LANGLEY & BRAMBLE
[2010] FamCAFC 34
•1 March 2010
FAMILY COURT OF AUSTRALIA
| LANGLEY & BRAMBLE | [2010] FamCAFC 34 |
| FAMILY LAW– PARENTING PROCEEDINGS – MOTHER’S APPEAL AGAINST ORDERS CHILD LIVE WITH FATHER – APPEAL FROM FAMILY COURT – DISCRETION – APPLICATION OF LAW – Not established that the trial Judge erred in his findings with respect to the credit of mother – Not established that the trial Judge palpably misused his advantage by relying on the evidence of the father – Not established that his Honour erred in failing to make a finding as to the significance of the lack of statement or affidavit from the father’s mother who was deceased at the date of hearing, but had an opportunity to swear an affidavit in the interim proceedings about the date of separation – Not established that trial Judge’s exercise of discretion miscarried by failure to take relevant matters into account, by having regard to irrelevant matters, or by affording undue or insufficient weight to any relevant matters – Court of the opinion that the mother’s appeal unmeritorious – Appeal dismissed – Costs ordered against mother. |
| Family Law Act 1975 (Cth) Part VII, s 60CC |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 Mims v Green and Green (2008) FLC 93-359 |
| APPELLANT: | Ms Langley |
| RESPONDENT: | Mr Bramble |
| FILE NUMBER: | PAF | 370 | of | 2006 |
| APPEAL NUMBER: | EA | 80 | of | 2008 |
| DATE DELIVERED: | 1 March 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, O'Ryan & Strickland JJ |
| HEARING DATE: | 4 September 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 437 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | David Maddox |
| SOLICITOR FOR THE APPELLANT: | Dooley & Associates Solicitors |
| COUNSEL FOR THE RESPONDENT: | Marcus Juhasz |
| SOLICITOR FOR THE RESPONDENT: | Claire Legal Solicitors |
Orders
That the appeal be dismissed.
That the mother pay the husband’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Langley & Bramble is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2008
File Number: PAF 370 of 2006
| Ms Langley |
Appellant
And
| Mr Bramble |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 2 March 2009 Ms Langley (“the mother”) appealed against orders made by Watts J on 16 June 2008 in parenting proceedings between the mother and Mr Bramble (“the father”).
The trial Judge’s orders provided that the one child of the parties, A, who was born in March 2005, live with the father. At the time of trial the child was living with the mother.
The trial Judge ordered the gradual implementation of the change of the child’s residence to the father. His Honour’s orders further provided that, once the child was living with the father, the mother spend time with the child on alternative weekends, for 8 consecutive days every 3 months until the child commenced school and thereafter for half the school holidays and on special occasions.
The trial Judge ordered that the father have sole parental responsibility for the child and further ordered that the child’s surname be changed to “Langley-Bramble”.
In lieu of the trial Judge’s orders, the mother sought that the parties have equal shared parental responsibility for the child, that the child live with the father each weekend from Friday afternoon to Sunday afternoon and for a period on Wednesday afternoons, but otherwise live with the mother, provided that, once the child commenced to attend school, she live with the father for half of the school holiday periods.
During the course of the hearing of the appeal in this Court, Counsel for the mother, sensibly in our view, conceded that, if the mother’s appeal was successful, a re-hearing before a single judge would be unavoidable.
The father resisted the mother’s appeal and sought to maintain the trial Judge’s orders.
Material Facts
The parties’ commenced cohabitation in November 2000, married in April 2002 and separated on 30 November 2005.
At the time of trial, the father was aged 40 years and the mother was aged 39 years.
The father had three children from a previous marriage. As noted earlier, there was one child of the parties, A, who was aged 3 years at the date of the trial Judge’s orders.
In November 2006 the father commenced to live in a de facto relationship with Ms M. The mother had not re-partnered at the time of trial.
The trial Judge’s Reasons for Judgment
In the light of the number and variety of grounds of appeal agitated on behalf of the mother, a reasonably detailed account of the trial Judge’s reasons is potentially instructive.
Having identified the competing proposals of the parties, and the orders sought by each of them reflecting those proposals, the trial Judge recorded a number of material facts.
The issue of credit, which assumed considerable significance at trial, was then discussed by the trial Judge. His Honour recorded in that context his conclusion that he could not “assume the wife is a reliable witness”.
For the reasons which he detailed, the trial Judge concluded that where the father’s evidence differed from that of the mother and her father, unless otherwise indicated in his Reasons, the evidence of the father was to be preferred.
Under the heading “Domestic Violence before 30 November 2005” the trial Judge considered the evidence before him with respect to that topic, which included allegations by the mother of violence by the father towards his former wife, and to his son of a prior marriage. For reasons which he detailed, the trial Judge did not make findings adverse to the father with respect to violence, either in relation to the father’s former wife, or his child, C.
Also, for reasons which he articulated, the trial Judge did not accept that the father had been violent to the mother prior to 30 November 2005.
The events of 30 November 2005, the date upon which the parties’ separated, and which assumed considerable significance at trial, were then closely considered by the trial Judge.
His Honour recorded the allegations of each of the mother, her father and the husband, the cross-examination of each of them, and the evidence of their representations to other witnesses.
The trial Judge considered the topic of “Lack of evidence from the husband’s mother”. For reasons which he detailed, his Honour drew no inferences adverse to the father from the failure to obtain a statement from his mother prior to her death.
Under the heading “The medical examination on 30 November 2005”, the trial Judge considered the evidence relied upon by the mother in support of her allegations that she had been injured at the hands of the father on 30 November 2005.
His Honour recorded his acceptance of the unchallenged evidence of Dr H who saw the wife on 30 November 2005, and recorded having then observed “bruising” and “localised tenderness”.
The trial Judge recorded a number of “important comments” with respect to the report of Dr H, they were:
107.1.In the doctor’s recording of the report that the wife made to him at that date, there is no history given to the doctor that the wife received five to six punches in her head (the wife in oral evidence indicated that they were all to the top of her head except for one to the left side of her face).
107.2.The doctor did not record any tenderness or bruising to the wife’s scalp.
107.3.There is no bruising or tenderness to the wife’s buttocks.
107.4.It appears that the grip marks on part of the wife’s arm are not something that the doctor observed at the time of the examination but it seems were something that the wife reported to him later.
107.5.There is no obvious injury to the left side of the wife’s face that would be consistent with her being hit with force with a bunch of keys.
107.6.There is no recording of any obvious sign of physical injury to A, notwithstanding the wife’s evidence in respect of A’s head hitting the architrave and the keys falling onto A’s head.
Having recorded differences between the photographic evidence before him, and the report of Dr H, the trial Judge recorded his conclusions about the incident on 30 November 2005. The evidence of neither the mother nor the father was considered to provide a “satisfactory explanation as to what happened at the former matrimonial home on 30 November 2005”. A number of reasons why that was so were advanced.
His Honour further recorded that: “Whilst the wife has given a more coherent and consistent version of what happened, her version is inconsistent with the medical evidence”. His Honour concluded that the consistency in her version is in some way a product of the fact that “she has constantly rehearsed her version of the events of 30 November 2005, initially re-enacting them and photographing that re-enactment for the purpose of preparing for the court case in 2006 and then during extensive therapy, rehearsing those matters in her mind on multiple occasions”. Reference was then made to representations attributed by Dr O to the mother with respect to the events of 30 November 2005.
His Honour recorded that the father’s version of events of 30 November 2005 omitted “significant details of previous evidence that he has given”. He further recorded that:
116.The husband’s version as to what happened in the hallway however does not properly explain how the wife sustained injuries to the left side of her face and her neck. I find the most likely cause of those injuries is the wife’s head coming into contact with the architrave in the hallway as a result of the husband attempting to remove the baby from the wife in the hallway or as a result of the husband pushing the laundry door against the wife’s shoulder in the hallway.
For reasons which he detailed, the evidence of Mr S that he saw the husband “kick the wife” was not accepted by the trial Judge.
Reference was then made to the “re-enactment” by the wife of her version of events of 30 November 2005 for the purposes of assault and AVO proceedings in the Local Court.
Having examined the evidence to which he had thus referred, for reasons which he detailed, the trial Judge did not accept the mother’s evidence that she had been kicked by the father on 30 November 2005.
Ultimately, the trial Judge concluded that, whilst the father had not “fully accounted for the part of the incident which would explain the minor injuries to the wife observed by Dr [H]”, the wife had “significantly overdramatised the events of 30 November 2005”, her injuries being “consistent with the thrust” of the father’s “overall evidence”. His Honour further concluded that “having regard to Dr [A’s] evidence that this over-dramatisation is connected to the wife’s mental status” which his Honour later considered.
Under the heading “Contact centre/marks on [A]” the trial Judge considered the wife’s allegations that the child had returned from time spent with the husband at a contact centre with “marks on her face”, and the evidence in support of such allegations. His Honour was unable to conclude how the child sustained such marks but accepted the husband’s denial of any impropriety.
The “Sexual Abuse Allegations” made by the wife of the mother were then considered. The trial Judge identified the mother’s allegations as they were articulated in her affidavit evidence. The allegations commenced with an alleged disclosure by the child on 2 March 2008, following a period of time the child had spent with the father at the contact centre the previous day. The disclosure was that she had witnessed the father and Ms M having sexual intercourse, and that the father had touched the child’s vaginal area. The mother deposed to taking the child to the Child Protection Unit at Westmead Hospital the following day.
The trial Judge then referred to the report of Dr O in which the mother outlined the matters deposed to in her May 2008 affidavit in substantially the same terms as her affidavit revealed. Dr O recorded the mother as having alleged that the disclosure was made on 1 May 2007 however.
The trial Judge observed that the mother’s lawyers had not written to the father’s lawyers until 1 April 2008, and that there was no explanation for the delay of one month in doing so.
The trial Judge referred to the difference between the allegation the mother made with respect to the father touching the child in her affidavit, and her representations to Dr O. His Honour recorded that:
138.So, the wife in her interview with Dr [O] on 2 May 2008, seeks to give the impression that [A] volunteered that she had been touched on her vagina. The wife’s affidavit of 13 May 2008 records however what she put in the letter that her lawyer wrote on 1 April 2008, namely that it was the wife who said to [A] “Did somebody touch your strawberry”. I find, if either of the versions given by the wife are in fact accurate, the version originally given by the wife in early April 2008 is likely to be the more accurate, and if it is accurate, then the wife has asked [A] an important leading question.
For reasons which he detailed, the trial Judge concluded that the mother’s allegation that the child had, on “multiple occasions”, witnessed her father and Ms M “being involved in sexual activity” was “inherently unbelievable, particularly having seen and heard Ms [M] give evidence”.
Reference was then made to the discrepancy between the date upon which the mother alleged in her affidavit that the child had made her disclosures (2 March 2008), and the date Dr O reported the mother as having told her in that context (May 2007).
For reasons which he detailed, the trial Judge rejected the mother’s explanation that her suggestion to Dr O that the disclosure had been in May 2007, rather than March 2008, was an honest mistake. His Honour concluded that the discrepancy with respect to the dates cast “considerable doubt over the veracity of the evidence that the wife gives about [A] making disclosures of sexual abuse involving her father”, adding that the mother was “the only witness to those disclosures”, and that there was “no other evidence that would corroborate them”.
His Honour thus concluded:
147.I am comfortably satisfied that there is no unacceptable risk that the husband has sexually abused [A], or exposed [A] to adult sexual activities. Whilst it is possible that the wife has led [A] to say certain things to her, I find on balance it is more likely that the wife has fabricated the sexual abuse allegations.
The trial Judge then referred to the expert medical evidence with respect to the mother’s “mental status”, recording that the mother’s presentation to Dr A, who she saw on 31 August 2007 and Dr O, who she saw on 2 May 2008, was “very different”. Extensive references were then made to the evidence of Dr O, a consultant psychiatrist whose expertise was not challenged.
His Honour recorded:
160.As I have said, Dr [O] does not absolutely discount a possible diagnosis of Delusional Disorder (an Axis I disorder). At page 17 of her report she says that the fact that a diagnosis of Delusional Disorder could not be made at the interview, would not be unusual. She says it is entirely possible that a person with “well systemised” delusional ideas may not appear to be mentally ill. Dr [O] explained that “well systemised” refers to ideas that are presented with an internal logic consistent such that if the basic premises are accepted then they appear to be reasonable. This is a common feature of a Delusional Disorder. In order to make such a diagnosis, however, the doctor says there needs to be independent evidence that the person’s belief system actually has no basis in reality.
His Honour concluded:
161.If I had to make a judgment based on Dr [O’s] evidence alone, I would conclude that the wife has a personality disorder.
The trial Judge then referred extensively to the evidence of Dr A, a psychiatrist whose expertise also was not challenged. His Honour was satisfied that Dr A’s conclusion that the mother’s “thoughts had derailed was not impugned”. He concluded that:-
166.Overall, I am prepared to accept Dr [A’s] evidence and conclusion that at various points during his interview with the wife on 31 August 2007 that her thoughts did derail on occasions.
The conclusion ultimately reached by his Honour with respect to the mother’s mental status was:
178.I am unable to say with any certainty whether or not the wife has a delusional disorder or a personality disturbance. In my view that diagnosis has not been definitively made by either doctor and I accept Dr [A’s] opinion that to make that diagnosis, a course of consultations would probably need to be undertaken by the wife in a non forensic setting. On either of the possible diagnoses however, there is an unacceptable risk that the wife’s mental status will, in the future, pose a significant threat to [A] being able to establish a meaningful relationship with her father.
179.Dr [O] says that if Ms [Langley’s] problems are personality based then they would be resistant to therapeutic intervention and that medication would not be indicated.
His Honour accepted the evidence of Dr A that the father did not have a psychiatric illness.
Against that review of the evidence, the trial Judge proceeded to address the principles relevant to the determination of parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Turning his attention initially to the primary considerations referred to in
s 60CC of the Act, the trial Judge concluded that, in the light of his findings with respect to the mother’s mental status, there was an unacceptable risk that if A remained living primarily with the mother she would not have the benefit of a meaningful relationship with her father.
The trial Judge reiterated that he did not find there to be any unacceptable risk of sexual abuse of the child were she to primarily live with her father, or that there was any unacceptable risk of an escalation of domestic violence if that were to occur, or that the child would thereby otherwise be exposed to inappropriate behaviour between the father and Ms M.
The “Additional Considerations” referred to in Part VII of the Act were then discussed by the trial Judge.
His Honour recorded his reluctance to make an order which would remove a three year old child from her mother, with whom she has her primary attachment, and placing her with her other parent. His Honour acknowledged that so doing would cause the child some “short term pain” but concluded that the change was the “better of two evils”.
So far as the issue of family violence was concerned, the trial Judge concluded that there had been no systematic violence by the father, and that the evidence did not establish a general tendency of the father to be violent.
The trial Judge acknowledged that the orders he proposed making would not necessarily be those most likely to minimise future proceedings, and that the mother was unlikely to accept that the orders were in the child’s best interests.
The question of parental responsibility was then addressed. His Honour noted that both parties sought sole parental responsibility for the child, and that neither sought equal shared parental responsibility.
His Honour concluded that it was inappropriate to preserve equal shared parental responsibility given the lack of effective communication between the parties and the mother’s mental status.
The trial Judge then considered whether an order should be made that the child reside for an equal time with each parent or spend substantial and significant time with each parent. The distance which the parties lived apart from each other, and the problematic capacity of the parents to communicate were regarded as being not “conducive to a co-parenting arrangement”.
A significant factor in the trial Judge’s reason for rejecting a “co-parenting arrangement” was the fact that such arrangement would place the child for a significant time with a parent (the mother) who believes that the other parent (the father) is likely to “groom [A] for sexual activity” and “expose [A] to sexual activity and violence”. His Honour concluded that the child’s best interests required that “exposure to these thoughts by her mother be limited as much as possible”.
For reasons which he provided, the trial Judge concluded that the child should assume the hyphenated surname of “Langley-Bramble”. We do not understand this to be controversial for present purposes and accordingly need not refer to his Honour’s Reasons for Judgment in relation to that topic. Nor do we understand the transitional arrangements proposed by the trial Judge to be controversial for present purposes.
Relevant legal principles
The principles governing the mother’s appeal are not in doubt and do not require extensive re-statement.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-505:
“…although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (House v The King (1936) 55 CLR 499 at 504-505).
In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, Kirby J said of discretionary and evaluative Judgments at 230 – 231; 85,465:
186. A number of general propositions may be stated:
1.Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. (footnotes omitted).
2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.’
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In Mims v Green and Green (2008) FLC 93-359 the Full Court followed the Judgment of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 in which (at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to SSHontestroom v SS Sagaporack [1927] A.C. 37 at 47 in which Lord Sumner pointed out:
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
His Honour also said at page 178:-
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”), Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (at 619, paragraph 90) his Honour said:-
“The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.”
Grounds of Appeal
The Court has been favoured with comprehensive and cogently articulated submissions supporting and resisting the mother’s appeal. Sensibly, and helpfully, Counsel for the mother agitated the 34 grounds appearing in her Amended Notice of Appeal in groups by reference to the topics traversed by various of the Grounds of Appeal. Counsel for the father responded to the various challenges by reference to such groups. We shall adopt the same approach to our consideration of the Grounds of Appeal.
Findings unfavourable to the mother without adequate evidence
This group of challenges encompasses Grounds 5, 6, 8, 9, 10, 11, 15, 17, 18, 19, 20, 25, 30 and 31. In the interests of clarity, we shall consider each of those grounds sequentially.
Ground 5
Ground 5 of the mother’s Amended Notice of Appeal provided:
5.His Honour erred in finding [52] that the wife’s error in naming the wrong month and year in which [A] was playing with dolls “significantly and adversely affects her credit”.
In support of this complaint, Counsel for the mother submitted:
At Tr 259.40, His Honour remarks that “It is in fact an important matter now it’s been drawn to my attention”, but does not explain why this is important – if so important, it is unexplained why neither counsel nor His Honour questioned Dr [O] about this.
Reliance was placed upon the evidence of the mother that she had made a “simple mistake” in suggesting to Dr O that the child’s disclosures were made in May 2007, when in fact she alleged that they had been made in March 2008. Reliance was placed upon the following evidence of the mother in support of that contention:-
So, we are entitled to draw from that that the date you gave to Dr [O] was a mistake on your part?---Yes, sir.
The trial Judge carefully considered the discrepancy between the two dates the mother asserted with respect to the child’s alleged disclosures. His Honour was clearly conscious of the mother’s evidence that she had erroneously suggested to Dr O that the disclosure was in May 2007. His Honour acknowledged the force of the submission made on behalf of the mother that it was improbable that she would not have complained shortly after 1 May 2007 had the disclosure been made then.
His Honour recorded, correctly in our view, that it was open to him to conclude, as he did, that “had the events described by the wife happened on 2 March 2008, she would not have made an error of the nature that she made when relating the date they happened to Dr [O]”.
Unlike this Court, the trial Judge had the advantage of seeing and hearing the mother give evidence and be cross-examined, which the authorities have consistently recognised raises significant barriers to appellate intervention. Importantly, the trial Judge did not rely solely on the significance, and inherent improbability of the mother having made a mistake with respect to the date upon which the child allegedly made her disclosures.
His Honour, permissibly in our view, also relied when deciding this issue upon the discrepancy to which he referred in the mother’s accounts of the child’s disclosure in relation to the father’s alleged touching of her vaginal area. His Honour, again permissibly in our view, also relied upon the general credit finding which, for reasons which he detailed, he had recorded earlier in his Judgment.
Nothing to which we have been referred on behalf of the mother persuades us that the trial Judge’s finding with respect to the mother’s evidence in relation to the date of the child’s alleged disclosure, or the inferences he drew from it, could properly enliven appellate intervention. It is to be remembered that the first occasion the mother alleges that the child disclosed was on 2 March 2008. The inherent improbability of the mother making an innocent mistake of such magnitude with respect to something of such significance was a circumstance upon which the trial Judge was entitled to rely in relation to the probabilities in relation to that issue.
As the trial Judge clearly recognised, however innocent, the mother’s report to Dr O that the disclosure had been 10 months earlier than she suggested in her evidence, was a matter which was capable of assuming considerable significance in the circumstances of this case.
We are unable to accept the contention on behalf of the mother that the inconsistency in the mother’s evidence as to the date of the child’s alleged disclosure was “not an important issue”, or that the trial Judge “erred in considering it as important”. As his Honour accurately recorded, there was no physical or other circumstantial evidence capable of impacting upon the probabilities in relation to the wife’s allegations, save to the extent to which his Honour referred to it. It has not been suggested that he failed to refer to any evidence relevant to the issue. His Honour did not err in perceiving this as an important issue and treating it in the way in which he did.
Ground 6
Ground 6 provided:
6.His Honour erred in finding [53] that a discrepancy between the wife telling Dr [A] that she suspected the husband of using prostitutes, and telling Dr [O] that he was “having relationships”, was “an important inconsistency which goes to the wife’s credit”.
In support of this complaint it was submitted:
In the context of the mother not being aware of the exact nature of any extramarital affair by the father, could not be sure of whether any sexual relationship the father had was paid for by him: this is therefore not an “important inconsistency”.
We have not been referred to any evidence which suggests that the factual matters upon which the trial Judge relied in support of the inference he drew with respect to this topic were not other than reasonably open on the evidence before him. His Honour was in our view entitled to have regard to the discrepancy in the reports provided by the mother to Dr A and Dr O when assessing the mother’s credibility.
The inconsistency was not in our view so insignificant or inconsequential as to render reliance upon it erroneous or unfair to the mother. Perhaps more importantly, as various other passages of the trial Judge’s Reasons reveal, this topic was but one of numerous topics with respect to which the trial Judge, permissibly in our view, relied upon inconsistencies in the representations made by the mother to different people from time to time.
We are not persuaded that his Honour erred in having regard to the “discrepancy”, or doing so in the manner in which, and for the purpose for which he did so.
Ground 8
Ground 8 provided:
8.His Honour erred [55], in relation to the maternal grandfather’s evidence, in apparently assuming that keys hitting the wife and [A] would have resulted in a physical injury, and thereby declining to accept Mr [S’s] evidence in relation to this and an incident involving the husband allegedly kicking the wife.
In support of this challenge it was asserted that:
There was no evidence that the keys were thrown at [A] – keys falling on to [A] would be unlikely to have caused an injury. At no time has the mother claimed that the keys caused her any more than a transitory and minor injury.
These matters are clearly an insufficient basis for His Honour’s finding that Mr [S’s] evidence relating to the father kicking the wife, should be rejected.
The trial Judge recorded the mother as having asserted that the father “threw a set of keys at the wife” and that the keys “hit her on the left side of her face”. That is precisely what the mother alleged in her affidavit evidence. The trial Judge recorded that there was “no injury to the wife consistent with a bunch of 15 keys hitting the left side of her face with force”.
Mr S had deposed to having seen the father throw a set of keys at the mother “striking her face”. In cross-examination Mr S reiterated his claim that the father had thrown a set of keys from a distance of “probably three metres” which had hit the mother in the face.
Nothing to which we have been referred persuades us that the trial Judge was not entitled to have regard, when determining the probability of the mother having been hit with a bunch of keys thrown by the father, to the absence of any injury to the mother’s face consistent with that having happened.
Significantly, the trial Judge’s preference for the evidence of the father to that of Mr S, was not solely reliant upon this finding. Both in the context of his consideration of “credit” and with respect to other matters to which he later referred, the trial Judge provided further reasons for such preference.
Nothing to which we have been referred establishes that his Honour palpably misused his advantage as the trial judge in relation to this topic.
Ground 9
Ground 9 of the Amended Notice of Appeal provided:
9.His Honour erred [56] in placing weight on Mr [S’s] neutrality as a witness being compromised by the fact that “he currently relies on the wife for his accommodation”.
It was submitted in support of this complaint:
On the contrary, Mr [S’s] evidence was balanced. For example, at Tr 126.40 he gave evidence that he had never observed the father being violent prior to the incident on the morning of separation, 30 November 2005. At Tr 127.25 his evidence was that he had never seen the father, in his interactions with [A], do anything which caused him concern.
The trial Judge’s findings with respect to the evidence of Mr S were not based solely upon Mr S’s reliance upon the mother for his accommodation. It cannot be successfully contended that Mr S was a disinterested observer of the events of 30 November 2005. Mr S was, and was entitled to be, supportive of his daughter’s case before the trial Judge.
Objectively, three living persons were capable of attesting to the events of 30 November 2005: the mother, the father and Mr S. As the trial Judge clearly recognised, the probabilities were not impacted either way by any clear circumstantial or other evidence.
Significantly, whilst preferring the evidence of the father to that of the mother and Mr S in relation to the events of 30 November 2005, the trial Judge was aware of, and recorded, a number of respects in which the father’s evidence was less than entirely satisfactory.
Nothing to which we have been referred persuades us that the trial Judge impermissibly had regard to Mr S’s reliance upon the mother for his accommodation when evaluating the credibility of the parties.
It was further submitted in support of this challenge that:
His Honour has preferred the father’s evidence (e.g. as to the events on the date of separation) that he was not violent, and rejected both the mother’s and Mr [S’s] evidence without giving any reason apart from that set out in Ground 9. On the other hand, the father’s evidence was entirely uncorroborated.
This complaint is demonstrably unsustainable. As is clear from the trial Judge’s Reasons, whilst the issue of “credit” was considered early in the Reasons for Judgment, and a number of matters capable of impacting upon the credibility of the mother, the father and Mr S were then discussed, other matters, particularly with respect to the events of 30 November 2005, were subsequently examined in detail by the trial Judge. Mr S’s evidence with respect to the events of 30 November 2005 was part of the evidence carefully considered by the trial Judge.
The trial Judge gave abundant reasons for preferring the evidence of the father to that of the mother and Mr S in relation to the controversial issues requiring determination at trial.
Nothing to which we have been referred persuades us that, in the course of determining the proceedings, the trial Judge palpably misused the advantage which he enjoyed by reason of having seen and heard the witnesses give evidence with respect to the issues which arose for determination.
Ground 10
Ground 10 provided:
10.His Honour erred in placing no weight to Ms [M’s] neutrality as a witness being compromised by her being financially dependent on the husband.
It was submitted in support of this ground that:
This is a corollary to Ground 9, in that if Mr [S’s] evidence was compromised, there are at least equal reasons for Ms [M’s] evidence to have been compromised. Yet His Honour made no reference to this, nor has Ms [M’s] lack of neutrality been referred to in the Reasons, as he has done with Mr [S].
For the reasons which we have articulated, we are not persuaded that the trial Judge impermissibly rejected any suggestion of “neutrality as a witness” on the part of Mr S.
With respect to Counsel for the mother, this challenge is based upon flawed logic. Ms M was not present on 30 November 2005. No evidence given by her could have impacted upon the probabilities with respect to the events of 30 March 2005. In any event, we have not been referred to any evidence establishing that the trial Judge erred by being “impressed at the way Ms [M] gave her evidence”.
In what way Ms M was “financially dependent” upon the father has not been suggested. Nor has how Ms M’s evidence should have been regarded by the trial Judge as “compromised”. Nor have the consequences of it being “compromised”.
Ground 11
Ground 11 provided:
11.His Honour erred [57] in placing weight, without evidence, on evidence that “It is possible his (Mr [S’s]) memory is effected (sic)” because of his age (70 years) and that he “once drank significant quantities of alcohol”.
It was submitted in support of this ground that:
While His Honour only finds this as a possibility, it clearly has influenced His Honour’s view of Mr [S’s] evidence. His Honour does not mention how long ago it was that this alcohol was consumed, nor is there any evidence of Mr [S’s] consumption in the past affecting his memory on the day in question. This is a flimsy basis to attack Mr [S’s] memory and consequently to doubt his recollection of the important events of 30 November 2005.
Dr A recorded that Mr S reported to him that:
He said that he drank half a bottle of wine daily but also stated that it would take him four days to recover from drinking alcohol, which suggested that his intake was significant. He has not consumed alcohol since 1984. He is on tablets for diabetes.
To the extent that the trial Judge placed some reliance upon the evidence of Dr A, we are not persuaded that so doing was erroneous. Had that been the sole basis upon which the trial Judge preferred the evidence of the father to that of Mr S, this challenge may have some attraction. As his Reasons clearly reveal, both with respect to the issue of “credit” and with respect to the events of 30 November 2005, the trial Judge in fact relied upon numerous other matters. None of those matters has been shown to have been other than reasonably available for that purpose. Moreover, how the “possibility” complained of rendered his Honour’s conclusion with respect to the events of 30 November 2005 unsustainable, has not been demonstrated.
Ground 15
Ground 15 provided:
15.His Honour erred [111] in reaching a conclusion without adequate evidence that the mother’s consistency in her recounting of the events of 30 November 2005 “is in some way a product of the fact that she has constantly rehearsed her version of the events”.
In support of this challenge it was submitted:
The phrase “constantly rehearsed” implies that, if there has been rehearsal, the evidence is fabricated or at least exaggerated. Surely any witness to a traumatic event such as that which occurred on 30 November 2005 would have “rehearsals” (i.e. rethinking them as set out by His Honour at (Appeal Book p37.9). The “rehearsals” are reasonable – rethinking of the event so as to come to terms with it, taking photographs to assist in the criminal proceedings (a common method) and then of repeating her version “during therapy”: not only would the mother have “rehearsed” in these events, but also on other occasions (e.g. to her lawyer for the purpose of her affidavit, and to Dr [O] and Dr A). To ascribe a sinister purpose to such “rehearsals” is an error: His Honour found that “her version is inconsistent with the medical evidence: His Honour concentrates at [108] on not being able to see any facial bruising on the mother in the photographs taken on 30 November 2005, but he does mention that Dr [H] “did note some bruising to the lateral aspects of her L orbit”. It is difficult to see how the mother’s report of facial bruising is “inconsistent with the medical evidence”. In conclusion, His Honour finds that the mother’s version is a “more coherent and consistent version of what happened”, but he still dismisses her version of what occurred on that day.
This complaint appears to have two components.
The first is whether the trial Judge erred in not preferring the evidence of the mother and Mr S to that of the father with respect to the events of 30 November 2005.
The second appears to be the trial Judge’s conclusion that the “consistency” in the mother’s version of the events of 30 November 2005 was “in some way a product of the fact that she has constantly rehearsed her version” of those events was erroneous.
Objectively, if the trial Judge did not err by preferring the evidence of the father to that of the mother and Mr S in relation to the events of 30 November 2005, any conclusion or speculation on the part of the trial Judge as to how the mother may have come to give evidence which was not accepted was, with respect to his Honour, irrelevant. Even if his Honour was in error in suggesting how the wife came to give such evidence, that would not of itself render his rejection of it erroneous.
To the extent that anything turns on this complaint, it is to be remembered that, as the submissions of her Counsel recognise, the mother did, by repeating them, at least to some extent, “rehearse” her version of events of 30 November 2005.
The mother undoubtedly did “rehearse” her version of events on numerous occasions. The mother’s version of events was repeated to her lawyers, to Doctor’s H, O and A, and to the Police. As his Honour recorded, the mother also re-enacted and photographed her re-enactment of her version of the events of 30 November 2005. On the undisputed evidence before him, the trial Judge was in our view entitled to conclude that the “consistent version of what happened” on 30 November 2005 may have been “in some way a product” of her having “constantly rehearsed her version of those events …”.
So far as the trial Judge’s conclusion with respect to the events themselves is concerned, as our reasons for rejecting the challenges which we have earlier considered confirm, none of the matters now raised could enliven appellate intervention. The trial Judge saw and heard the witnesses in relation to the events of 30 November 2005, an advantage not enjoyed by this Court. It has not been demonstrated that his Honour palpably misused that advantage.
His Honour provided detailed reasons for concluding as he did. He may permissibly have reached a different conclusion, but that is not the test, as the authorities make clear.
Unless it be pursuant to one of the remaining grounds in this group of challenges, we are thus not able to accept that the trial Judge erred in concluding as he did with respect to the events of 30 November 2005.
Ground 17
Ground 17 provided:
17.His Honour erred [126] in rejecting the evidence of the mother and Mr [S] that the father had kicked the mother.
In support of this challenge it was submitted:
The mother and maternal grandfather’s evidence was that the father kicked the mother on the buttocks. One of the pieces of evidence which would have assisted was evidence of any injury. Counsel for the father did not cross-examine the mother on whether there was an observable injury, nor on whether there was no evidence of any examination of the mother’s buttocks did [sic] (presumably such an examination not take place in the presence of witnesses because of modesty issues).
With respect to Counsel for the mother, this submission is logically flawed.
We have not been directed to any evidence of the mother suggesting that there was “evidence of any injury” to the mother’s buttocks. As she made the allegation, it was for the mother to prove it. If injury to the mother’s buttocks was asserted in support of her claim that she had been kicked, it was for the mother to make that allegation. No evidence to which we have been referred, or have discovered for ourselves reveals that the mother made such an allegation. In those circumstances, it is hardly surprising that competent Counsel for the father would not ask questions in cross-examination which would have provided the opportunity for that allegation to emerge.
The evidence of the mother was:
188.I walked up the hallway and as I was exiting via the front door, Mr [Bramble] kicked me in the left buttock twice. He had his work boots on. His work boots were leather with steel caps on the toes. Mr [Bramble] threw a set of keys at me and the keys hit me on the left side of my face. The keys fell from my face onto [A’s] head. [A] continued to cry loudly.
In cross-examination the mother said:
MR JUHASZ: … I say to you that at no point did the father kick you while you were in the corridor?---No, sir. You’re saying he didn’t kick me, so I’m saying, no – yes, he did kick me.
Yes. And I’m saying to you at no point did he punch you while you were in the corridor?---I’m saying no, sir, because he did punch me.
Yes. And as a matter of fact, I’m saying to you that from the time of going into the laundry, to the corridor, he hasn’t even touched you?---And I’m saying I never entered, I never fully entered the laundry.
And I’m saying the only time the father’s made any contact with you in that whole scenario is when you’ve brushed past him in the corridor?---No, sir. And his first affidavit will show that.
So, I’m saying to you at no time in that whole incident did he punch you, did he kick you?---You’re very wrong, sir.
And throw keys at you?---That absolutely didn’t – it did happen the way I said, sir.
Okay, then you’ve gotten outside and indeed your father has then arrived and met you at the Land Cruiser?---No, he came from the front gate. He saw the first kick over the fence, which is about five foot high, and then he – the gates were open, he came around to his driveway, gates were open, he exited the driveway gates, he came around to the pathway gate, came in. By the time he came to the pathway gate into our section of the property, I was being kicked again off the veranda onto the grass.
Well, I say to you that that didn’t happen?---That’s incorrect, sir.
Mr S said in cross-examination that the father had kicked the mother with “extreme force”. We can find nothing in the evidence of the wife which so described the alleged kicking, but it can be inferred from what the mother said in the passage cited above, that she alleged that the kicking was forceful.
The trial Judge’s finding in relation to this issue was:
Had the Husband kicked the wife with the force described by Mr [S], it is highly improbable that the wife would not have shown and Dr [H] would not have observed some bruising or abrasion to the wife’s buttocks when Dr [H] examined the wife that afternoon. It is also likely that Mr [S] would have photographed the injuries that evening, had they existed..
In having regard to the evidence of the mother and Mr S, it was reasonably open to his Honour to conclude as he did, that it was improbable that at least two kicks with extreme force by steel toe-capped boots would not have resulted in some observable “bruising or abrasion to the wife’s buttocks”.
Nothing to which we have been referred establishes that the trial Judge erred in concluding as he did with respect to the father’s alleged kicking of the mother.
As with other aspects of the evidence, unlike this Court, the trial Judge had the advantage of seeing and hearing the witnesses give evidence in relation to this issue. As his Reasons clearly reveal, his Honour’s conclusions were not based solely upon the impressions he thereby gained, but were reinforced by reference to facts and circumstances which have not been shown to have been impermissibly relied upon. The advantage enjoyed by the trial Judge has not been shown to have been palpably misused.
Ground 18
Ground 18 asserted:
18.His Honour erred [147] in finding that the mother “has fabricated the sexual abuse allegations”.
In support of this challenge it was submitted:
At Tr 27.23ff, the mother describes noticing redness around [A’s] genital area, and [A] bouncing a horizontal male doll on a female doll (Tr 27.49). She has asked [A] about this, and [A] has answered that the dolls were “Daddy and [Ms M]” (Tr 30.8).
There is no evidence that the mother has fabricated these observations. If she had done so, it is likely that she would have given more graphic (and untrue) detail.
The mother agrees that there was no “internal” sexual assault on [A] by the father or anyone else (Tr 32.25).
Despite repeated questioning, the mother has denied a number of times that she believes [A] has been sexually interfered with (Tr 36.20, 36.26).
Nothing to which we have been referred establishes that, as a matter of law or logic, the absence of “more graphic (and untrue) detail” precluded a finding that the allegations have been “fabricated”.
The “redness around [A’s] genital area” to which the mother referred was not observed when the child was examined the day following the alleged disclosures of 1 March 2008.
In the passages identified by her Counsel, the mother initially agreed that she did not have any “concerns that the father has actually sexually assaulted his daughter as at today”. The mother reiterated that she believed “there was no physical evidence of sexual misconduct of my daughter”.
Counsel for the mother relied upon the following passage of cross-examination of the matter:-
MR JUHASZ: And the other concern you had – and I’m talking about as at 2 March 2008 – was that the father had sexually touched your daughter on her vagina. Those were the fears that you had as at 2 March 2008?---Yes.
What I ask you as at today, do you hold both those fears, or none of those fears, which one?---The first one, sir. I believe that my daughter witnessed a sexual act, with or without her consent, with the father, [Mr Bramble], and the girlfriend, [Ms M], on that date.
So, correct me if I am wrong, what flows from that answer is that you don’t have any concerns that the father has sexually assaulted his daughter as at today?---Yes.
HIS HONOUR: You do have concerns?---Sorry. I don’t believe there was internal interference on 2 March of my daughter’s vagina.
You don’t believe there was any interference, do you, or not?---I believe there was no physical evidence of sexual misconduct of my daughter.
The hospital has established that and there often isn’t any physical evidence when it’s happened. What’s your belief today in relation to whether or not your daughter was sexually interfered with by her father?---Physically? No.
No. You gave an answer which said that she may have witnessed a sexual activity between the father and his new partner, either with or without her consent. She’s three. What do you mean by “with or without her consent”?---I – I am led to believe that some sexual abusers make their – make children watch sexual acts, or that she was simply unsupervised and walked past the door, I don’t have evidence on either of those.
So you don’t know whether or not it was an unintentional walking in on something she wasn’t meant to see or whether or not she’s being groomed by the father for future sexual activity. Is that what you say to me?---I have no evidence either side because my daughter doesn’t not – is not at the communication level where we can examine that because the child psychologist cant speak to her until she is six.
But in your mind, her father is capable of grooming her for sexual activity in the future?---I’m surprised about the event as I hear it, so I cannot tell you how my husband is sexually in 2008. He is a sexually different man to the man who lived in my house.
I take it, from what you’re contemplating as a possibility, that it’s not just him who’s involved in this grooming but also his new partner?---She –whether she is an initiator – I – I have no evidence either side. I don’t – I’ve never met [Ms M], I don’t know who she is.
You see, ma’am, one of the hypotheses that you’re contemplating is that it wasn’t simply the child happening into a bedroom where the door wasn’t shut but what it could have been is her being groomed by her father for some future sexual activity; that’s one possibility that you have in your mind. Correct?---It is possibility?
Yes?---I---
What I am asking you is, if that is what you think, then, logically, doesn’t it mean that both the parties who are involved in that sexual activity and inviting the child in to watch it are complicit in that intention?---It is a possibility.
Is this the first time you’ve thought about this, this question I’ve just asked?---No.
Right. So in your mind, there’s a possibility---?---It is a possibility
---hat this---?---I will not---
---that this couple---?---disclaim.
---that this couple are deliberately exposing [A] to sexual activity to groom her, so that they can involve her in future sexual activities?---There is a possibility.
A balanced reading of the passage which we have set out above would not in our view militate against finding that the allegations the mother made were fabricated. The mother’s answers were relevant to the evolution of the allegations the mother made in her May 2008 affidavit in which she clearly alleged that the father had sexually abused A, as the trial Judge clearly appreciated..
Albeit a month later on 1 April 2008, the letter written by the mother’s solicitors to the father’s solicitors clearly conveyed the mother’s allegations that the father had sexually abused the child. The mother’s report to the Department of Community Services (“DoCS”) and the Child Protection Unit reiterated these allegations.
The trial Judge’s conclusion with respect to this topic is instructive for present purposes and reads:-
147.I am comfortably satisfied that there is no unacceptable risk that the husband has sexually abused [A] or exposed [A] to adult sexual activities. Whilst it is possible that the wife has led [A] to say certain things to her, I find on balance it is more likely that the wife has fabricated the sexual abuse allegations.
His Honour made a finding of comfortable satisfaction that there was “no unacceptable risk” that the father had sexually abused the child or exposed her to “adult sexual activities”.
That is the finding which is critical for present purposes. If that finding is successfully challenged, then, necessarily, any conclusion with respect to fabrication cannot survive. Conversely, if that finding survives appellate challenge, his Honour’s conclusion that the mother’s allegations were fabricated was not relevant to that issue, although the finding with respect to “fabrication” remained significant in the way suggested by the trial Judge later in his Reasons for Judgment.
The trial Judge referred to a number of matters in the evidence which were capable of supporting the finding he made with respect to fabrication. That finding was not inevitable, but that is not the test for present purposes. Whilst other findings may have been open to his Honour, nothing to which we have been referred persuades us that the finding was not reasonably open to him. It is to be remembered that the finding related to the making of the allegations in March and May 2008. Contrary to the submissions of her Counsel, the evidence of the mother at trial did not establish that the mother had resiled from any of the allegations of abuse which she had previously made.
Ground 19
Ground 19 provided:
19.His Honour erred [178], after his conclusion that “I am unable to say with any certainty whether or not the wife has a delusional disorder or a personality disturbance”, in concluding that she has one or the other (based on the evidence, she may have neither).
The use of “may” in this challenge is significant. So too is the assertion that the evidence did not support findings in the terms made by the trial Judge.
It was submitted in support of this challenge that:
In her oral evidence, Dr [O] (Tr 214.25) says that Dr [A] failed to give a diagnosis although he “concludes that she appeared to have some mental illness”, and she says that the mother’s presentation to her (Dr [O]) was quite different – there was nothing unusual about the mother’s presentation except that “she was perhaps a little calmer than most people are under such circumstances”. Dr [O] saw the mother eight months after Dr [A] (Tr 214.29) and His Honour has failed to take into account that the mother’s mental state may have improved dramatically since seeing Dr [A].
In his oral evidence (eg Tr251.40), Dr [A] agrees that his opinion (and that of Dr [O]) must be qualified by neither of them having access to objective records (eg police or medical).
His Honour appears to have discounted the possibility, which is supported by the evidence of Dr [O], that the mother may have NEITHER a “delusional disorder or a personality disturbance”, even though Dr [A] is unable to give a definite diagnosis.
The trial Judge’s finding in relation to this topic was:
178.I am unable to say with any certainty whether or not the wife has a delusional disorder or a personality disturbance. In my view that diagnosis has not been definitively made by either doctor and I accept Dr [A’s] opinion that to make that diagnosis, a course of consultations would probably need to be undertaken by the wife in a non forensic setting. On either of the possible diagnoses however, there is an unacceptable risk that the wife’s mental status will, in the future, pose a significant threat to [A] being able to establish a meaningful relationship with her father.
The critical portion of the trial Judge’s finding is found in the final sentence of that paragraph and relates to the unacceptable risk which his Honour described. Significantly, neither this ground nor any submission made in support of it challenges that finding. That being so, even if this complaint were made out, so doing would not enliven appellate intervention.
As the trial Judge’s Reasons make clear, the mother presented quite differently before each of the two medical experts who saw her, albeit they saw her some eight months apart. The trial Judge did not, and did not need to make a specific finding with respect to what he advisedly described as the mother’s “mental status”. On the evidence before him, the trial Judge could not do so, for the reasons which he stated in the paragraph which we have set out above.
In the absence of a successful challenge to the critical finding made by his Honour, this ground cannot enliven appellate intervention.
Ground 20
Ground 20 provided:
20.His Honour erred [178] in concluding that, if she has either of these diagnoses “there is an unacceptable risk that the wife’s mental status will, in the future, pose a significant threat to [A] being able to establish a meaningful relationship with her father”.
It was submitted in support of this ground that:
His Honour has failed to set out his reasons for there being an “unacceptable risk”: it is a simple assertion. This Full Court is left in the dark as to His Honour’s reasoning.
Although this ground asserts that the trial Judge erred in finding “unacceptable risk” in the terms in which he did in the paragraph which we have set out above in the course of dealing with Ground 19, the submission in support of it appears to assert that the trial Judge provided inadequate reasons for so finding.
We are unable to accept that the trial Judge’s Reasons for Judgment were inadequate. Having carefully examined the evidence of each of Doctors A and O, the trial Judge found that the diagnosis of each doctor provided a foundation for concluding that there was an unacceptable risk of the kind his Honour described. It has not been established that the evidence of either doctor could not be accepted.
The Court is in no doubt why his Honour so concluded. With respect to him, what more his Honour could productively have said in that regard is hard to imagine, and has not been suggested.
To the extent that the ground as pleaded is a challenge to the finding itself, nothing to which we have been referred persuades us that the challenge has merit. There is no suggestion that the trial Judge misconceived or misunderstood the evidence of Dr O or Dr A. Nothing to which we have been referred establishes that the evidence of either doctor was incapable of acceptance, or could not reasonably support the finding of unacceptable risk which the trial Judge made.
Ground 25
Ground 25 provided:
25.His Honour erred [210 and 242] in giving undue weight to the parties’ homes are about 1.5 hours driving from each other, in ordering that the wife spend time with [A] (after a phase-in period) only once per fortnight (apart from order 7.7, which provides for a block period of 8 days each 3 months).
In support of this challenge it was submitted:
Particularly where, a child is some time away from starting school, a travelling time of about 1.5 hours is not a serious impediment to the child spending equal time with each parent, or certainly “substantial and significant time” with a parent. Here, there seemed to be no practical difficulties in changeovers being more frequent than as ordered by His Honour.
The trial Judge referred to the fact that the parties lived an hour to an hour and a half away from each other as the source of some “difficulties and expense” of the child being “in touch with” her other parent.
His Honour concluded that, “after a short lead-in period” the travel “should be more evenly shared and that the changeover point should be at a spot approximately equal distance from the residence of the two parties”.
The trial Judge reiterated that “the distance that the parents currently live apart … would not be insurmountable however was it not for the fact that the current and future capacity of the parents to communicate with each is highly problematic and is not conducive to a coparenting arrangement.
Perhaps more significantly for present purposes, the trial Judge added:
243.The main reason however for not considering a coparenting arrangement is the fact that the impact of that arrangement upon [A] would be to place her, for a significant period of time, on a regular basis, with her mother who believes that [A’s] father is a person who is likely to groom [A] for sexual activity, is likely to expose [A] to sexual activity and is likely to expose [A] to family violence. It is in [A’s] best interests that [A’s] exposure to these thoughts by her mother be limited as much as possible.
With respect to Counsel for the mother, it cannot be successfully asserted that the trial Judge gave undue weight to the distance which the parties live apart. As the passages of his Reasons to which we have referred confirm, the “main reason” for making the order which his Honour made was that articulated in the passage of his judgment which we have set out above.
His Honour clearly stated in the previous passage of his judgment that the distance of itself was not an “insurmountable” barrier to the making of any order for substantial and significant time to be spent with each parent. A balanced reading of his Reasons for Judgment suggests that the trial Judge gave relatively little weight to the distance which separated the residences of the parties. Other matters assumed much greater significance.
Ground 30
Ground 30 provided:
30.His Honour erred [243] in finding that to place [A] mainly with the mother would “place her, for a significant period of time, on a regular basis, with her mother who believes that [A’s] father is a person who is likely to groom [A] for sexual activity, is likely to expose [A] to sexual activity and is likely to expose [A] to family violence.
In support of this challenge it was submitted:
As set out above, the evidence for “grooming”, exposing [A] to sexual activity and family violence is not a view that the mother expressed positively – her answers were in relation to questions, mainly from His Honour, as to whether these matters were possibilities.
At Tr 47.12 and 47.32, the mother says that if [A] does not make future disclosures, she will not refer her to counselling etc when she is of sufficient age to communicate with the counsellor.
We have largely dealt with the matters raised in support of this challenge when dealing with earlier complaints within this group of challenges. It has not been demonstrated that the trial Judge’s findings with respect to the mother’s “beliefs” were not reasonably open to him. The inferences drawn by his Honour in reliance upon those findings were also reasonably open to him.
The additional evidence upon which Counsel for the mother relied in support of this challenge is not quite to the effect that Counsel for the mother asserted. It is instructive to quote the totality of the evidence in relation to this topic:
HIS HONOUR: You’re being asked ma’am: when she turns six, are you going to seek some therapy for her for---?---If and when she comes up with other abusive issues which has been multi-issued with her father on open contact I will take her back if needed.
But if there is nothing that arises between now and then you won’t?---No.
Right. Thank you?---I can’t anyway.
MR JUHASZ: Now, you mention the nightmares---
HIS HONOUR: Well that answer indicates to me you may not have understood the proposition.
MR JUHASZ: Okay.
HIS HONOUR: You’re being asked; if nothing happens between now and when she is six, would you take her to a therapist at the age of six when she is viable---?---Concerning something that happened when she was two?
Three. When was she---?---It was before her birthday.
She was virtually three wasn’t she?---Yes
Yes, that’s the question. What’s the answer? If she didn’t bring it up again, no.
With respect to Counsel for the mother, that evidence does not advance his assertion that the trial Judge’s conclusion was erroneous. As we have earlier observed, the trial Judge’s conclusion with respect to the “unacceptable risk” arising from the child primarily living with the mother was in part based upon his acceptance of the medical expert opinion evidence. It has not been established that his Honour erred in accepting the evidence of Dr A or Dr O. Nor has it been established that his Honour misunderstood, or otherwise erred in his reliance upon that evidence.
It is apparent from his Reasons for Judgment that the trial Judge found the unacceptable risk in part in reliance upon the evidence of the mother. So doing has not been shown to have been erroneous, either in relation to the trial Judge’s findings of fact, or the inference he drew in reliance upon them.
Nothing to which we have been referred establishes that the conclusion the trial Judge reached in relation to this topic was not reasonably open to him.
Ground 31
Ground 31 provided:
31.His Honour erred [243] in considering the matters in the preceding ground as sufficient to be “the main reason…for not considering a co-parenting arrangement”.
In support of this challenge it was submitted:
Dr [A] and Dr [O] both considered co-parenting a possibility in these circumstances, but His Honour has disregarded this expert opinion.
Significantly, the submission of Counsel for the mother in support of this challenge referred to the “possibility” of co-parenting. The trial Judge was obliged to make a decision based on probabilities.
It is not correct to suggest that the trial Judge “disregarded” the evidence of Dr A and Dr O. His Honour clearly examined the “possibility” of co-parenting being in the child’s best interests.
We have not been referred to any evidence of either doctor suggesting that co-parenting would be desirable and effective on the balance of probabilities. Even if Dr O and/or Dr A had recommended a co-parenting arrangement, the trial Judge was not bound by such recommendations. As the ultimate trier of fact, the trial Judge was obliged, by reference to the provisions of Part VII of the Act, to determine the best interests of the child in light of his findings of fact with respect to the mother. [See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705].
As his Honour’s Reasons for Judgment make clear, the “main reasons” for not embracing a co-parenting arrangement were the matters to which his Honour referred in paragraph 243 of his Reasons for Judgment, which we have set out earlier in these Reasons. His Honour also considered in that context the “current and future capacity of the parents to communicate with each other”, which was “highly problematic” and “not conducive to a coparenting arrangement”.
It has not been established that his Honour erred in the exercise of his discretion in relying upon those matters, either by erroneously finding the facts as he did, or impermissibly affording them excessive weight.
For the reasons we have articulated, we do not find merit in any of the complaints agitated within this group of challenges.
Findings favourable to the husband without evidence or adequate evidence
Ground 12
Ground 12 provided:
12.His Honour erred [69] in finding that, and criticising the wife for, the wife’s reporting of an incident in 2001 involving the father and his son [C] (from a previous marriage), being “disingenuous”.
It was submitted in support of this challenge that:
Most of the facts were undisputed (i.e. that the father’s son, 8 years old in 2001, ran away at a changeover as he wished to stay with his mother, and that the father chased him down the road). The only dispute was the amount of force used by the father. The mother having a different recollection of the incident in this respect about seven years later is likely to have been the product of human memory, rather than being “disingenuous”.
Whatever the basis or cause of it, the facts as found, and recorded by the trial Judge in relation to this topic supported the finding that the mother’s complaint was “disingenuous”. The trial Judge provided numerous logical reasons for so concluding.
The first [par 70] was that the mother made no complaint to DoCS about the events of 2001 until after the separation of the parties in 2005. That delay must be seen in the context that the mother alleged [par 170 of her 2007 affidavit] that the father “chased [C] up the street and tackled him to the ground” during which “the cigarette in [Mr Bramble’s] mouth touched [C’s] neck” after which “[C’s] neck was bright red”. The mother alleged that she reported the incident to DoCS, which she in fact did, albeit four years later than her affidavit suggested.
It has not been demonstrated that the trial Judge palpably misused the advantage which he gained by seeing and hearing the evidence of the parties in relation to this incident.
Nothing to which we have been referred precluded his Honour from finding as he did. The credit finding made by his Honour provided further support for the finding which he made. Moreover, even if erroneous, nothing to which we have been referred establishes that such error vitiated the exercise of the trial Judge’s discretion.
Ground 14
Ground 14 provided:
14.His Honour erred [102] in failing to make a finding as to the significance of the lack of statement or affidavit from the father’s mother (she was deceased at the date of the hearing, but had an opportunity to swear an affidavit in the interim proceedings), particularly concerning events on the date of separation, 30 November 2005.
In support of this challenge it was submitted:
His Honour has made findings regarding the mother’s supposed lack of veracity and criticised Mr [S’s] ability to recall accurately the events of 30 November 2005, but made no criticism of the father’s case as to the absence of evidence from the paternal grandmother.
This complaint can be swiftly disposed of.
The trial Judge specifically addressed the “Lack of evidence from the husband’s mother”.
The husband’s mother died prior to the trial. His Honour recorded, accurately there is no doubt, that there was no evidence of any statement having been taken from the husband’s mother with respect to the events of 30 November 2005 prior to her death.
His Honour recorded that Counsel for the mother “did not make any Jones & Dunkel submission, although Counsel put to the husband in cross-examination that the reason he did not obtain an affidavit from her in the first place was because he knew her evidence would not assist his case. The husband denied that that was so”. We have not been referred to any submission to the trial Judge which was inconsistent with that statement.
With respect to Counsel for the husband, the submission that the trial Judge erroneously “made no criticism of the father’s case as to the absence of evidence from the paternal grandmother” mistakes or misconceives the law in relation to this topic. Given that the husband’s mother died prior to the trial, and in the absence of any evidence that she should have prepared a statement for later use in Court proceedings, we doubt whether a so called Jones & Dunkel inference could have been made, even if it had been sought, which it was not.
This challenge fails.
Ground 23
Ground 23 provided:
23.His Honour erred [204] in finding, without evidence or adequate evidence, that [A’s] “night terrors” “are a product of the wife’s mental status”.
In support of this challenge it was submitted on behalf of the wife that:
His Honour appears to have made this finding without evidence. Yet there are other explanations less favourable to the husband: for example, at Tr188.5 the father, when confronted by a photograph of him doing a “wheelie” on a motor cycle with a child without a helmet, admitted the behaviour, after previously saying he failed to recall such behaviour. His evidence was that, while [A] had ridden a motor cycle with him, it had been done at approximately walking pace and was very safe. In the light of the father’s inability to recall doing a “wheelie” with a child on the cycle [sic] with him, His Honour should have treated the father’s evidence regarding [A] with caution.
The facts and circumstances to which his Honour had regard did not overwhelmingly favour either parent, as his Reasons for Judgment confirm. The various factors for and against changing the child’s primary place of residence were able to be given differing weight without enlivening appellate intervention. On the facts of this case, his Honour may permissibly have come to a different conclusion. That however, is not the test, as the authorities make clear.
Nothing to which we have been referred persuades us that the trial Judge failed to adequately take into account the child’s primary attachment to her mother.
Ground 32
Ground 32 provided:
32.His Honour erred in failing to give adequate weight to Dr [A’s] view (page 13.6 of his report) that “It is preferable to make an order that allows for a review of [A’s] placement in 12 months’ time”.
In support of this ground it was submitted:
While this recommendation poses problems for the trial judge at a final hearing, His Honour has failed to deal with the recommendation in his Reasons.
Dr A’s evidence was undoubtedly that it was “preferable to make an order that allows for a review of [A’s] placement in 12 months’ time”. That however did not mean that no order should be made in the meantime. Clearly, his Honour had to make an order regulating the child’s life, whether that be for the coming 12 months or beyond.
On behalf of the father it was submitted, correctly, that neither party sought an order in those terms. It was submitted that there was no reason for the trial Judge to refer to Dr A’s opinion in his Reasons for Judgment.
We agree with the submission on behalf of the father that, neither party having sought an order of the kind Dr A suggested to be preferable, the trial Judge was not required to refer to or consider that possibility. It might be noted that Dr A also recommended that the child spend half her time with each of her parents. That recommendation was not embraced by either parent.
Earlier in his written submissions, Counsel for the mother referred to the adversarial nature of the proceedings before the trial Judge, albeit for a different purpose. In the circumstances of this case, had the trial Judge made an order of the kind recommended by Dr A in circumstances where neither party sought such an order, so doing may have constituted appealable error unless the trial Judge raised the prospect of making such an order with the parties, and permitted them to make submissions in response to it. The failure to make such an order does not constitute an appealable error in the circumstances of this case.
Important orders based on the above errors
Ground 1
Ground 1 provided:
1.His Honour erred in failing to consider, or consider adequately, that the parties spend equal time with [A].
In support of this challenge is was submitted:
Having considered Dr [A’s] report and other factors (eg the father’s work) and in answer to His Honour’s questions (Tr 218), Dr [O] expresses the view that [A] should spend more than 50% of the time with the mother.
Ms [M’s] evidence (Tr 203-205) is that the father works outside the home full-time, and she works partly at home and partly away from home. Although she says the hours are flexible, it was not clear how [A] would be cared for if mainly in the father’s care.
It was submitted on behalf of the respondent that neither party sought orders that the child spend 50 per cent of her time with each parent. Nothing to which we have been referred by Counsel for the mother indicates that either party sought an order for an equal sharing of the child’s time with both parents.
Whilst we accept that his Honour was not bound by the absence of any request by the parties to order an equal sharing of time between them, his Honour clearly explained in his Reasons why such a regime would not have been in the child’s best interests in any event.
Ground 33
Ground 33 provided:
33. His Honour erred in failing to follow the recommendation of Dr [A] (pages 12.8 and 13.7 of his report) that “A should have a relationship with parents, at this stage I recommend that she spends half her time with each”.
In support of this complaint it was submitted:
His Honour has failed to set out reasons for declining to follow the expert evidence of Dr [A] in this respect, having preferred Dr [A’s] evidence to that of Dr [O] in other respects (although Dr [O] does not disagree with Dr [A] on this point).
To the extent that this challenge is materially different to the challenge articulated by Ground 1, our reasons for rejecting Ground 1 still have application. As we there noted, quite apart from the absence of any submission to his Honour that Dr A’s recommendation be embraced, the trial Judge provided adequate, and cogent reasons for rejecting equal time sharing as being in the best interests of the child.
Ground 2
Ground 2 provided:
2.His Honour erred in failing to consider, or consider adequately, that the mother should spend “substantial and significant time”.
In support of this complaint it was submitted:
Tr 14.15 – The husband sought that, until [A] started school, time be shared by the parents, a “week on, week off arrangement”, or (Tr 15.1) three days with one parent and four with the other, reversed in the next week. While His Honour was not bound by the father’s application, he fails to give adequate reasons in the judgment for not making such orders.
As set out above under Ground 20, His Honour has failed to set out (AB p51.1) his reasons for there being an “unacceptable risk”: it is a simple assertion. This Full Court is left in the dark as to His Honour’s reasoning.
To the extent that the mother’s complaint with respect to the trial Judge’s Reasons for finding an unacceptable risk could conceivably advance this challenge, we have earlier dealt with, and for reasons then articulated, rejected those challenges to the basis of the trial Judge’s finding of unacceptable risk, and to the adequacy of his reasons for such finding.
So far as the complaint with respect to substantial and significant time is concerned, the trial Judge clearly examined that issue in his Reasons for Judgment. Why his Honour ordered as he did is not in doubt having regard to those reasons. The reasons are to be found in the many paragraphs of his Honour’s Reasons for Judgment to which we have previously referred and particularly in paragraphs 191, 192, 193, 194, 195, 196, 206, 207, 208 and 209.
Ground 3
Ground 3 provided:
3.His Honour erred in failing to grant the mother “substantial and significant time” with [A].
In support of this challenge it was submitted:
The father agrees (Tr 147.37) that “[A] has been with her mother primarily or certainly since separation on a full-time basis:, and that he has had no overnight time since separation (Tr 147.46).
Neither Dr [A] nor Dr [O] recommended that [A] should live primarily with the father. His Honour has found contrary to unanimous expert opinion that [A] should continue to live either mainly or perhaps equally, with her mother.
In general, His Honour has given no proper reasons for his decision to depart from express expert opinion on this issue.
The time granted to the mother is not “significant time”, as the definition of “significant” includes an ability of each parent to be involved in such matters as readying the child for school, and this will be denied to the mother on the current orders.
There appear to be two complaints in relation to this issue, the first being the adequacy of the trial Judge’s reasons with respect to substantial and significant time, the second being whether the time granted to the mother was capable of constituting significant time within the meaning of the Act.
In our view, the trial Judge’s Reasons for Judgment in relation to this topic adequately reveal the process of reasoning which led him to conclude as he did. That process finds expression in the paragraphs to which we referred when dealing with Ground 2.
The submission that the “unanimous expert opinion” evidence before the trial Judge was that the child “should continue to live either mainly or perhaps equally, with the mother” is simply erroneous. As the trial Judge appreciated, both Dr O and Dr A had reservations about the capacity of the mother to effectively parent the child on the one hand, and about the father’s proposals by virtue of the uncertainty surrounding them on the other, as did the trial Judge. Nothing to which we have been referred establishes that his Honour failed to appreciate these matters, or to take them into account. Nor has it been established that how the trial Judge took these matters into account was not reasonably open to him.
It remains only to consider whether the time the mother was to spend with the child pursuant to the trial Judge’s orders was capable of constituting “significant time”. The submissions of Counsel for the mother assert that the time provided was not substantial. The focus is accordingly on “significant”.
In Eddington & Eddington (No.2) [2007] FamCA 1299, the Full Court discussed the impact and significance of a child spending significant time with a parent. The Full Court recorded:
66… Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time. In our view, the time which the children would spend with the appellant pursuant to the trial Judge’s orders, the duration of such periods and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant. There is thus a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that the case turns on its own particular facts and circumstances, and the reality that the roster of the appellant in this case has particular impacts upon what may constitute substantial and significant time spent with the appellant.
Nothing to which we have been referred establishes that the trial Judge’s orders failed to provide substantial and significant time being spent with the mother. In what way the orders are asserted to have failed to do so has not been suggested.
Ground 4
Ground 4 provided:
4.His Honour erred in granting sole parental responsibility to the father.
In support of this challenge it was submitted:
There is no evidence that the parties are incapable of reaching decisions regarding [A’s] long-tern welfare.
The mother’s evidence (Tr 63.34ff) demonstrates that the mother is willing and able to communicate with the father about [A] (writing, verbal communication). The written documents were shown to the mother at Tr 64.18, and she agreed that there was communication at that time.
The mother gave evidence (Tr 68.25) that one of the central problems in the recent lack of communication between the parents was the litigation – her belief was that communication would improve “after this event”.
At Tr 69, the mother shows that she is willing to engage in “future therapeutic intervention” (His Honour at p69.37) to further [A’s] welfare.
The father (Tr 195.38) says that he does not think it is necessary for the mother to know his residential address, even if [A] is to stay there, and he does not see the relevance of this (Tr 196.5).
Counsel for the father submitted, accurately, that each party sought sole parental responsibility for the child.
The evidence before the trial Judge supported his adverse findings with respect to the ability of the parties to communicate. The evidence of the mother was that communications between the parents were limited to the mother writing “a full page of [A’s] likes and dislikes”.
The trial Judge explored the possibility of the parties attending therapeutic counselling in relation to their communication during the course of the trial, after the mother maintained her view that the child should have supervised access with the father until she turns six years of age.
Quite apart from the fact that both parties sought sole parental responsibility, the trial Judge’s reasons for declining to preserve joint parental responsibility were both adequate, and cogent.
Ground 28
Ground 28 provided:
28.His Honour erred [235-240] in giving undue weight to considerations of alleged child abuse, family violence and poor communication between the parties in making an order for sole parental responsibility in favour of the father.
In support of this challenge it was submitted on behalf of the mother that:
An order for sole parental responsibility for a young child is an important one. His Honour has found that there has been no child abuse (except arguably psychological abuse by the mother?) and no family violence in recent years. His Honour should have found that the presumption in s61DA applies in favour of equal shared parental responsibility (contrary to his finding at [236]). That neither parent sought this is not determinative of the issue. There was no order for a post-separation or other course to address the issue of poor communication.
Nothing to which we have been referred persuades us that the trial Judge gave “undue weight” to any of the matters complained of in this ground, either individually or collectively. Although the mother and her Counsel may not like it, the trial Judge did not proceed on the basis of “allegations” but, in every instance to which this complaint refers, made findings of fact which have not been successfully challenged in this Court.
Whilst his Honour could conceivably have come to a different conclusion with respect to sole parental responsibility, the findings of fact made by him, and his Reasons for Judgment support his conclusion that so doing would not have been in the best interests of the child. It is sufficient to simply record that nothing to which we have been referred persuades us that the trial Judge’s conclusion with respect to parental responsibility was erroneous.
Ground 29
Ground 29 complained:
29.His Honour erred [237] in giving undue weight to neither party seeking equal shared parental responsibility, in making an order for sole parental responsibility.
Nothing which had not already been submitted was urged in support of this challenge. As we have earlier made clear, whilst the trial Judge gave weight to the fact that neither parent sought an order for equal shared responsibility (par 237), he did not base his decision solely, or even primarily on that circumstance. His Honour revealed the reasoning process which led him to conclude that sole parental responsibility was in the best interests of the child in the paragraphs which followed. No error in that process has been demonstrated.
Nothing to which we have been referred establishes that undue weight was given to the fact that neither party sought an order for equal shared parental responsibility.
Ground 7
Ground 7 complained:
7.His Honour erred in finding “that I cannot assume the wife is a reliable witness”. [54]
In support of this challenge it was submitted:
Set out above are examples of mistakes by the mother (eg discrepancy in dates as to when [A] made a disclosure arising from playing with her dolls) which, it is submitted, fall far short of justifying a finding that the wife is not a reliable witness. His Honour phrases his finding that he “cannot assume” the wife is a reliable witness, but then his orders and his findings on the wife’s credit (AB p27) reflect a positive finding that he finds the wife unreliable. His Honour on that page gives only four reasons for this crucial finding:
i) the mother’s “articulate, measured and contained” manner of evidence relating to domestic violence or possible sexual abuse;
ii) inconsistency in her account of [A’s] head hitting the architrave;
iii)the mother giving the wrong month and year to Dr [O] as to when [A] was playing with dolls;
iv)the mother’s different evidence as to whether the father was having affairs, or was using prostitutes.
There are many parts of the evidence where the mother could have, but did not, blame the father for [A’s] behaviour (eg at Tr 49.48, where she does not know the reason for [A] having night terrors).
Where the mother and father differ markedly (eg Tr 156.20, where the father says that the mother has fabricated her version of the alleged altercation between the father and his son [C] in 2001) His Honour accepts the father’s version uncritically even though there is no corroborative evidence either way.
The corollary is that His Honour found the father to be truthful. No criticism was made of the father, for example, for not relying on an affidavit by his mother, who was a witness to the incident on 30 November 2005 (day of separation), upon which a great deal of oral evidence was presented (see Tr 169.28).
His Honour has made no findings on such inconsistencies in the father’s evidence (eg Tr 170.20, where the husband omits to mention that the mother knocked his glasses off on that occasion, whereas he had sworn a previous affidavit that she had.
We have dealt elsewhere with virtually all of the matters raised pursuant to this complaint. It is unnecessary to refer again in detail to those matters. We simply record that the trial Judge saw and heard the parties give evidence. He had regard to such other evidence as there was before him which was capable of impacting upon the probabilities. We have earlier referred to the authorities to which we have had regard with respect to this topic. Nothing to which we have been referred establishes, either individually or cumulatively that the trial Judge palpably misused the advantage which he undoubtedly had over this Court by virtue of his having seen and heard the evidence.
We have earlier referred to some of the authorities which are relevant to this topic.
Ground 24
Ground 24 provided:
24.His Honour erred [207] in failing to take into account sufficiently that “Dr [O] cautioned against placing the child of [A’s] age with the other parent…where the child was primarily bonded to the wife”.
In support of this challenge it was submitted:
Neither Dr [O] nor Dr [A] supported the orders eventually made by His Honour regarding [A’s] time with each parent, and His Honour has given no convincing reasons for apparently ignoring this expert evidence.
We have earlier dealt with both of the matters which appear to be raised pursuant to this ground.
The trial Judge was not required to give “convincing reasons” in relation to any aspect of the proceedings before him. There is a presumption that the trial Judge’s decision was correct. The mother bears the onus of demonstrating appealable error in accordance with long established principles.
This challenge is in reality a challenge to the weight given to the evidence of Dr O, although the submission amplifies the complaint to include Dr A. Nothing to which we have been referred establishes that insufficient weight was given to this evidence.
In the numerous paragraphs of his Reasons for Judgment to which we have referred when considering other challenges, his Honour made abundantly clear that he was mindful of the caution which emerged from the expert opinion evidence before him. His Honour was the ultimate trier of fact. He had the advantage over Dr O, Dr A and this Court of seeing and hearing the witnesses give evidence in relation to disputed issues of fact, including issues of fact upon which the expert opinion evidence was necessarily reliant in some respects.
Nothing to which we have been referred establishes that his Honour failed to “take into account sufficiently” any caveat emerging from any of the expert opinion evidence before him.
Ground 27
Ground 27 provided:
27.His Honour erred [234] in failing to consider or take account adequately that the orders were not the orders least likely to lead to future proceedings, and in finding that “I do not put a great deal of weight on this matter”.
In support of this challenge it was submitted:
His Honour recognises at [234] that where orders are made for a young child (where the child’s views are unimportant) with a primary attachment to one parent, to live with the other parent, has the potential to lead to future proceedings, particularly where, as here, both parents are intensely interested in the child’s future. His Honour acknowledges at [234] that “it is likely that she (the mother) will seek to challenge them”, but then baldly states that he does not put a great deal of weight on this aspect, without giving any reasons for this finding.
As the submission recognises, the trial Judge dealt specifically with this topic. For the reasons which his Honour provided, he did not place “a great deal of weight” on the topic which gives rise to this complaint.
With respect, on the evidence before him, the trial Judge could not reasonably have given any significant weight to the topic. Objectively, as his Reasons for Judgment confirm, any order made by the trial Judge in reliance upon the evidence before him necessarily had a significant measure of the unknown.
Nothing to which we have been referred on behalf of the mother establishes that this challenge has merit.
Ground 34
Ground 34 provided:
34.In relation to each of the above grounds, His Honour erred in failing to give reasons, or in the alternative adequate reasons, for the respective findings or orders.
It was submitted in support of this complaint that:
This is a general ground and specific instances are dealt with above.
Having dealt with each and every one of the “specific instances” agitated earlier, and rejected them, it follows that this challenge cannot succeed.
Conclusion
None of the 34 Grounds of Appeal agitated before us having merit, the mother’s appeal will be dismissed.
Costs
Counsel for the father sought an order for costs against the wife if the appeal was dismissed.
To the extent that the claim for indemnity costs was maintained, we record that we would not award indemnity costs in the circumstances of this appeal. On the other hand, having regard to the provisions of s 117 of the Act, we are however of the opinion that the circumstances of the appeal justify an order for costs being made against the mother.
As the trial Judge’s unchallenged decision with respect to property settlement confirms, the mother will receive substantial capital pursuant to those orders, and significantly more than the father. If an order for costs against the mother is otherwise justified, no aspect of the financial circumstances of the parties would disincline us to award such costs.
As our Reasons for Judgment reveal, the mother has been wholly unsuccessful with her appeal. Without wishing to be unduly critical, the number and nature of the challenges raised on the mother’s behalf necessarily put the father to considerable expense. As we have earlier noted, the Grounds of Appeal significantly involved challenges to the weight given to relevant facts and circumstances and challenges to the trial Judge’s findings with respect to credit. The authorities to which we have referred make clear the obstacles which confront successful challenges of those kinds.
We shall accordingly order that the mother pay the father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 1 March 2010
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