apprehension as well as the positive feelings.

7. We are at somewhat of a loss to see how that passage from the psychologist’s report advances the Husband’s case on appeal. More fundamentally, we cannot see how having found only “a lingering doubt” with regard to JA in respect of unsupervised contact between [JA] and the subject children – a finding clearly open to his Honour – that his Honour was required to do more than make the order which he did, being that the wife “be restrained from allowing [J] and [L] to be in the unsupervised care of [JA]”.

8. In relation to the assertion in the written submissions in support of Ground 2, that his Honour “should have had regard to the ability of [the wife] to obey the restraint on [JA]”, it need only be said that his Honour had found in paragraph 95 of his reasons – a finding which we did not understand to be challenged – that since the report of Stephen Pinkus in June 2002, the wife and her parents “have not allowed either [L] or [J] to be in the unsupervised care of [JA]” and “[t]his, in circumstances where they do not believe [JA] had acted as was asserted by [K].” His Honour also expressed himself satisfied that if he was to make an order preventing the wife from allowing the children to be in the unsupervised care of [JA], such an order would be complied with by the wife and her family. His Honour repeated those findings at least in substance in paragraph 186 of his reasons.

9. The complaint contained in sub-paragraph (iii) of Ground 2 concerning negative inferences allegedly drawn by the trial Judge against the husband was not developed before us at least in the context of this ground.

10. Finally in connection with the claim that the children were at risk of abuse from the wife’s brother [JA], we mention that one aspect of the further evidence, which we would not permit the husband to adduce before us, was a report by a psychologist, Ms Stark, dated 18 October 2005 which was prepared apparently for the purpose of the family law proceedings between JA and his former wife RP, and which concerned their child, K, and the allegations that she had been abused or inappropriately dealt with by JA.

11. We were not prepared to received Ms Starks’ report for the reason that it could not establish error on the part of the trial Judge in his conclusion that he had “a lingering doubt” concerning JA, or in the restraining order which he made prohibiting the wife from leaving the children in the unsupervised care of JA, or in his conclusion that the wife would obey that order.

(3) Material considerations not taken into account

1. By Ground 3 it is asserted that his Honour “erred in that he did not take into account or attribute any weight to material considerations including the following available evidence by reason of which, his discretion manifestly miscarried:

   i.the evidence of [RP];

   ii.the substance and findings of the report of Zelig (Stephen) Pinkus dated 27.06.02;

   iii.the file HBF690/1998 relating to [JA] and [RP] which the appellant father made oral application to inspect on Monday 28.11.05;

   iv.the respondent mother’s diaries despite the mother acknowledging  under cross-examination their factual basis;

   v.the clinical and other evidence of Dr Boots or relating to him which was never under challenge;

   vi.the evidence of [HK], Psychologist;

   vii.the evidence of the appellant father’s mother … which was in affidavit form and in oral form as she was required for cross-examination;

   viii.the unchallenged evidence of Dr Balint.”

2. According to the submissions of Senior Counsel for the husband, the evidence of (i) RP (the former wife of the wife’s brother, JA) and of (ii) Stephen Pinkus, which, it was claimed, his Honour did not take into account, related to the husband’s claim that the children would be at risk of sexual abuse from the wife’s brother, JA. We have already considered and found no substance in the complaints concerning his Honour’s conclusions in relation to the risk of abuse from JA. Thus we need not consider further in this context the evidence of RP or Stephen Pinkus.

3. The complaint concerning (iii) the file relating to JA and RP was expressly not pressed before us by Senior Counsel for the husband.

4. The wife’s diaries (iv) were referred to by his Honour in the following passages in his judgment:

   57.During the course of the hearing the wife was cross-examined and submissions were made in relation to the wife’s diaries/journals.

   58. Dr Sale has provided assistance in relation to these.  In that regard he says:

   “The question arises whether the contents of the journal, the history provided by the father, and the involvement with sundry psychotherapists and counsellors might indicate psychopathology or personality disorder in the mother.  There has been nothing unusual observed during interview.  It might be argued that the mother has worked as a actor, quite successfully, and that this would readily allow her to present a picture of complete normality.  It is difficult to entirely dismiss such a possibility, but similar argument might be put about the father (in that psychiatrists are generally skilled in monitoring and controlling their own emotional reactions).

   The journal material, whilst it variously reflects concerns about body image, occasional problems with anxiety symptoms, use of alcohol and earlier adolescent adjustment issues, are not suggestive of any persuasive psychopathology.  My impression is of someone who has moved in circles where therapy, searches for self-discovery and interest spectrum were reasonably common place.  Any tendency to forever look for the meaning and self awareness might be further heightened by having a partner who practices in the most introspective discipline of them all, psycho-analytic psychotherapy.  Therefore, my impression is that much of [the wife’s] journal content and her involvement in therapy say more about her previous social environment than about her individually”.

   …

   80.The wife was cross-examined at length about her journal.  This was a private journal written for herself.  Her evidence was that it was written at the suggestion of the husband.  It was not intended to be evidence in a court but was a journal reflecting her feelings at the time it was written.  The wife gave evidence that it was a statement of her mood or feelings at the time she wrote them down and the expressions were not weighed up or considered, they were subjective.  

   81.I find that the journals are a reflection of the inner feeling of the wife, which would not normally be available to a court, and cannot always be given significant weight as evidence of truth to the matters contained in them.   Further, the material in the journals must be seen in the context of being a journal and written in completely unsympathetic and unweighed terms. 

   …

   171.The wife’s mental state was raised by the husband in terms of the journal and material that she had written in that journal.  I refer to the evidence and findings set out in these reasons.  I am satisfied that the wife’s mental state is such that she is able to well care for the children and meet the needs of the children.  She has demonstrated this with regard to the children through the whole of their lives.  She continues to do so.  The wife is interested in the children’s schooling and is actively involved at the school.  When she discovered the extent of the attacks upon herself and [GM] in the telephone conversations between the husband and the children the wife took steps to bring that behaviour to an end and did so by way of the order made by Justice Hannon on in 2004.  Yet she recognised that from time to time [J] would need to call his father and facilitated those calls when [J] expressed wishes in that regard.  I refer to my earlier findings about the emotional stability of the wife.

1. Given these references by his Honour to the wife’s diaries, it cannot be said that they were not considered by him. Indeed Senior Counsel for the husband conceded before us that the challenge here was only one of weight. The difficulties which confront a challenge to a discretionary judgment based only on matters of weight are well established by the authorities. (See, for example, Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719). Nothing has persuaded us that the present challenge should succeed.

2. Although the evidence of (v) Dr Boots which was before the trial Judge had not been included in the material before us, we were told by Senior Counsel for the husband that that evidence would support the husband’s claim that he had been misled by the wife in early 2003 concerning the state of  the marriage. As we indicated to Senior Counsel for the husband during the hearing of the appeal, it is difficult to see how such evidence could be sufficiently relevant to the matters concerning the children’s future which his Honour had to decide in late 2005 – early 2006, that his Honour’s discretion could be said to have miscarried because of a failure to consider it.

3. In relation to the evidence of (vi) the psychologist, HK, his Honour said:

   23.The husband relied upon two affidavits of [HK] sworn
   8 May 2003 and 28 August 2005.  [HK] was a psychologist who was treating the wife and who owed an obligation to the wife in terms of confidentiality.  Notwithstanding those obligations, [HK] provided affidavits to assist the husband in his litigation.  Included in her affidavit of the 28 August 2005 were assessments of the wife made by [HK] as her psychologist.  Whilst [HK] was obliged to provide documents on subpoena her overt assistance to the husband in providing evidence seems to be in violation of her duty of confidentiality to the wife.  I infer that the husband discussed the wife’s psychological health with [HK] (or if not the husband then someone on his behalf). 

   24.I infer that the husband, either directly or indirectly, was able to persuade this health professional to ignore her duty of the confidentiality to the wife, which duty she would normally have been obliged to provide to the wife.  As a consequence, I attach some, but not great weight to the evidence of [HK].  It is also indicative of the lengths that the husband will go to achieve the result that he seeks.

   25.The husband gave evidence that he visited [HK] at her home and that she was his supervisor prior to [HK] and his wife entering into a professional relationship.

4. It will thus be seen that his Honour was not prepared to attach great weight to HK’s report apparently because he considered that she had breached her duty of confidentiality to the wife. Whether or not his Honour was entitled to take that approach to HK’s evidence ultimately matters little, because as we explored with Senior Counsel for the husband at the hearing of the appeal, the assessments of the wife made by HK had been made during consultations in 1998, that is, some seven years prior to the trial. Having regard to that fact alone, his Honour would have been entitled to give HK’s evidence little weight.

5. The evidence of (vii) the husband’s mother to which Senior Counsel for the husband referred in this context, was contained in paragraphs 9 and 10 of an affidavit sworn by her on 20 October 2005 (filed 26 October 2005), and was also directed to circumstances concerning the end of the parties’ marriage and the wife’s move with the children to Tasmania. As we earlier indicated, we consider those matters to have had limited relevance to the matters which his Honour had to decide.

6. There was some dispute before us as to whether the affidavit of Dr Balint (viii) had been put into evidence before the trial Judge. But whether it was or not, the affidavit was directed to the grief reaction of the husband to the breakdown of the marriage and to the children’s move to Tasmania. Again the relevance of these matters to the applications which the trial Judge had to decide would be minimal.

(4) Extraneous and/ or irrelevant matters

1. By Ground 4 it is asserted that his Honour “erred in allowing extraneous and or irrelevant matters to guide or affect him, by reason of which, his discretion manifestly miscarried in that:

   i.he gave undue weight to the appellant father ‘retaining’ the children in 00.05.03;

   ii.appeared to give weight to the therapy that the appellant father had undertaken in a professional context or otherwise;

   iii.he gave undue weight [sic] his finding that the appellant father knew about the ‘separation’;

   iv.he gave undue weight to and was critical of the appellant father had engaged a private investigator to conduct lawful surveillance of [GM];

   v.he gave undue weight to the appellant father discussing the mother with [HK] in circumstances where [HK’s] clinical and other notes were the subject of subpoena and or in finding that [HK] had breached a duty of confidentiality in providing affidavit(s) to the appellant father in the case.”

2. No oral submissions were made in support of this ground, with Senior Counsel for the husband informing us that he relied on paragraph 38 of the written submissions. It appears from that paragraph that the complaints in Ground 4 are directed to the following passages in his Honour’s judgment:

   7.        The essential background and facts are as follows:- …

   f)    The wife says that the marriage came to an end in November/December 2002.  The husband asserts that he regards the marriage as coming to an end on 1 March 2003.

   …

   j)    On 9 December 2002 the wife said that she informed the husband that the marriage was over and that she proposed to continue residing in Tasmania with the children.

   …

   11.The husband is a psychiatrist by occupation.  In his evidence the husband provided information as to his “psychotherapy training”.  The husband tendered in evidence certificates with regard to that training which he undertook in this field.  In terms of this training, he said that he undertook psychotherapy primarily as training for about four to five years as it was a qualification pre-requisite.  His evidence was that this therapy training took place initially twice per week for the first year or so then three times per week then four times per week.  When asked questions he said that it was “initially a therapy experience” and then it developed into training.  When pressed by counsel for the wife he said that it was for both training and personal therapy.

   …

   18. The husband asserts separation occurred in March 2003.  Yet on the evidence available to me it is clear that the wife left for Tasmania in early November 2002.  She returned to Sydney in late November 2002 and the parties had some discussions.   From their emails, it is clear that the husband knew that the wife was unhappy with the marriage and was unlikely to return to Sydney when she went to Tasmania on
   7 December 2002.  Again his use of language with regard to separation shows his ability to prevaricate and endeavour to make the facts suit the outcome that he seeks to achieve.

   19.I am satisfied that the husband was aware that his marriage was in difficulties in November 2002.   From the evidence, I find that the wife returned to Tasmania on or about 7 December 2002 and, on
   9 December she says that she telephoned the husband and informed him that she was intending to live in Tasmania with the children from that time onwards, and I accept that evidence.  The husband admitted he obtained family law legal advice in December 2002. When the wife returned to Sydney for a short visit on 2 January 2003, she packed boxes and had a removalist take items of property to Launceston.  I am satisfied that the husband knew that the marriage was at an end by 9 December 2002, although he harboured some hope that the relationship could be restored.  The wife had commenced a relationship with [GM] in late November 2002 and I find that she had determined that the marriage was at an end.  The husband could not accept the end of the marriage and did not do so until he confirmed that there was a relationship between the wife and [GM] in late February 2003 or early March 2003.

3. It will be seen that Ground 4 is essentially a weight-based challenge. We have already referred to the difficulties which such a challenge faces. We have not been persuaded that there is merit in this challenge.

(5) Alleged Mistakes of Fact

1. By Ground 5 it is asserted that his Honour “erred in exercising the discretion in that he mistook facts, the cumulative effect of which has produced a result which is plainly wrong and inconsistent with where the best interests of the children lie, namely;

   i.in the absence of any conclusive evidence, his Honour inferred and concluded that the respondent mother did not have legal advice prior to 00.04.03 which finding, clearly weighed heavily on other findings his Honour made in relation to the appellant father’s conduct and bona fides;

   ii.he wrongly concluded or implied that the lump sum arrears and child support which [GM] paid, and commenced to pay [AM] in or about 00.05.05, was contemporaneous with, and or a consequence of his commencing employment with [a mining company], which the evidence discloses, actually occurred in June of the previous year 2004.

   iii.he wrongly inferred or concluded that the telephone conversation that [DJ] said was approximately 45 minutes in total duration, albeit two separate calls in circumstances where the witness himself, under cross-examination conceded that he had only one single telephone conversation of approximately 25 minutes with the appellant father and that the other telephone call on the same day was with his partner [AM].

   iv.he wrongly concluded that the respondent mother and [GM] (her current partner) relationship developed to a stage in early 2003 where they commenced to live together.”

2. We were informed by Senior Counsel for the husband that the complaint in paragraph (i) of Ground 5 was directed to his Honour’s statement in paragraph 49 of his reasons that “[t]he wife did not seek legal advice before April 2003”, with Senior Counsel submitting that there was nothing before his Honour to permit him to come to that conclusion.

3. We appreciate that the circumstances surrounding the breakdown of the marriage, and in particular the wife’s behaviour at that time, were clearly matters of significance for the husband. Nevertheless we are unable to understand why if the statement in question could not in fact be sourced to the evidence, this error would provide sufficient reason for our interference with his Honour’s decision concerning the future arrangements for the children of the marriage.

4. Again we were informed by Senior Counsel for the husband that paragraph (ii) of Ground 5 was directed to his Honour’s conclusions in paragraph 52 of his reasons. In our view that paragraph needs to be read with the preceding paragraph, paragraph 51:

   51.The depth of the husband’s feelings of antipathy to the wife and [GM] is reflected in the evidence provided by [DJ].  He gives an objective sense of the determination of the husband to win and the husband’s complete lack of insight into his own behaviour and its negative effect on the children.

   52.This is further shown in terms of the husband’s aggressive forensic challenge on any witness whose views differ from his.  [DJ] was aggressively attacked in cross-examination and it was put to him that his evidence was fabricated as a consequence of the payment of child support.  The same proposition was put to [GM].  I reject the submission by the husband that [DJ’s] evidence was elicited by to [sic] payment of increased child support paid by [GM] for his children.  The increase in child support payment by [GM] was a consequence of [GM] obtaining full time employment with [a mining company] some time before.

5. It should be explained that DJ is the partner of the former wife of GM (the wife’s new partner). The basis of the husband’s complaints regarding his Honour’s conclusions in paragraph 52 apparently related to the timing of GM’s employment with [the mining company], and thus his capacity to pay child support. However before us Senior Counsel for the husband accepted, sensibly in our view, that the evidence about this matter was not as clear as the ground asserted. But again even if his Honour was mistaken as to this part of the evidence, it is difficult to understand the relevance of such a mistake to the matters which his Honour had to decide.

6. The complaint in paragraph (iii) of Ground 5 is directed to an alleged mistake or mistakes of fact in the following paragraph of his Honour’s judgment:

   75.[DJ] was cross-examined and gave evidence concerning the husband’s continued denigration of the wife and her [sic] [GM].  [DJ’s] affidavit sworn 17 August 2005 included evidence in relation to a conversation in 2005 between himself and the husband.  [DJ] was criticised for saying that the telephone conversation “lasted for some forty five minutes or thereabouts” [paragraph 9] when in fact the telephone records seem to show the telephone conversation lasted about twenty five minutes and commenced about 10.38am.  There was a subsequent telephone call to the same telephone number, on the same day, which was timed at 12.51pm and ran for about 14 minutes 23 seconds.

7. Following our enquiries of Senior Counsel as to exactly what the alleged mistake or mistakes of fact on the part of the trial Judge were, it emerged that the real complaint could only be that his Honour had preferred the evidence of DJ to that of the husband about the length of a telephone conversation between them both. His Honour was entitled to prefer the evidence of one witness over another, and thus the complaint has no merit.

8. We did not understand any submissions to be directed to paragraph (iv) of Ground 5, which asserts that his Honour was wrong in concluding that the relationship of the wife and GM had developed to a stage in early 2003 where they commenced to live together.

(6) Weight attributed to the evidence of each party

1. Ground 6 asserts that his Honour “erred in giving excessive weight to relevant facts and circumstances that favoured the respondent mother and inadequate weight to facts and circumstances favouring the appellant father, the cumulative effect of which has produced a result which is plainly wrong and inconsistent with where the bests [sic] interests of the children lie, including:

   i.his overall characterisation [sic] the appellant father as a person who takes minor incidents and blows them out of proportion and or instigated and ran irrelevant and worthless issues;

   ii.excusing the respondent mother’s lack of disclosure, frankness or of telling untruths by accounting for all of it as a [sic] understandable and proper response to what his Honour identified as unacceptable behaviour or conduct of the father.”

2. Senior Counsel for the husband informed us both orally and in written submissions that this ground did no more than repeat the arguments in support of all other grounds.

(7) Alleged non-acceptance of husband’s evidence

1. By Ground 7 it is asserted that his Honour “erred in that:

   i.he failed to assess and analyse the totality of the appellant father’s evidence against the background of the other evidence; and or

   ii.found that in the result that where there is a conflict or dispute about the facts, he generally preferred the respondent mother’s evidence unless the contrary is corroborated or supported by other evidence; and or

   iii.drew adverse inferences against the appellant father that were not reasonably available to him on the evidence; and

   in all of the circumstances:

   iv.failed to use or has palpably misused his advantage; and or

   v.acted on evidence which was inconsistent with facts incontrovertibly established by the evidence; and or

   vi.acted on evidence which was glaringly improbable;

   the cumulative effect of which has produced a result which is plainly wrong and inconsistent with where the best interests of the children lie.”

2. The thrust of this ground and the specific evidence to which it is directed can best be understood by reference to paragraphs 53, 55 and 56 of the written submissions on behalf of the husband:

   53.His Honour has failed to use or has palpably misused his advantage in that he failed or refused to weigh and assess responsibility for the absence of witnesses such as [FA], [AM], Sexual Assault worker(s) and Police; responsibility for the absence of evidence relating to the alleged abuse of [K]; evidence such as the [RP v JA] Court file/ the respondent’s journals; shortcomings and inadequacies of the expert evidence that that of the Regulation 8 Counsellor; or failing or refusing to give any or any adequate weight to evidence corroborative of the appellant’s case e.g. [HK], Balint, Boots, the respondent’s journals; to weigh and assess the inadequacies of the evidence of [DJ] and in permitting it to be presented in the form it was, under objection, and, finding that the appellant made an aggressive forensic challenge to any witness whose views differ from his, citing [DJ] as a witness who was aggressively attacked in cross-examination [AB1 p42 para 52].

   …

   55.His Honour acted on evidence which was glaringly improbable, including:

   (ii)The respondent’s assertion that her brother [JA] had made the Pinkus Report dated 27.06.02 available to her some time after it was made available to [JA] and [RP] and that sometime prior to the respondent travelling to Tasmania on 02.11.02 she discussed it with the appellant who allegedly on a number of occasions expressed views that [JA] had not acted as asserted by [K];

   (ii)That the appellant had said as much to [JA] sometime in early 2003;

   (iii)That the appellant on telephoning [AM], to find that she was not in, engaged in the conversation alleged by [DJ] and over a period of 40 minutes which was shown in any event to be untrue. Refer also to AB10 page 1646 where counsel for the respondent puts to the appellant that [DJ] had not said “Dr Sale writes a report for whatever side is paying him?”.

   (iv) That [DJ] was ‘objective’ – that is, gave ‘an objective sense’ of the determination of the husband to win and the husband’s complete lack of insight into his own behaviour and it’s negative effect on the children.

   56.Whilst it appears to be a finding that might be specific to the property proceedings, his Honour at AB1 p114 para 236 found that in the result that where there is conflict or dispute about the facts, he generally preferred the respondent’s evidence unless the contrary is corroborated or supported by other evidence. His Honour did not observe the rule enunciated and or restated in such authorities as Malco Engineering Pty Ltd v Ferreria (1994) 10 NSWCCR 117 at 118 (‘Malco’). His Honour failed to assess and analyse the totality of the appellant’s evidence against the background of the other evidence.

3. In his oral submissions Senior Counsel for the husband focussed only on the matter contained in paragraph 56 of the written submissions.

4. In paragraph 236 of his Honour’s reasons he said:

   236.Counsel for the husband submitted that I ought to prefer the evidence of the husband to the wife.  The wife was cross-examined for over two days.  In that cross-examination (largely dealing with children’s issues) she conceded appropriately when she made an error and I found her to be a witness of honesty.  I believe she took care to present her evidence accurately.   The husband, on the other hand, seems still engrossed in these proceedings, he is convinced by the merits of his own cause.  In the result where there is a conflict or dispute about the facts on property, I generally prefer the wife’s evidence unless the contrary is corroborated or supported by other evidence. 

1. As we understood Senior Counsel’s submissions, the perceived error in paragraph 236 was the generality of the finding against the husband. Given the extent of his Honour’s recording and analysis of the evidence, which preceded his conclusions in paragraph 236, the conclusion in paragraph 236 was open to him.

(8) The expert evidence of the psychiatrist, Dr Sale

1. By Ground 8 it is asserted that his Honour “erred in admitting and in giving the weight that he did to the opinion(s) contained in the Order 30A Rule 4 report of Dr Ian Sale dated 27.01.05, in that:

   i.he failed to have any or any proper regard to the clear and fundamental breaches of and irregularities in relation to the Rules governing the appointment, conduct and obligations of such single experts and the party’s [sic] instructing them or involved therewith;

   ii.he failed to have regard to settled authority relating to the admission and or reliance upon expert opinion evidence as an exception to the admission of opinion evidence under the Evidence Act and or at law.

   iii.he failed to give any or any sufficient weight to common ground that existed, at the very least between the children’s representative and the legal representatives of the appellant father in relation to inadequacies and or created an ‘evidential lacunae’ created thereby.”

2. In the written submissions in support of this ground (to which nothing was added by Senior Counsel in his oral submissions), it was asserted that there were “substantial and fatal irregularities in respect of the appointment and conduct” (in the sense, it would seem, of his approach adopted in his investigations and report) of Dr Sale.

3. The history of Dr Sale’s appointment was set out in detail in the written submissions of counsel for the respondent wife, which were adopted on this point by the Independent Children’s Lawyer. No issue was apparently taken on behalf of the husband with that history. It is instructive to summarise that history because it demonstrates that there can be no merit in the challenge now made by the husband to the appointment of Dr Sale. In summary form, the history (as recorded by counsel for the wife) is as follows.

   ·In interim proceedings for residence commenced on 24 April 2003, the husband deposed in an affidavit in support of his application, sworn on 8 May 2003, that the wife had a troubled background and that the child [J] was suffering emotional consequences caused by the circumstances of the situation.

   ·On 7 May 2004 the husband applied for the appointment of a psychiatrist arising from the above facts. This application came before Dessau J on 10 June 2004, who ordered: “5. That a Family Report shall be prepared by a psychiatrist nominated by the child representative, after consultation with each party’s solicitor.”

   ·In her Honour’s reasons for her order, she referred to the differences between the parties as to the identity of a suitable reporting psychiatrist.

   ·Patrick Fitzgerald of the Legal Aid Commission of Tasmania, who had been appointed by her Honour as the Children’s Representative, consulted with the parties as to the identity of the expert. The husband (who is himself a psychiatrist) consented to Dr Sale being appointed as the psychiatrist. (Subsequently during the trial, counsel for the husband told his Honour that the accepted Dr Sale’s qualifications.)

   ·On 12 October 2004 Mr Fitzgerald sent Dr Sale a copy of Court documents (including Dessau J’s reasons for judgment).

   ·Dr Sale’s interviews for the preparation of his report extended from 21 September 2004 until 24 January 2005. His report was issued on 31 January 2005.

   ·“No demur from the adequacy of the report” was made by any party or their representatives until the Children’s Representative, by letter dated 1 June 2005 (presumably to the solicitor for each party) said “independent evidence of social interactions of the children with their respective parents (was needed)”. He further referred to the need for “independent evidence of the impact upon the children of the respective parents’ proposal including conditions sought to be imposed by the parties on the parenting orders to be made”. With this letter he enclosed a copy of a latter to the Mediator Manager, Family Court of Australia, Hobart, of the same date suggesting a Family Report might well be ordered pursuant to s 62(g) of the Act, and in which he commented that Dr Sale’s report specifically focussed on the adults’ emotional and psychiatric health and its impact on their capacity to parent.

   ·On 8 June 2005 there was a directions hearing before Mushin J at which time the Children’s Representative sought an order for a Family Report. The husband’s counsel opposed this request and sought a further report from a psychiatrist other than Dr Sale. This application was opposed by the mother’s counsel and the Children’s Representative. Mushin J declined to order a further Psychiatric Report and instead ordered a Family Report.

   ·On 6 July 2005 the father’s application for leave to appeal from Mushin J’s order and an application for a stay of the operation of his Honour’s order was filed.

   ·On 11 July 2005 the application for a stay came before Mushin J who delivered reasons for judgment in which he explained his view that different psychiatrists were not needed and that if it were appropriate he would expect that Dr Sale would update his report. He refused the application for a stay.

   ·On 9 August 2005 the husband caused to be filed a notice of discontinuance of his application for leave to appeal Mushin J’s orders of 8 June 2005.

   ·On 30 November 2005 (being the second day of the trial) the husband’s counsel addressed argument to the trial Judge seeking that Dr Sale’s report be struck out. His Honour refused this application providing reasons for so doing. (See further below.)

   ·During the trial, Dr Sale was examined in chief by the Children’s Representative and was cross examined by the husband’s counsel and by the wife’s counsel.

4. Assistance in understanding Ground 8, and also our conclusion (which we will shortly reach) that the ground has no substance, will be gained from a consideration of his Honour’s reasons for rejecting the husband’s application that Dr Sale’s report not be received into evidence; those reasons are as follows (Transcript, 30/11/05 p 125 line 25 – p 126 line 44):

   There is an application before me to reject the report prepared by Dr Sale as an expert witness, that report being dated 27 January 2005 and released apparently on 31 January 2005. The basis of that application by the husband is the methodology employed by Dr Sale; the lack of need now for a report of Dr Sale, bearing in mind the family report prepared by Malcolm Cunningham and released in August 2005 – a suggestion that there are a lack of terms of reference to the report to base or found the report from Dr Sale, concerns about the methodology employed by Dr Sale including the use of significant material which may or may not be evidence before this court, a complaint that Dr Sale saw the child [L] in circumstances which the husband regards as unfair as he was not present and that Dr Sale does not come to a satisfactory conclusion.

   These particular proceedings have had a very long embryonic stage; they have gone on for some time. The report from Dr Sale came out of orders made by Dessau J on 10 June 2004 and I’ve been provided with a copy of her reasons in putting in place orders. The husband also complains that the rules have not been complied with with regard to Dr Sale’s report in a number of areas. The husband also complains, and this seems to be with the agreement, on a factual basis at least, of the child representative, that there’s a void in the areas which Dr Sale deals with. On this basis the husband asserts that the whole of the evidence should be rejected.

   There is also a suggestion, I think, that the doctor does not have expertise in relation to children’s matters although I think that was ameliorated in that he subsequently hasn’t expertise with regard to social dynamics. I’m not quite sure about that submission at the end but if Dr Sale is to give evidence I’m sure that aspect of it can be dealt with. There’s no declaration with the report in accordance with the rules. The solicitor for the children makes a first and fundamental submission that what is in the report which is so fundamentally wrong as would cause it to be rejected other than dealt with on questions of weight? …

   …In terms of the report not strictly complying with the rules, the child representative takes me to rule 15 point 64 which talks about the consequence of non-compliance. There is also, of course, provision in the rules to relieve compliance with any part or whole of those rules. Nothing was put in submissions as to the integrity of the reporter. There is a report from a family reporter which deals with the social dynamics and I note there’s no submissions made as to any questions put to the single expert, notwithstanding that his report has been available since January this year, nor have I been taken to any application for appointment of an adversarial expert. I note that her Honour Dessau J determined that this was a matter where a psychiatric report was necessary.

   The submissions of the children’s representative was echoed by Mr Crawford on behalf of the wife. It always worries me where there is a question of form overcoming the substance. I don’t know what weight I can or will attribute to the report of Dr Sale. I find that there isn’t sufficient material there for me to reject the report in its entirety, as such it is allowed.

   A second question arose with regard to the child representative contacting Dr Sale. There were few submissions in that regard. I’m aware that in the children’s cases program in Parramatta and Sydney the judges routinely vary the rules to provide that the children’s representative can have almost unfettered contact with experts on the basis that it is the role of the children’s representative to put proper material before the court in the best interests of the child. Accordingly I give leave under the rules for the child representative to contact Dr Sale. I direct the child representative to make a note of what was said and provide that to the counsel for both the husband and the wife.

5. As to the specific complaints made in Ground 8 concerning Dr Sale and his report, we accept the submissions of counsel for the wife to the effect that:

   i.Dr Sale was able in his oral evidence to provide an explanation for his failure to sign his affidavit. Furthermore in the course of giving his reasons for receiving Dr Sale’s report the trial Judge relied on the Rule which permitted informalities to be waived.

   ii.The husband’s counsel did not raise the complaint in Ground 8 (ii) at trial when any defect could have been cured by leading evidence from Dr Sale and thus it is not now open to him to do so on appeal.

   iii.That Dr Sale’s report dealt with the matter, so far as he was able to deal with the matters referred to him in the reasons for judgment of Dessau J. To the extent that there remained an “evidential lacunae” following Dr Sale’s report that was dealt with by Mushin J’s order for the preparation of a family report.

6. Finally, in connection with the husband’s challenge to his Honour’s acceptance of Dr Sale’s Report, we think it necessary for the sake of completeness to set out (or here repeat) the major reference to, and observations concerning, Dr Sale’s evidence, which his Honour made in his reasons for judgment:

   9.The husband objected to Dr Sale’s evidence being admitted into evidence.  I delivered an ex tempore judgment with regard to Dr Sale’s evidence on day 2 of the hearing and admitted that evidence, although the weight that would be attached to that evidence was expressed to be the subject of submission at the conclusion  of the evidence.

   …

   54.Dr Sale prepared a report as a single expert.  I accept Dr Sale’s qualifications and I prefer his version of the facts with regard to what was said between he and the husband.  The husband said that much of the time at the interview was spent in relation to incidents which did not relate to the subject of the report.  Dr Sale gave evidence that he may have raised a few matters to settle the husband, in terms of the interview, but that the vast majority of the time in the conference was spent collecting information for his report.  Dr Sale was criticised for interviewing [L] on 24 November 2004 without notifying the husband. Whilst it may have been preferable for the husband to have been informed I do not criticise Dr Sale in that regard.

   55.Dr Sale observes [Single expert report 31 January 2005 page 15 and 16]:

   “Turning to the father’s situation, there is no indication of any formal clinical condition, it is clear that he has not coped well with the break-up of his marriage.  Reference has already been made to the influence of an earlier loss i.e. the death of Ruby, something which has helped fuel the intensity of his current distress, which is profound.  There are also personality issues, eluded to in Dr Boots’ notes, and evident in the interview.  This is not a man who would cope well with humiliation and loss.  There is, I believe, an element of what is termed in psychiatry as narcissistic injuries.

   One would ordinarily expect that an intelligent and cultured man would understand how to speak to his children in situations as this.  They would be aware of their child’s level of social, emotional and cognitive development.  They would also be aware of the importance of not involving the child in the details of the conflict.  One would especially expect this, from someone who works as a psychiatrist, particularly when they have undergone a period of training involving rigorous self-discovery.

   The content of the telephone calls recorded by the mother demonstrates that intelligence and training have been overcome by more fundamental emotions such as rage, or self-deceiving psychological processes such as denial.  In short, [the husband] cannot tolerate that his wife has left him, or more specifically that he has lost her to another man.  Similarly, he cannot tolerate the loss of his children. His behaviour in trying to reverse this situation has been counter productive.

   It is extraordinarily sad that this opportunity for building a relationship with his children has, at least in part, gone to waste in his futile attempts to persuade them that their mother has behaved badly.  One example of lost opportunity is his failure to spend time with his children in Tasmania.

   The children’s situation has been outlined in the body of this report.  [L] is too young to have anything of the vaguest awareness of the conflict between her parents. The situation for [J] is more difficult.  He has very much been caught up in the parental conflict, and has adapted to this by having two worlds, one in Launceston with his mother, and the other involving time with his father during school holidays, or by telephone.  The information available suggests that there have been time when he has found this role difficult to manage.  It is obviously not appropriate for a boy of this age to be told off, and perhaps to feel responsible for, his father’s emotional pain.

   Summing up, while the mother may have experienced
   non-specific symptoms from time to time, and may have grown up in a family that had its problems, there was nothing in the information available that suggests that any such problems were of a degree that would outweigh the distress caused to the children by reversing their current residential arrangements.

   In relation to the father, he obviously loves his children deeply and he is suffering personally, but his inability to adjust to the changes that have occurred has been a burden on his children, particularly [J], and a constraint of the development of the relationship he has with his children”

   56.I find that Dr Sale was correct in terms of his assessment of the husband and I prefer his evidence to that of the husband.

   57.During the course of the hearing the wife was cross-examined and submissions were made in relation to the wife’s diaries/journals.

   58.Dr Sale has provided assistance in relation to these.  In that regard he says [Single expert report 31 January 2005 page 15]:

   “The question arises whether the contents of the journal, the history provided by the father, and the involvement with sundry psychotherapists and counsellors might indicate psychopathology or personality disorder in the mother.  There has been nothing unusual observed during interview.  It might be argued that the mother has worked as a actor, quite successfully, and that this would readily allow her to present a picture of complete normality.  It is difficult to entirely dismiss such a possibility, but similar argument might be put about the father (in that psychiatrists are generally skilled in monitoring and controlling their own emotional reactions).

   The journal material, whilst it variously reflects concerns about body image, occasional problems with anxiety symptoms, use of alcohol and earlier adolescent adjustment issues, are not suggestive of any persuasive psychopathology.  My impression is of someone who has moved in circles where therapy, searches for self-discovery and interest spectrum were reasonably common place.  Any tendency to forever look for the meaning and self awareness might be further heightened by having a partner who practices in the most introspective discipline of them all, psycho-analytic psychotherapy.  Therefore, my impression is that much of [the wife’s] journal content and her involvement in therapy say more about her previous social environment than about her individually”.

   …

   89.In his report on the parties Dr Sale observed [Single expert report 31 January 2005 page 3 and 4]:

   “[The wife’s] account of family life was that it was secure and stable, although her father was often absent due to his involvement with his business. On the issue of sexual abuse, now a prominent feature in this dispute, [the wife] told me that there had been an occasion when she was about ten years old when she saw [JA] masturbate. He would have been about thirteen years old at the time.  She was unable to recall the context of the incident, and denied that there was any touching or intimate contact.

   She said that other matters pertaining to supposed sexual abuse within her family had arisen out of her participation in psychotherapy.  She referred in particular to her attendance upon [the therapist], apparently a self-styled psychotherapist who was at the time practicing in Balmain (an exert from a web site referring to his therapy as appended).  [The therapist] had been recommended by a friend.  [The wife] had seen him on about six occasions.  She stated that from the outset he had intimated that there were repressed memories of earlier sexual abuse. His modus operandi including role play and “deep muscle relaxation” [which may equate to hypnosis].  She later learnt that others who had consulted with [the therapist] were proan to recover memories of earlier abuse.  The implication of this history was that this were “false memories”, a problem that tends to be associated with particular therapeutic “styles and practices”.

   [The wife] appears to have been receptive of the notion of participating in therapy.  Other than [the therapist], she had seen a Ms [B] on one occasion (also recommended by a friend), a female therapist in New Town (name forgotten), a [HK], over a period of about six weeks, and about four consultations with Dr John Boots, a psychiatrist”.

   90.Dr Sale had listened to the audio tapes and read the transcript.  In cross-examination he said he was surprised at the husband’s distress and for him to lose perspective to that degree.  There were no issues about [L’s] mental state, only an issue of speech development.  No request was made of Dr Sale to answer questions under the Rules and the first he was aware of the nature of the concerns of the husband was in the witness box during cross-examination.

   …

   123.From the evidence I find that the husband takes minor incidents and blows them out of proportion.  This can be seen in this instance as well as his allegation as to all the time spent between he and Dr Sale on non-relevant events in their meeting, his evidence of the events with [JA] and the arm up the back.  These all have a sense of exaggeration and when challenged the husband claims that it is always the other witnesses who it is put are wrong or exaggerating, never the himself. 

1. Again no oral submissions were put in support of this ground, with Senior Counsel informing us that he relied on paragraphs 80 to 85 of the written outline. Again the submissions contained in the written outline do not greatly advance the appellant’s case in that they only repeat the ground and then contain a brief general discussion of the rule in Jones v Dunkel.

2. We find greater assistance in the submissions of counsel for the respondent wife, which again were adopted on this point by the Independent Children’s Lawyer, and which deal directly with each of the persons referred to in Ground 13. Having regard to those submissions, we accept with regard to each of the persons mentioned in the ground:

   (i)that no issue has been identified which would require the failure to call AM to be explained, and that in any event, she could have been subpoenaed by the husband.

   (ii)Mr Pinkus was available for cross-examining, but counsel for the husband did not require him.

   (iii)Other witnesses had already given evidence of the events that RM may have witnessed, and in addition his Honour’s findings on those events were limited to matters of common ground.

   (iv)There was no significant issue which required the calling of Dr AB.

The remaining matters which were the subject of the unsuccessful further evidence application

1. The first of the two remaining matters in relation to which the husband unsuccessfully sought to adduce further evidence before us in support of his appeal, apparently emerged in cost proceedings between the parties subsequent to the trial, and related to the date when the wife had first sought legal advice regarding her position in relation to the breakdown of the marriage.  The evidence sought to be adduced would apparently establish that in early January 2003 the wife had sought such legal advice and would thus show that his Honour was in error when he said in paragraph 49 of his reasons that the wife did not seek legal advice before April 2003.

2. As we have earlier indicated the husband clearly feels extremely aggrieved concerning the circumstances of the breakdown of the marriage and the wife’s behaviour at that time.  It is very clear that he resents the trial Judge’s preference for the wife’s evidence regarding these matters.  However even if the further evidence did establish a mistake of fact on the trial Judge’s part as to the date when the wife first sought legal advice, it is difficult as we have also earlier observed in related contexts, to understand how such an error would be sufficiently material to undermine his Honour’s conclusion reached some three years later as to the future living arrangements for the children.

3. The final matter to which the further evidence application was addressed related to the husband’s concerns regarding the child L’s speech, and the wife’s alleged failure to arrange appropriate speech pathology.  Although this was an issue at trial, the report which the husband sought to put before us was prepared after the trial and judgment. 

4. Having regard to the observations of the High Court majority in CDJ v VAJ (1998) FLC 92-828 (particularly at paragraphs 118–119 and 147–152), we saw no justification for the admission of the further evidence relating to L’s speech condition.

Conclusion in relation to the appeal against the parenting orders

1. For the reasons given above we have found no substance in any of the many grounds of appeal. Nor would we allow the appeal and order a new trial on the basis of the further evidence sought to be adduced by the husband.  Thus, the appeal against the parenting orders must be dismissed. 

2. However, given that for the most part the grounds of appeal, and thus our discussion of them, did not go to what can be regarded as the heart of the trial Judge’s decision, being his analysis of the matters (then contained in s68F(2) of the Act), which he was required to consider in determining what future living arrangements would be in the children’s best interests, we think it necessary, and at the risk of unduly lengthening this judgment, to set out the substance of that analysis. We do so because, in our view, that analysis well demonstrates the ultimate correctness of his Honour’s decision that the children should reside with the wife. The substance of his Honour’s analysis under relevant headings is as follows:

   S 168F(2)(a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes;

   149.In this case [J] is currently aged 8 and [L] aged 5.  [J] has expressed a clear preference to remain in the care of the wife [Family report of 23 August 2005 paragraph 28]. …

   150.The husband submits that the wishes expressed by [J] on 12 May 2003 when he said he does not want to live in Tasmania should be a matter which I have significant regard to.  This expression must be seen in the context of the retention of [J] in Sydney in April/May 2003 and in the immediate aftermath of the event.  In addition some two and a half years have passed since that time.  I do not give great weight to that expression.  I do give weight to the views expressed to the family report.  There is no evidence of the wishes of [L].  On the evidence I am satisfied that [J] has a strong wish to remain with his mother.

   S 168F(2)(b) the nature of the relationship of the child with each of the child’s parents and with other persons;

   151.[J] and [L] have been cared for by the wife from the date of their birth.  This continued through the separation in December 2002 and to the present time.   They have a close and loving relationship with the wife in which they have flourished.  [J] and [L] have a close and loving relationship with [GM] [who], on the evidence before me, is appropriate in terms of the way he treats these children.  He does not attempt to subvert the role of the husband. 

   152.The three children [J], [L] and [D] share the same household and all seem to relate well.   With that forms structure.

   153.The children relate well to the wife’s parents and to their extended family in Tasmania.

   154.The husband has a close and loving relationship with [J] and [L]. He was significantly involved in their lives up to separation and has continued his involvement since separation, albeit in circumstances where the contact seems to take place over school holiday periods and where the husband chooses not to visit the children in Tasmania in between those school holiday periods. The relationship between the children and the husband is marred by what the family reporter correctly describes as [Family report 23 August 2004 page 39]:

   “While [the husband’s] sense of overwhelming loss is understandable, his judgments around retaining the children in Easter 2003, his struggle at times to emotionally contain himself and the inappropriateness of some of his statements to [J] raise doubts as to his ability to always be child focused. While he has a strong commitment to the children he does not always appear to recognise or realise their emotional pain and the part he may play in exacerbating the children’s stress”.

   155.The children have loving relationships with the husband’s parents and siblings and extended family.

   156.If the father’s proposal is successful, that is that the children reside with him in Sydney and visit the wife, [D] and the wife’s family in Tasmania there is likely to be a significant deterioration of the relationship between the children and the wife, the children and [D] and the children and the wife’s broader families.

   157.The husband submits, quite correctly, that the status quo does not create a legal onus.  And also correctly submits that there is not a legal onus on a party to show the change in the status quo will be a positive advantage to the child.

   158.The husband submitted that as the father was never seen by Dr Sale with [L], he was thus deprived of that valuable observation.  I do not find that that significantly impacts upon Dr Sale’s methodology nor findings.  I did have the advantage of the family report where the interactions between the parties and the children were the subject of observation and evidence.

   159.One of the issues to which the parties asked me to address was the alleged instability of the wife’s family relationship.  I find that the household in which the wife resides with the children and [GM] is a stable family relationship.

   S168F(2)(c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)    either of his or her parents; or

   (ii)any other child, or other person, with whom he or she has been living;

   160.The proposals of the wife are that the children continue to live with her in Launceston.  This is in circumstances where the children are managing well and thriving and remain in the care of the wife who has been their principal carer since birth.  It is the mother’s view that

   “I cannot see how [L] and [J] could be successfully separated from me, [GM] (their sister [D]) and their two step sister ([A] and [T]) (the children of [GM] by a previous relationship) and their extended families.  I believe the emotional, physical and psychological ramifications would be devastating”.

   161.[J] has settled into school both academically and with social interaction as has [L].

   The proposal by the husband is to move the children to Sydney to live with him.  In that regard Dr Sale observes [Single expert report 31 January 2005 page 16]:

   “Summing up, while the mother may have experienced non-specific symptoms from time to time, and may have grown up in a family that had its problems, there was nothing in the information available that suggests that any such problems were of a degree that would outweigh the distress caused to the children by reversal of the current residential arrangements”.

   In the family report Mr Cunningham observed [Mr Cunningham report page 41]:

   “of [J’s] feelings of powerlessness are exemplified by what could be only described as his own developmental analysis.  The following comments are said in relation to wanting to be able to tell his father to stop saying “bad stuff”.  “It is easier when you are younger because you can say what you like because you don’t know any better.  It is hard when you are in the middle like me because you don’t want to feel bad or get growled at.  I think it would also be easier when you get older and you are strong enough to say what you want, but I don’t know when that will be”, the two bear cards include an annexure illustrating [J’s] feeling cards (card 1)  but at the time of the initial interview, contrast with [J’s] feelings (card 2) with “butterflies” when thinking about seeing his dad or being in his dad’s care I find that the effect of the father’s proposed changes would be a significant detrimental effect on the children in being separated from their mother, as being their historic primary care giver, [GM], his children and of course [D].

   162.The husband’s submissions related to the allegations that the wife took the children to Tasmania without the husband’s consent.  My finding is that the husband consented to the wife removing the children to Tasmania in December 2002 with the knowledge that the wife was proposing to reside there for at least the immediate future with the children.  The husband, at that time, continued to hope that the relationship would be restored but was well aware of the wife’s intention to reside in Tasmania with the children.  The husband had legal advice at about that time.  The husband was mislead in terms of the relationship between the wife and [GM], particularly in the early months and he was clearly upset by the relationship. 

   163.The husband complained that the wife took [J] to the psychologist, Mr Visiou, in the face of the husband’s express wish to be informed of such reference when he was not informed.  The wife did this out of concern for [J].  …

   164.The husband’s submissions are that the wife has never addressed the effect of the removal of the children from Sydney in December 2002.  With respect to that submission, it is my view that my task is to consider the likely effect of any change in respect of the children’s present circumstances.  I am to analyse those circumstances and then consider what would be the effect of the changes, proposed by the husband, and to consider each of the proposals in terms of the effects on the children in regard to the separation from their parents, or any other child or person with whom he or she has been living.  I find that there would be a significant detrimental effect upon the children if the change proposed by the husband was put into place.  This effect would impact on the children in terms of their relationships with [D], the wife, [GM] and their broader families.

   165.I refer to the findings that I have made and I find that the conduct of the husband, particularly the denigration of the wife and her partner to the children in terms of my consideration of this aspect of s 168F(2)(c).  As I have said earlier, I find that the wife has been the primary care giver of the children since birth and particularly since at least December 2002.  There would be a significant diminution and limitation of the ongoing relationship between the children, the wife and [D] if the children were moved to Sydney.

   S 168F(2)(d) the practical difficulty and expense of children having contact with a parent and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis;

   166.There are two proposals before me, both of which will involve the children being separated from one parent or another.  The husband has had the financial capacity to visit the children in Tasmania on more occasions but has chosen not to do so. 

   167.The wife has been reluctant to assist in the cost of transport of the children from Launceston to Sydney. I find this is understandable bearing in mind the events of April/May 2003, when the children were retained by the husband and the wife’s concern about the husband’s reaction to the marriage breakdown and her fears arising therefrom.

   168.I find that if the children are returned to Sydney that the wife would have difficulties in retaining contact with the children.  This in the circumstances of the husband’s behaviour in May 2003 when the wife was to collect the children from the home in [New South Wales] and the husband’s consistent and continued denigration of the wife, her partner and her family.

   169.I find that the wife will promote contact between the children and the husband.

   S 168F(2)(e) the capacity of each parent, or of any other person, to provide for the needs of the children, including emotional and intellectual needs;

   170.Both parties are able to provide for the physical and intellectual needs of the children. 

   171.The wife’s mental state was raised by the husband in terms of the journal and material that she had written in that journal.  I refer to the evidence and findings set out in these reasons.  I am satisfied that the wife’s mental state is such that she is able to well care for the children and meet the needs of the children.  She has demonstrated this with regard to the children through the whole of their lives.  She continues to do so.  The wife is interested in the children’s schooling and is actively involved at the school.  When she discovered the extent of the attacks upon herself and [GM] in the telephone conversations between the husband and the children the wife took steps to bring that behaviour to an end and did so by way of the order made by Justice Hannon on in 2004.  Yet she recognised that from time to time [J] would need to call his father and facilitated those calls when [J] expressed wishes in that regard.  I refer to my earlier findings about the emotional stability of the wife.

   172.In terms of the husband, he has the capacity to provide for the needs of the children physically, but there is an issue as to his ability to meet their emotional and intellectual needs.  He has been, to date, unable to put aside his distress of the breakdown of the marriage and his determination that the children shall understand his point of view.  This is reflected in the evidence given by [DJ] and the evidence given by the husband’s mother and sisters which have been referred to in the findings above.  I find that the mother’s capacity to provide for the needs of the children (including emotional and intellectual needs) is superior to that of the husband.

   S 168F(2)(f) the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the Court thinks are relevant;

   173.There seem to be a number of issues arising in this area.  Firstly it is agreed that [J] is intellectually advanced.  The husband’s argument is that he is better able to meet these particular needs of [J], I do not find that to be the case on the facts before me.

   174.I accept the submission of the wife that the children are aware of their Jewish ancestry.  There is only occasional observation of Jewish festivals and the husband is not a person to attend Synagogue except on ceremonial occasions.  The children, according to the husband, are not considered Jewish and they do not have a Jewish mother.  It is common ground between the parties that the children are not to attend a Jewish school.  I accept the wife’s submission and evidence in that regard.    

   S168F(2)(g) the need to protect the children from physical or psychological harm caused, or that may be caused, by:

   (i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

   (ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

   175.In this area there is the question of the father’s denigration of the mother and her family.  This is set out in the affidavit material and I refer to the findings made by me set out above.  I find that the husband has consistently and persistently denigrated the wife from the time he discovered her relationship with [GM], in about February or March 2003 and that denigration has continued at least well into 2005 and I infer that it continues and is likely to continue into the future.

   176.I find that the husband has no insight into the damage that this behaviour causes to the children.  This behaviour has had a significant effect on both the children, particularly [J].  This is set out in the reports of Dr Sale and Mr Cunningham which I have referred to above. …

   …

   178.The risk of abuse from the husband, at this stage, is not sufficient to warrant termination of contact.  That approach is not submitted on behalf of the wife nor is it submitted by the child representative. 

   179.It is, however, a worrying aspect of this case. The wife will need to remain on guard to manage the damage being caused to these children, by the husband’s behaviour, in this regard.

   180.The husband asserts that there is a risk the children may be exposed to persons who have engaged in sexual activities which are inappropriate.  Those persons being the maternal uncles, [JA] and [FA]. 

   [The findings then made by his Honour concerning FA and JA have been earlier set out.]

   …

   187.The husband also expresses concern about the children’s risk of abuse from the wife’s father, [BA].  This arises out of allegations of alcohol abuse, violence to the wife’s mother and allegedly pulling [J’s] pants down, which are set out above.  In respect of the “trousers incident” I refer to the findings made above.  [BA] may have used alcohol excessively in the past and there may have been issues of violence between he and his wife many years ago.  On the evidence before me, I am satisfied that he does not pose any risk of abuse to the children or either of them.  I find that he is a positive influence in their lives for the reasons set out above.

   S 168 F(2) (h) the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   188.I accept the submission of the husband that the Court must not only consider the parents’ capacity at the present but into the future.  I do not accept the husband’s submission that the wife is a recalcitrant.  I find that the wife has needed to deal with a high level of conflict following the breakdown of the marriage to the husband.  I reiterate the findings set out above and find that the wife has a strong and positive attitude to parenting the children and that has been demonstrated, albeit not perfectly from time to time, in terms of her behaviour since separation.

   189.I am not satisfied with the husband’s attitude to the children and the responsibility of parenthood. I repeat the findings and comments made above in terms of the husband’s behaviour, with regard to the children and I repeat the comments set out under Section 68F(2) above. In particular, I refer to the husband’s conduct when the wife collected the children from him in Sydney, on 11 May 2003, and the husband’s continuing approach with regard to demeaning the wife and her partner. I repeat my findings, particularly those in respect of Mr Cunningham’s evidence, in relation to the husband’s struggle to contain himself and the inappropriateness of some of his statements to [J].

   190.In many ways the husband demonstrates good approaches to parenthood but has allowed the break-up of the marriage to permeate his relationship with the children.

   191.I find that the mother has generally approached her responsibility to parenthood in a sensible way through seeking help from Sally Leeson in how to deal with the husband’s denigration of her in the presence of the children, parenting techniques and [J’s] disciplinary problem at school.   Whilst the wife can be criticised for not informing the husband of her attendance at … Child and Adolescent Centre, it was done for sound reasons and in trying to meet the interest of [J].

   192.In his submissions the husband complains that he is the last name on the … Primary School personal information sheet.  The evidence was this information sheet was provided if problems occur in Launceston.  The husband lives in Sydney.  It may well be that it can be changed but if problems arise and the child/children needed to be collected or the school needed someone to attend school urgently, the approach by the wife was understandable.  Concerns of the husband can be easily addressed in that regard, bearing in mind the evidence of the Headmaster of the school.

1. Having regard to these findings by his Honour, we consider that his decision in relation to the future living arrangements for the children was correct, and thus as we have earlier said the appeal against the parenting orders must be dismissed.

2. We turn now to the appeal against the property settlement orders.

The appeal against the property settlement orders

(i) The trial Judge’s reasons for the orders with respect to property settlement

1. In relation to the parties’ property his Honour concluded that it had a net value (excluding superannuation) of $709,267.25 (at paragraph 206).

2. He then determined (at paragraph 266) that on the basis of their contributions to that property, and to the welfare of their family, being contributions made both pre- and post separation, their property should be divided 53% to the husband and 47% to the wife. His Honour reached this determination after a relatively lengthy analysis of the evidence concerning the parties’ contributions (paragraphs 240-261), at the conclusion of which he provided the following summary of his reasons for assessing the parties’ contributions in the proportions of 53% and 47% in favour of the husband:

   262.The initial contributions by the husband in respect of both categories of property were greater than that of the wife.  However, during the course of the relationship from about September 1996 onwards I find that the contributions were equal.  The husband continued with his practice as a psychiatrist and in terms of his work at the [NSW] property.   The wife undertook some paid employment but applied herself equally to the role of parent and homemaker.   The husband made no contributions to superannuation post separation.

   263.The husband submits that his direct financial contributions by way of his income overwhelm that of the wife.  I refer to the findings made above and I accept that the husband’s direct financial contributions were greater than that of the wife.

   264.I accept that the husband was principally concerned with the finances of the family including arranging finance, paying bills etc.

   265.However, as I have set out above, I find that the wife was the principal carer of the children and played the significant role as home-maker and parent.  The husband worked significant hours and, on the evidence set out in relation to the children’s matters, involved himself in upgrading his professional qualifications.

   266.I do not intend to repeat all of the lengthy facts that have been asserted during the course of this hearing however I conclude that, bearing in mind the medium duration of the marriage and the significant contribution made by the husband at the commencement, that his contributions under Section 79(4)(a)(b)&(c) should be assessed as favouring the husband as to 53% to the husband and 47% to the wife, in respect of both categories of property.

3. Following his assessment of the parties’ contributions, his Honour considered the benefits received by the wife from her family. As this was a matter raised on the appeal (although ultimately not pursued) it is necessary to record his Honour’s findings:

   267.It was submitted to me that the wife has a financial resource available in the terms of the Trusts controlled by her father.  On the evidence before me I find that those Trusts were created by the wife’s father, [BA] many years ago and contain assets which were wholly contributed by the wife’s parents over the years of their relationship.  There is no evidence of any contribution by the wife to the creation of the assets contained in these trusts.

   268.I find that the trusts are controlled by [BA] and that he treats the assets within the trusts as his own property.  He is careful when advancing money to his children as can be seen with the trust he set up to provide a restaurant for his son [JA].  When the wife want to buy a car her father lent her the money for that purpose.

   269.At the times the wife needed accommodation [BA] has, at least on two occasions, assisted her.  The first occasion was when the wife was provided with accommodation in [New South Wales] rent free.  The second occasion was when the wife was provided her present accommodation.  [BA] did not know whether that [Tasmanian] property was his or owned by his trust, it seemed to make little difference to him.  I find that that property is owned by one of his trusts.

   270.The wife’s parents have been generous to the wife and to her siblings during the course of their lives, one of the Trusts was set up to provide a restaurant for the wife’s brother [JA].

   271.I find that [BA] is the controller of the Trusts.  His children are discretionary beneficiaries in respect of those trusts but I find they have no effective power to direct payment of any income or take any capital.  The trusts are creatures of [BA] and his wife.

   272.Some of the financial records of the various trusts were put into evidence.  These show no distributions of income or capital to the wife and do not disclose any other payments to her.   The [BA] Family Trust was set up on 1976 and the appointor of the trustee under that trust is [BA]. The [C] Trust was set up in 1979 and the appointor of the trustee under that trust is [BA].  The [C] discretionary trust was set up in about 1988 to provide the premises for the [RFI] for [JA] to conduct his business.  The flow chart of the corporate and trust structures of [BA] was put into evidence by the husband.

   273.The only benefit that the wife receives from the trusts is the occupation of the home in which she now resides.  The property next door draws $160.00 a week rent so therefore she is receiving a benefit of about $60.00 per week.  She also has access to the shacks [in Tasmania].

   274.The $25,000.00 provided by [BA] to the daughter in 1997 was initially treated as a loan, on the evidence of the husband, and later forgiven.  The daughter sought funds to purchase a car and the sum of $21,100.00 was lent to her by her father and I accept his evidence that this loan will need to be repaid. The trusts are neither property nor a financial resource for the wife under any of the other factors under s.79. 

   275.There is nothing in the preamble to the trust deeds that would indicate that the deed has been entered into for the purpose of benefiting the wife. They are standard discretionary trusts which permit the trustees to distribute capital and income to a wide range of beneficiaries of which wife is but one.

   276.These trusts are controlled by [BA] and his wife and not by the wife in these proceedings.  I find that the trusts can be categorised as a mere expectancy and should not be taken into account in these property proceedings.

   277.Counsel for the husband asks that I treat the wife’s inclusion as a discretionary beneficiary under the trusts created by her father as either property or as a financial resource.  I reject that submission for the reasons set out above.  The Counsel for the husband asks that I treat the wife as not having made full and frank disclosure as she did not include her discretionary entitlements in those trusts.  I reject that submission for the reasons set out above.

4. His Honour then turned to the factors referred to in s 79(4) other than contributions, ultimately concluding that the wife should receive a further 13% in her favour on account of those factors. His Honour’s reasons for this adjustment were as follows:

   278.The parties are of a relatively similar age both being in their early to mid 40’s and both have the same number of years of working life ahead before retirement age. 

   279.The parties are in relatively good health as are the children. The children are young and will need the ongoing full time care of the wife for the medium term future.  The bulk of that task is left to the wife.  The two children are at early to middle primary years and as such there are many years of parenting ahead of her.

   280.I find that there is a significant disparity in the incomes of the parties. The wife is unlikely to earn anywhere near the income of the husband in the foreseeable future.  The husband is likely to continue to earn income at a higher level than the wife for the remainder of his working life.

   281.The husband submits that any adjustment pursuant to Section 75(2) may alter depending on the outcome of the parenting proceedings. He is correct in that submission. I do not accept his submission that the adjustment I ought to be limited to is 5%. The husband asserts that the mother derives income [from work] in [Tasmania] and the mother’s de facto partner derives income from employment with [a mining company]. I find that the mother’s income is of a very small nature and that [GM’s] income with [the mining company] is again of a modest level.

   282.I am required to take into account any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage (79(4)(g)) and I do take the payment of child support by the husband into account.

   283.Neither party receives any pension, superannuation or other benefits. The father has no current superannuation entitlements and seeks a splitting order in respect of his interest in the Asset Link Superannuation Fund.  I propose to accept the husband’s submissions in that regard and make a split in relation to the superannuation.

   284.Overall, it is my assessment that the wife should receive a further 13% in her favour for the other factors.  This should apply to both categories of property.

   285.I now consider the effect of these findings and determination to resolve what order is just and equitable in all of the circumstances of the case.  The overall conclusion I come to is that the parties are entitled to a division of property in proportions of 60% to the wife and 40% to the husband.  I have considered these factors in respect of both categories of property.  That division should apply to both the non-superannuation property and to the superannuation property.

5. His Honour then explained (in paragraphs 286 to 288) how the 60% - 40% overall distribution in favour of the wife should be achieved, and he then proceeded to make the orders which include the orders which are subject of this appeal and which we set out at the commencement of this judgment.

6. Before considering the grounds of appeal directed to the property settlement orders, it is relevant to note that before he commenced his consideration of the parties’ contributions, his Honour made the following observation:

   236. Counsel for the husband submitted that I ought to prefer the evidence of the husband to the wife.  The wife was cross-examined for over two days.  In that cross-examination (largely dealing with childrens’ issues) she conceded appropriately when she made an error and I found her to be a witness of honesty.  I believe she took care to present her evidence accurately.   The husband, on the other hand, seems still engrossed in these proceedings, he is convinced by the merits of his own cause.  In the result where there is a conflict or dispute about the facts on property, I generally prefer the wife’s evidence unless the contrary is corroborated or supported by other evidence. 

(ii) Grounds of appeal against the property orders

1. Notwithstanding the contents of the husband’s written summary of argument, the only grounds of appeal or part grounds which were pressed before us were the following:

   Ground 15 – Contribution Based Entitlements

   … His Honour erred in the determination of the parties contributions under paragraphs (a), (b) and (c) of s 79(4) of the Act, in that he;

   i.determined that the appellant father’s contribution based entitlement should be assessed at an amount equal to 53%;

   ii.and having so found that the appellant father’s contribution based entitlement should equate to 53% (and the respondent mother’s to 47%) his Honour erred in making a further adjustment in favour of the respondent mother of 13% pursuant to s75(2) and by reason of that adjustment, his discretion manifestly miscarried;

   iii.determined the respondent mother’s overall entitlement to be 60%;

   iv.failed to give any proper weight to the appellant father’s contributions at the date the commencement of cohabitation;

   v.failed to give any proper weight to the appellant father’s direct and indirect contributions during the course of cohabitation relative to those of the respondent mother including but not limited to his substantially greater income and the long service and other lump employment benefits accumulated by and received by the appellant father in a lump sum during the latter part of the marriage;

   vi.failed to give any proper weight to the appellant father’s contribution as homemaker and other non-financial contribution;

   vii.failed to give any proper consideration to s 79(4)(g) and consequentially to any child support provided by the appellant father or in respect of child support he is to provide, or might be liable to provide in the future for the children.

   Ground 16 – Section 75(2) Factors and Adjustment

   … His Honour erred in the assessment of the s 75(2) factors:

   i.in finding that the duration of the cohabitation was one of medium duration;

   ii.in the exercise of his obligations pursuant to s 75(2) made an order which was on its face not just and equitable having regard to the facts of the case including but not limited to the material non-disclosure of the respondent mother and her available financial resources including but not limited to the respondent mother’s financial resource available to her as a discretionary beneficiary in trusts;

   iii.in failing to give consideration to the costs of contact that would be incurred by the non-resident parent.

   Ground 17 – Material Non-disclosure

   His Honour erred in failing to give any or any proper weight to material non-disclosure of the respondent mother.

   Ground 18 – Plainly Unjust [Relevant to Whole Appeal]

   His Honour erred in exercising the discretion in that, although not discoverable from his Reasons for Judgment, the culmulative [sic] effect has produced a result that is unreasonable and plainly unjust.

2. In endeavouring to argue Ground 15 in so far as it challenged the 6% weighting in favour of the husband on account of his financial contributions, Senior Counsel appropriately conceded that while that figure might have been “at the lower end”, it was not “beyond the bounds” of a proper exercise of the discretion. Thus the challenge to the property settlement division ultimately focussed on Ground 16 and the adjustment made on account of the matters contained in s 75(2) of the Act.

3. Again in relation to Ground 16 and the s 75(2) adjustment Senior Counsel for the husband sensibly acknowledged that he could not argue appealable error in his Honour’s use (in paragraph 266 of his reasons) of the expression “the medium duration of the marriage”, unusual though it might have been.

4. Similarly Senior Counsel informed us that he was “compelled to concede” that it was open to the trial Judge to exclude from consideration as property or a financial resource the wife’s inclusion as a discretionary beneficiary under the trusts created by her father and also the circumstances in which that interest was disclosed “late in the day”.

5. Accordingly Senior Counsel ultimately acknowledged that the s 75(2) challenge was covered by Ground 18, with the submission being that the 13% adjustment in the wife’s favour or 26% differential between the parties was outside the ambit of a reasonable exercise of the discretion.

6. Senior Counsel submitted that this was so because notwithstanding the husband’s greatly superior salary, his Honour had failed to refer to the fact that the wife had the benefit in her household of the salary of her new partner, GM, and also that the wife’s own capacity to earn income was limited because of the birth of her new child, D, who was not, of course, a child of the husband.

7. However we are not persuaded that his Honour was in error in failing to refer to these two matters for the reasons that GM’s income was only in the order of $50,000 per year, and there was no evidence that the wife could have earned more had she not had to care for D. Furthermore, it appears that no argument was put to the trial Judge concerning the wife’s reduced earning capacity because of her responsibility for D.

8. A further submission made on behalf of the husband concerned the high level of child support which he was paying given that his income was in excess of $100,000, and also that the costs of contact were high given the geographical distance between the parties’ residences. As we pointed out during the hearing of the appeal, the high cost of contact is now a matter which can be addressed through the child support scheme – although it would seem from which we were told towards the conclusion of the appeal, that it may have already been so addressed.

Conclusion in relation to the property settlement orders

1. Although we acknowledge that his Honour’s award might be said to be generous to the wife, we have not been persuaded that it was beyond the range of a proper exercise of the discretion.

2. Thus, the appeal against the property settlement orders must also be dismissed.

Costs issues

1. The final ground of appeal contained the husband’s amended notice of appeal, being Ground 19, was directed to the indemnity costs order made against the husband in respect of one particular day. However before us, that ground was also abandoned.

2. As to the costs of this appeal, which is to be dismissed, we are of the view having regard to the submission made at the conclusion of the hearing of the appeal, that the husband should pay the costs of the wife and of the Independent Children’s Lawyer. However we reject the submission put on behalf of the wife, that such costs should be on an indemnity basis, rather they should, in our view, be on the usual party/ party basis.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  9 November 2007