Lindsay & Baker
[2007] FamCA 1273
•26 October 2007
FAMILY COURT OF AUSTRALIA
LINDSAY & BAKER [2007] FamCA 1273
FAMILY LAW – APPEAL AGAINST DECISION OF FAMILY COURT JUDGE – CHILDREN – Child sexual abuse allegations – Approach by trial Judge to unacceptable risk of abuse – Application by mother for supervision – Appeal dismissed – Cross-Appeal dismissed – No order as to costs.
FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Application dismissed.
Family Law Act 1975 (Cth)
CDJ v VAJ (1998) FLC 92-828
De L v Director-General, NSW Department of Community Services& Anor (1996) FLC 92-706
De Winter & De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR
M and M (1988) FLC 91-979; (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
S v R (1999) FLC 92-834
APPELLANT: MS LINDSAY
RESPONDENT: MR BAKER
INDEPENDENT CHILDREN’S LAWYER: DAMIEN CARTER
FILE NUMBER: BRF 11130 of 2003
APPEAL NUMBER: NA 29 of 2007
DATE DELIVERED: 26 October 2007
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Bryant CJ, Finn, May JJ
HEARING DATE: 3 August 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 15 March 2007
LOWER COURT MNC: [2007] FamCA 1037 REPRESENTATION
SOLICITOR FOR THE APPELLANT: Appellant appeared in person
SOLICITOR FOR THE RESPONDENT: Respondent appeared in person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor of Counsel
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Naughton Rice Orders
(1)That the appeal be dismissed.
(2)That the cross-appeal be dismissed.
(3)That there be no order as to costs.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Lindsay and Baker.
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
Appeal Number: NA 29 of 2007
File Number: BRF 11130 of 2003
MS LINDSAY Appellant
And
MR BAKER Respondent
REASONS FOR JUDGMENT
BRYANT CJ
1.This is an appeal by the mother, and cross-appeal by the father against parenting orders made by Carmody J on 15 March 2007. There is one child of the relationship, aged 4 years at date of trial and now 5 years old.
2.I have had the benefit of reading the reasons for judgment of May J and Finn J respectively. I agree with the conclusions reached by both of them that the mother’s appeal should be dismissed. I also agree with their reasoning in relation to the mother’s application to adduce further evidence and agree that there should be no order for costs in relation to the appeal or the cross-appeal. There is nothing in the judgment of either Finn J or May J with which I disagree and I simply wish to add some comments of my own.
3.The trial Judge discussed at some length, without apparent error, the standard of proof applicable to the allegations by the mother that the father had sexually abused the child and the unacceptable risk question (para 76 – 106). I agree with Finn J that it seems unnecessary for anything to be said beyond the broad general guidance given by the High Court in M and M (1988) FLC 91-979. That said however, the concept still frequently proves to be a difficult one to apply and the description by his Honour in paragraphs 78, 79 and 80 which are repeated below, in my view, provide a useful summary of what is required:
78.The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court's formulation in M v M [(1988) FLC 91-979; (1988) 166 CLR 69], where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered.
79.The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80.Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
4.In each case the facts will need to be carefully assessed, not only as to whether they enable the court to make a finding that sexual abuse has occurred (or not occurred) but also, if the court cannot make such a finding, as to whether the facts establish that there is an unacceptable risk to the child if the contact being sought, or contemplated by the court, were to occur. This is consistent with the comments of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 at 82,714:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
Finn J
Introduction
5.This is an appeal by the mother and cross appeal by the father against parenting orders made by Carmody J on 15 March 2007 in relation to the five year old child of the parties’ relationship.
6.Although in her notice of appeal the mother (who was unrepresented on the appeal as she was at the trial) stated that she appealed all orders made by Carmody J on 15 March 2007, her grounds of appeal would appear to be directed only to his Honour’s order (order 3) which provided for the child to spend unsupervised time with the father on an increasing basis until the position is reached whereby he spends equal time with each parent.
7.It was the mother’s position, as stated in paragraph 44 of her outline of argument for the purposes of the appeal, that “the time the child and father spend together be supervised, until the child is of an age to be able to protect himself from sexual abuse”.
8.The notice of cross appeal filed by the father (who was also unrepresented on the appeal and at trial) was stated to be against Order 2 of his Honour’s orders, which provided that until further order the child should live with the mother. The father’s sole ground of appeal was to the effect that although his Honour’s judgment was “seemingly correct” at the time it was given, it “has been proven to be clearly wrong due to the mother’s non-compliance with the court orders”.
9.However the father did not seek to support his cross appeal with an application to adduce any further evidence of events since the delivery of his Honour’s judgment. Thus there is no basis on which the cross appeal could succeed and it must be dismissed. If there is substance in the complaint which the father now makes, his remedy would seem to lie at first instance. This is particularly so in view of the liberty given to him in Order 9 of the trial Judge’s orders “…to re-list… within the next 12 months…”.
10.The history of this matter as set out by the trial Judge as well as a summary of his reasons for judgment are contained in judgment of May J and I need not repeat that material.
11.As the judgment of May J has recorded, the mother’s case at trial was that the father should have limited supervised contact (because of the asserted risk of sexual harm) whereas the father contended that the child should live with him (as a safeguard against emotional abuse at the mother’s hands).
12.As is also recorded, the orders made by Carmody J accorded with the submissions of the Independent Children’s Lawyer and reflected the recommendations made in a family report prepared by a psychologist, Mr R.
The mother’s grounds of appeal
(a) Asserted errors of fact
13.Five of the mother’s nine grounds of appeal assert errors of fact on the part of the trial Judge.
14.The first of the asserted errors of fact is to be found in paragraph 5 of his Honour’s judgment and is the subject of Ground 9 in the mother’s notice of appeal.
15.Paragraph 5 of his Honour’s judgment must be read with paragraph 4; those two paragraphs are as follows (emphasis added):
4.The father denies any indecent conduct and contends that the child should be ordered to live with him as a safeguard against ongoing emotional abuse at the mother’s hands and to ensure that he receives the benefit of having a meaningful relationship with both parents.
5. On his case the mother is intrinsically contact averse, has a history of non-compliance with court orders and is bent on destroying what little relationship he has been able to establish with his son by wilfully misconstruing patently improbable statements and giving normal childish actions an unwarranted sinister connotation. He also claims that the mothers admitted encouragement of the child to repeat false allegations against him to others not only distresses the child but has the purpose or effect of exacerbating the rift that has developed between them.
16.The mother’s assertion in Ground 9 in her notice of appeal is that his Honour “made an error in fact in finding that the mother is “contact adverse” at para 5 of his reasons… in light of the evidence before the court that the mother was adverse to unsupervised contact”.
17.However as is clear from the actual terms of paragraphs 4 and 5 of his reasons, his Honour was doing no more in those paragraphs than outlining the father’s case before him. His Honour was not making his own finding of fact. This ground of appeal is thus misconceived.
18.The next asserted error of fact is to be found in paragraph 30 of his Honour’s judgment which again must be read with the preceding paragraph:
29.The same centre also reports calm and relaxed supervised visits with receptive and responsive interactions for supervised visits during the period 9 September 2006 to 18 November 2006. The father played actively with his son, showed affection appropriately and was observed to be child focused throughout visits.
30. The child generally appeared comfortable and happy to be in close proximity and was usually well behaved. No signs of distress were detected.
19.By Ground 4 in her notice of appeal the mother claims:
4. That the trial Judge made an error in fact in finding at para 30 of his reasons for judgement [sic] that during supervised contact the child generally appeared comfortable and happy to be in close proximity (with the father) and showed no signs of distress, in light of the records of the centre.
20.In his written outline of argument, counsel for the Independent Children’s Lawyer was able to provide us with the references to the evidence which was before his Honour, and which would have enabled him to make the findings made in paragraph 30. Therefore this ground of appeal has no substance.
21.It is asserted in the mother’s first ground of appeal that his Honour’s findings in paragraph 68 of his reasons are erroneous given that they are inconsistent with findings made earlier in paragraph 19.
22.In paragraph 19 his Honour said:
19.On the 9 February 2006 the child disclosed to his pre-school group leader at the […] Child Care Centre that he had seen his father that day and he was angry because he “sucked my poo a long time ago”.
23.Then in paragraph 68 his Honour said:
68.The child makes no disclosures to anyone other than his mother or close family members. An opportunity to complain to both the police and departmental officers was not taken advantage of. There is no medical corroboration and the reported behaviours are equally consistent with innocent explanations.
24.While it is true that his Honour has omitted to refer in the first sentence of paragraph 68 to the disclosure to the pre-school group leader earlier recorded in paragraph 19, this could not, in my view, be said to be a material error which would warrant appellate interference with his Honour’s orders. This is because in the second sentence of paragraph 68, his Honour was clearly referring to the absence of any complaint to an investigating authority such as the police or the relevant child welfare department.
25.Finally with respect to asserted errors of fact, Grounds 2 and 3 as contained in the notice of appeal are both directed to paragraph 72 of his Honour’s judgment where he observed:
72. The child does not appear to display any odd behaviours at day-care or supervised contact when being observed by independent people including the family reporter.
26.In her submissions in support of Ground 3, the mother endeavoured to establish that there was evidence before his Honour which would have prevented his finding that the child “does not appear to display any odd behaviours at day-care”. While it may well be that the evidence on which the mother relies does cast doubt on the correctness of his Honour’s finding in paragraph 72, that finding is so general and the expression “odd behaviours” so subjective, that again this error would not, in my view, be sufficiently material to his Honour’s decision that it would warrant appellate interference with that decision.
27.There is then the mother’s further complaint in Ground 3 that the findings in paragraph 72 are not consistent with the following observation by his Honour in paragraph 37:
37.In his closing paragraph Mr R suggests a comprehensive psychological assessment of the child might be beneficial in identifying the causes of his disturbed behaviour and to help him through this difficult period of his life.
28.In my view any inconsistency between his Honour’s findings in paragraph 72 and the recommendations of the author of the family report recorded by his Honour in paragraph 37, if indeed any inconsistency does exist, would again not be sufficiently material to his Honour’s decision to warrant appellate interference with that decision.
29.It will be convenient next to consider the complaint contained in Ground 8 in the mother’s notice of appeal, being that his Honour “erred in taking a literal interpretation of the child’s disclosures at para 69 of his reasons for judgement [sic]”, as this complaint is also essentially directed to a finding of fact.
30.In paragraph 69 his Honour concluded:
69.Taken literally, the so called disclosures describe inherently unlikely behaviour on the part of a father. They do not suggest defined sexual abuse as much as a gross form of indecency. Interpreted non-literally they are meaningless. The mother seems to think that the statements are code for some form of oral sex but the child apparently has an above average vocabulary and is quite capable of being more aptly descriptive if he was really trying to convey something more.
31.In my view these conclusions were entirely open to his Honour, and thus could not be said to constitute appealable error.
32.Similarly in this context, it is convenient to consider Ground 7 in the mother’s notice of appeal whereby she asserts that his Honour “erred in placing no weight upon the evidence before the Court that the father had lied to the police, the Court and the Family Report writers”.
33.While there may have been evidence before the court on the basis of which his Honour could have concluded that the father had lied about certain matters, this ground of appeal could have no substance, in my view, unless his Honour had made a finding that the husband had in fact lied about a relevant matter and that his Honour had then failed to take that finding into account in reaching his ultimate decision; I do not understand that such a finding was made, and thus the ground has no substance.
(b) The trial Judge’s generalisation concerning the outcome of contact disputes
34.In paragraph 38 of his reasons, his Honour made the following comment (emphasis added):
38. It is increasingly rare these days for contact between a parent and his or her child to be terminated or restricted by court order. The reasons for this are found in the objects stated in pars 60B(1)(a), (c) and (d), the underlying principles in subsection 60B(2)(a) and (b) and primary consideration (a) in subsection 60CC(2). It is – and should be – difficult to make a case that a child spend no or limited time at all with a parent.
35.By Ground 5 of the grounds contained in her notice of appeal the mother asserts that his Honour erred by making what she rightly terms the “generalisation” contained in the first sentence of paragraph 38.
36.In her written outline of argument the mother submitted, correctly, that each case before the court must be determined on its own merits. She further submitted that the generalisation by his Honour in paragraph 38 indicated that he had pre-judged the present case.
37.When regard is had to the whole of his Honour’s reasons for judgment and also to the conduct of the case before his Honour as revealed by the transcript, it could not, in my view, be said that he had pre-judged the issue of contact between the father and the child.
38.Nevertheless the response of the mother, as a self-represented appellant, to the observation made by his Honour in the first sentence of paragraph 38, well demonstrates how careful a Judge should be when endeavouring to explain in his or her reasons for judgment, the legislation which governs the case in question. In my view, the legislation should as a general rule be permitted to speak for itself, although I acknowledge that there can be cases where a simple but accurate précis of the legislation may be appropriate. It is, however, important to avoid putting any gloss on the words of the legislation as the High Court warned this Court in De L v Director-General, NSW Department of Community Services & Anor (1996) FLC 92-706 at 83,453.
39.But as I have already indicated, I am not persuaded that the observation by his Honour in the first sentence of paragraph 38, can be said to have caused his discretion to have miscarried.
(c) The trial Judge’s approach to the sexual abuse allegations
40.By Ground 6 in her notice of appeal the mother asserts that is Honour:
…erred in his discretion in placing excessive weight on his concern not to brand the father an “incestuous homosexual paedophile” rather than focusing on the best interests of the child at para 56 of his reasons for judgement [sic].
41.The paragraph (paragraph 56) in his Honour’s reasons to which this ground of appeal is directed, is not, in my view, easy to understand. It appears in the context where his Honour had in paragraphs 49 to 54 set out a brief history of investigations by the Queensland Police and Department of Child Safety into sexual abuse allegations concerning this child. At the conclusion of that brief history, his Honour said (emphasis added):
55. In his dissenting judgment in K & B [(1994) FLC 92-478 at 80,972] Kay J warned of the ‘magnetising force’ of child abuse allegations and reminded trial judges how difficult it is for the accused party – usually the father – to prove that the alleged event did not occur (the so-called null hypothesis) because of the ever present possibility that it did.
56. Branding a father with the stigma of incestuous homosexual paedophilia is an extreme step and a conscious effort must be made not to be too uncritical or overly protective before taking it.
57.It is for this reason that the criminal law presumes innocence and requires the alleging party to displace that presumption by evidence that puts it beyond doubt. In a civil case, including family proceedings, the starting point is the assumption that fathers do not normally sexually abuse their children. That assumption will prevail unless the contrary is sufficiently and satisfactorily established.
42.His Honour then embarked (in paragraphs 58 to 74) on a relatively lengthy discussion of the standard of proof which is to be applied if a positive finding of past sexual abuse is to be made against a parent. Ultimately, however, his Honour concluded (emphasis added):
74.I accept the submissions advanced by Counsel for the Independent Child’s Lawyer that no positive finding of past abuse can legitimately be made in this case because of the unsatisfactory and insufficient nature of the evidence adduced to support it.
75.The allegation, therefore, remains unproven. That, technically, is the end of the court's inquiry. Exonerating the accused party is not part of the adjudicative function of this court. This, understandably, is often seen by aggrieved and indignant fathers looking for a declaration of innocence and restoration of their reputation as highly unsatisfactory. That, however, is the way it is. Allegations made in court proceedings are either proven or not. Innocence is never really at issue and there is rarely enough evidence to sustain a valid negative finding but, I very much doubt that the father has done anything untoward.
43.In her written submissions in support of the ground of appeal in question, the mother also challenged the observation made by his Honour in paragraph 57 that “the starting point is the assumption that fathers do not normally sexually abuse their children”. But being self-represented the mother was unable to develop her challenge to this observation or to the observations in paragraph 56 in any substantial way. Rather she concentrated her submissions on the father’s alleged past history of drug use and other criminal activities.
44.It would not therefore, in my opinion, be appropriate in this case to undertake any further critical analysis of those passages of his Honour’s reasons to which I have referred above (being paragraphs 55 to 75) where he discussed the standard of proof necessary to support a positive finding that sexual abuse has occurred in the past.
45.Although it has to be acknowledged that paragraph 56 is not easy to understand, and it would also have to be acknowledged that the “starting point” referred to in paragraph 57, is not, to say the least, a well-recognised starting point (although the assumption there referred to by his Honour is hopefully valid), nevertheless his Honour’s conclusion expressed in paragraph 74 and based as it is on the state of the evidence in the case, is sound. In view of that conclusion and its basis, this Court would not be justified in interfering with his Honour’s on the basis of his observations in paragraphs 56 and 57 to which the mother has drawn attention.
46.It would also not be appropriate to undertake any critical analysis of his Honour’s subsequent discussion of what he termed the “unacceptable risk” question (paragraphs 76 to 106) if only for the reason that the content of that discussion was not challenged by the mother save in one respect only, which as will be seen was also, unfortunately, misconceived.
47.That misconceived challenge was made by the mother to the following paragraph in his Honour’s discussion of the “unacceptable risk” question:
81.In N and S and the Separate Representative [(1996) FLC 92-655] the trial judge was unable to make a positive finding of past sexual abuse against the accused father because of competing innocent explanations and expert opinions to the contrary.
48.The mother’s complaint about that statement appears in her written outline (with reference to a ground of appeal which she nominated as “Ground of appeal 9”), when she said that “the trial Judge made an error of fact… when stating he was unable to make a positive finding of past sexual abuse because of expert opinions to the contrary”.
49.As was explained to the mother during the hearing of the appeal, his Honour was in paragraph 81 of his reasons referring to the facts of the case of N and S and the Separate Representative (supra) and not to the present case. Thus, that particular complaint by the mother has no substance.
50.Although, as I have already indicated, I do not consider it appropriate given the limited matters raised before us, to undertake any critical examination of his Honour’s approach to the issues of sexual abuse and unacceptable risk, I would observe that I have some difficulty in understanding why in this case anything further needed to be said beyond the broad general guidance given by the High Court nearly twenty years ago now in M and M (supra).
Conclusion
51.I thus agree with the Chief Justice and May J that the mother’s appeal should be dismissed. I also agree with their Honours’ reasoning in relation to the mother’s application to adduce further evidence. I agree that there should be no order for costs in relation to the appeal or the cross appeal.
May J
52.In a Notice of Appeal filed on 12 April 2007 the mother appealed against all the parenting orders made by Carmody J on 15 March 2007. The child, born […] 2002, and currently aged 5 years, lives with the mother and spends time with the father on a graduated timetable as provided by the orders to progress to an equal shared basis by April 2008. The appeal relates to orders made in relation to unsupervised time spent by the child with the father. It is the mother’s assertion that there is a risk of sexual harm to the child in spending time with the father on an unrestricted basis.
53.A Notice of Cross-Appeal was filed by the father on 8 May 2007 based on events which have occurred since the judgment in particular that the mother has failed to comply with the orders made by Carmody J on 15 March 2007. The father asks that the child live with him and spend time with the mother.
54.At the hearing of the appeal both parties were self-represented. The considerable pressures experienced by the parties in preparing their material without the assistance of legal representation needs to be appreciated.
55.The order subject to this appeal is as follows:
(1) All previous parenting orders be set aside;
(2)Until further order, the child, […] born […] 2002 live with the mother;
(3)The child spend time with the father at all reasonable time as agreed between the parties and in default of agreement as follows commencing 5 March 2007:
(a)(i) Until 31 May 2007 each alternate Saturday, commencing 3 March 2007 from 9.00 am to 5.00 pm
(ii)From 1 June 2007 to 31 August 2007, each alternate Saturday from 9.00 am to 5.00 pm and each Wednesday from 9.00 am to 5.00 pm
(iii)From 1 September 2007 to 31 December 2007, each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday and each Wednesday from 9.00 am to 5.00 pm
(iv)From 1 January 2008 to 31 March 2008, each alternate weekend from 5.00 pm Friday to 5.00 Sunday and each Wednesday from 9.00 am to 5.00 pm
(v)From 1 April 2008 and thereafter each alternate weekend from 5.00 pm Friday to 5.00 Wednesday and each other Wednesday from 9.00 am to Thursday 9.00 am
(vi)The provisions of this part of this order shall be suspended during school holiday periods commencing from the 2007/08 Christmas holiday period and shall thereafter resume as if the next weekend on which weekend time is to be spent was the first weekend following the holiday period.
(b)SPECIAL DAYS:
(i)The parent who has the care of [the child] on the night prior to his birthday shall retain the child until 12.00 noon on his birthday. The other parent shall have [the child] from 12.00 noon and, if [the child] would not ordinarily be in the care of that parent, shall return the child at 5.00 pm.
(ii)If it is not otherwise a day when [the child] is in her care, the mother will spend time with the child for four (4) hours, to be agreed, on the mother’s birthday…
(iii)If it is not otherwise a day when [the child] is in his care, the father will spend time with the child for four (4) hours, to be agreed, on the father’s birthday…
(iv)In 2007 and each alternate year thereafter the father shall spend time with the child from noon 24 December until 12.00 noon Christmas Day and the mother shall spend time with the child from 12.00 noon Christmas Day until 12.00 noon 26 December. In 2008 and each alternate year thereafter the mother shall spend time with the child from noon 24 December until 12.00 noon Christmas Day and the father shall spend time with the child from 12.00 noon Christmas Day until 12.00 noon 26 December
(v)If it is not otherwise a day when [the child] is in her care, the mother shall spend time with the child from 9.00 am to 5.00 pm on mother’s day
(vi)If it is not otherwise a day when [the child] is in his care, the father will spend time with the child from 9.00 am to 5.00 pm on father’s day.
(c)HOLIDAYS
(i)In the 2007 June/July school holiday period for Queensland [the child] shall live with the father for three consecutive days and two nights to be agreed between the parties and in default of agreement then from the second Monday of the holiday period to the second Wednesday of the holiday period and from 9.00 am on the first day to 5.00 pm on the third day
(ii)In the 2007 September/October school holiday period for Queensland [the child] shall live with the father for four consecutive days and three nights to be agreed between the parties and in default of agreement then from the second Monday of the holiday period to the second Thursday of the holiday period and from 9.00 am on the first day to 5.00 pm on the third day
(iii)In the 2007/08 Christmas school holiday period for Queensland [the child] shall live with the father for five days and four nights in every two week period to be agreed and in default of agreement then commencing on the first Monday after the school holiday period commences to the first Friday and thereafter in each alternate week of the holiday period and from 9.00 am on the first day of each period to 5.00 pm on the last day of such period
(iv)For each school holiday period thereafter, [the child] shall live with the father for half of each such period being the first half of such holidays that commence in the 2008 calendar year and each alternate year thereafter and the second half in holiday periods which commence in the 2009 calendar year and each alternate year thereafter.
(d)CHANGEOVERS
(a)All changeovers shall be effected at the McDonalds Restaurant at […].
(4)The parties have the parental responsibility for the child in accordance with the provisions of s61C of the Family Law Act 1975;
(5)Each party keep the other informed as to his or her residential address, residential telephone number and, where applicable, work telephone number, e-mail address and facsimile transmission numbers as well as mobile telephone numbers and shall notify the other of any change therein within forty eight (48) hours;
(6)Each party shall be at liberty to obtain any information concerning the child’s schooling (which term shall include day care or child care/kindergarten/pre-school, prep and school) including but not limited to reports, photographs and newsletters and other correspondence. The party seeking the ‘information’ shall pay all costs incurred for the supply thereof;
(7)(a) Each party shall be entitled to any and all information from any medical practitioner or other health professional and/or hospital which the child attends for the purposes of treatment.
(b)Except in the case of a medical emergency the child shall attend on one (1) only medical practitioner or medical practice/group to be nominated by the mother.
(8)The Independent Children’s’ Lawyer be discharged in (12) months at which time these orders are to become final;
(9)The father and Independent Children's Lawyer have liberty to relist on the giving of 5 days written notice to the mother within the next 12 months but not otherwise;
(10)All outstanding applications be otherwise dismissed;
(11)All applications be removed from the list of cases awaiting finalisation; and
(12)Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of persons to may assist parties adjust to and comply with an order are set out in the attached Annexure A and these particulars are included in these orders.
Application to Adduce Further Evidence
56.An application to adduce further evidence was filed by the mother on 4 July 2007 asking that the father provide a death certificate for his daughter, born on […] 1973, presumably on the basis that the certificate would then become evidence in the appeal. The mother asserts in her affidavit filed on 4 July 2007 that the father lied to the judge to shorten the trial by claiming that there had been a death in the family. We dealt with the application at the commencement of the hearing of the appeal and dismissed the application. I now give more comprehensive reasons for that dismissal.
57.The trial concluded late morning of the second day. It had been set down for three days. The evidence and submissions were completed prior to the notification of some problem in the father’s family. The issue of the respondent’s daughter’s death was not referred to until submissions of the Independent Children’s Lawyer in oblique terms and related to when orders about the child spending time with the father could commence. The Independent Children’s lawyer correctly submitted at the appeal that “[t]he issue did not delay the hearing, cause the hearing to be curtailed or in any other way affect the conduct of the hearing” (at page 2 of the written submissions of the ICL). The information was not relied on in relation to any issue at the trial nor did it affect the decision of the trial Judge. In short, it is irrelevant to the appeal.
58.We see no basis for allowing the application to adduce further evidence as the material sought to be adduced by the application reveals no evidence which, if accepted, would demonstrate that the order and judgment from which there is an appeal is erroneous. The High Court (per McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) FLC 92-828 at [109] explained:
One consideration in construing s93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
59.The father also applied to introduce evidence that the mother has not complied with the orders of Carmody J of 15 March 2007 and sought orders that the child reside with him. This will be considered later in this judgment.
Background
60.The parties, who never lived together began a relationship in late 2000 which ended in 2002. Since that time, the child has lived with the mother and spent largely supervised time with the father. As his Honour summarised the situation:
Past attempts to introduce unsupervised time have failed due initially to welfare concerns arising out of the fathers admitted heroin addiction but that is now under control and the only current impediment to unrestricted contact is that the asserted risk of sexual related harm to the child based on alleged disclosures and behaviours the mother interprets as suggestive of abuse by the father. (Paragraph 3)
61.The relevant history of this matter was set out by Carmody J commencing at paragraph 8 of his reasons, the bulk of which is not contentious.
8.The father had short day only contact once a week in the first nine (9) months or so of separation. He then had supervised contact at the […] Contact Centre under consent orders made 30 June 2004 pending the determination of his final application.
9.On 30 December 2004 he amended his final application for contact to add a claim for overnight on alternate weekends and mid-week every other week as well as half all NSW school holidays once the child started school.
10.Between September 2004 and February 2005 the father had a total of 24 hours of unsupervised contact.
11.Bell J made final orders on 20 October 2005 providing for the child to reside with the mother in Brisbane and to have time with the father alternating between [central coastal NSW] and Brisbane every second Saturday unless and until the father himself moved to Brisbane when time spend was to include Wednesdays and Fridays and every other Sunday up to April 2007 and then further increase to alternate weekends and one night during the week.
12.The child allegedly commented about the size of his father’s penis after the first session of unsupervised contact on the 22 October 2005. The mother also says that he attempted to penetrate his own anus with a screwdriver.
13.The mother consulted Dr [O] and contacted SCAN on 1 November 2005 but no physical examination was conducted.
14.After the second unsupervised visit on 1 November 2005 the child complained of not having an enjoyable time and informed the mother that his bottom hurt. The mother says the child’s behaviour became increasingly difficult. He was tearful and demanding and constantly asking to be carried and breastfed for comfort. He later started to throw and break things.
15.After the contact on the weekend on the 27 December 2005 the child told his mother that “daddy likes to taste my poo poo”.
16.He repeated the allegation “in an angry tone” on New Years Day in 2006 informing the mother that the father had said he wouldn’t do it again but she noticed growing levels of anger being exhibited by the child towards her.
17.The father moved to Brisbane on 15 January 2006. Over the next two weeks he is unable to contact the mother to negotiate to see the child and on the 19 January 2006 she advises the [local] contact centre that the child will not be spending anymore time with the father “for the moment”.
18.On 4 February 2006 the mother telephoned the father to suspend unsupervised visits because of what the child had told her the father had done. He responded by instituting contravention proceedings. This provoked the mother to seek a variation of the 2005 final orders to replace unsupervised contact with limited supervised contact centre visits.
19.On the 9 February 2006 the child disclosed to his pre-school group leader at the […] Child Care Centre that he had seen his father that day and he was angry because he “sucked my poo a long time ago”.
20.On 14 February 2006 the child disclosed to the mother’s daughter from a previous relationship, [R], that his “daddy is naughty” and tells her that he “tastes my poo poo” and hits him. These statements were recorded by [R] on her mobile phone.
21.The child made much the same “disclosure” to the maternal grandmother and has mentioned it frequently since then.
22.The mother says that after seeing the father for the first time since December 2005 for the purposes of family interviews with the family consultant, [Mr R], in June 2006 the child’s’ statements and behaviours became more sexualised and aggressive again.
23.Contact centre contact re-commenced on 17 July 2006 after the release of the family report.
24.The first two were uneventful but on the third visit viz., 8 July 2006, the facilitator overheard the child directly accuse the father of eating his poo. The father responded by asking what the child meant and who had told him that.
25.Further interim orders for unsupervised contact twice a week and on alternate Sundays were made on 24 November 2006. The mother was restrained from further investigating child sexual abuse allegations or making notifications to police or child safety officer without first advising the Independent Children’s Lawyer.
26.Despite the interim orders there were a maximum of seven visits for a total of six hours between the 29 November 2006 and 17 December 2006. There have been no unsupervised visits since then.
The father filed further contact contravention complaints on the 29 November 2006, 8 December 2006 and 24 January 2007.
62.The mother’s case was that the father should have limited supervised contact whereas:
The father denies any indecent conduct and contends that the child should be ordered to live with him as a safeguard against ongoing emotional abuse at the mother’s hands and to ensure that he receives the benefit of having a meaningful relationship with both parents. (Original emphasis) (Paragraph 4)
The orders made by the trial Judge reflected recommendations made in the Family Consultant’s report and accorded with the submissions of the Independent Children’s Lawyer.
Grounds of Appeal
63.The mother’s Notice of Appeal filed on 12 April 2007 contained the following grounds:
1.The trial judge made an error in fact in his findings at para 68 of his reasons for judgement that the child made no disclosures to anyone other than his mother or close family members in light of his finding at para 19 of his reasons for judgement that on 9 February 2006 the child made a disclosure to his pre-school group leader.
2.That the trial Judge made an error in fact in his findings at paragraph 72 of his reasons for judgement that the child does not appear to display any odd behaviours when observed by the family reporter, in light of his findings at para 37 of his reasons for judgement that the report writer Mr [R] suggests a comprehensive psychological assessment of the child might be beneficial in identifying the causes of his disturbed behaviour and to help him through this difficult period of his life.
3.That the trial Judge made an error in fact in finding at para 72 of his reasons for judgement that the child does not appear to display any odd behaviours at day-care in light of reports from child care centres.
4.That the trial Judge made an error in fact in finding at para 30 of his reasons for judgement that during supervised contact the child generally appeared comfortable and happy to be in close proximity (with the father) and showed no signs of distress, in light of the records of the centre.
5.That the trial Judge erred in making a generalisation in para 38 of his reasons for judgement that it is increasingly rare these days for contact between a parent and his or her child to be terminated or restricted by court order’.
6.That the trial Judge erred in his discretion in placing excessive weight on his concern not to brand the father an “incestuous homosexual paedophile” rather than focusing on the best interests of the child at para 56 of his reasons for judgement.
7.That the trial Judge erred in placing no weight upon the evidence before the Court that the father had lied to the police, the Court and the Family Report writers.
8.That the trial Judge erred in taking a literal interpretation of the child’s disclosures at para 69 of his reasons for judgement.
9.That the trial Judge made an error in fact in finding that the mother is “contact adverse” at para 5 of his reasons for judgement in light of the evidence before the court that the mother was adverse to unsupervised contact.
64.No orders were sought by the mother in her Notice of Appeal, but in her written submissions the mother asks that the time the father and child have together “be supervised, until the child is of an age to be able to protect himself from sexual abuse”.
The Judgment
65.His Honour gave detailed reasons for judgment, in which he concluded that increasing periods of unsupervised overnight time be gradually introduced over a twelve month period.
66.His Honour’s judgment was divided into several parts, which explored in detail the relevant history, the principles relating to parenting arrangements, the issue of past abuse, the assessment of risk to the child, and residence and parental responsibility.
67.The allegations of sexual abuse of the child by the father were referred to in considerable detail commencing at paragraphs 49-54 of his Honours reasons and then analysed by him commencing at paragraph 66:
The issue of past abuse
49.The suspected sexual abuse was reported to the police on 1 January 2006.
50.The child was interviewed but made no disclosures or complaints about the father. The father denied any wrongdoing under questioning.
51.After completing the interview and observing displayed behaviours by the child, investigating police concluded that no sexual related offences could be corroborated or substantiated. The conduct reported by the mother could have been explained as normal developmental curiosity. The police rejected the mother’s interpretation of the child’s statements and behaviours as pure conjecture and “perhaps unjustified”.
52.It is noted, however, that the Queensland Police Service re-activated their investigation after the child’s disclosure to his half sister on the 21 March 2006.
53.The Department of Child Safety was also notified. It concluded that the information provided did not meet the definition of sexual abuse or indicate that the child is likely to have been sexually harmed by the father or anyone else.
54.According to departmental records the mother was sexually abused as a child herself.
…
66.Substantiation of the abuse allegations against the father in this case turns entirely on the credibility and reliability of the reported disclosures.
67.Although admissible despite their hearsay character these indirect statements have to be closely examined and handled with extreme care because they are made by a very young child with unknown motives to a party whose interests conflict sharply with those of the suspected parent. They have been untested by cross-examination and are unsupported by any independent evidence logistically capable of confirming the fact of abuse or identifying the father, who strenuously denies the allegation, as the culprit.
68.The child makes no disclosures to anyone other than his mother or close family members. An opportunity to complain to both the police and departmental officers was not taken advantage of. There is no medical corroboration and the reported behaviours are equally consistent with innocent explanations.
69.Taken literally, the so called disclosures describe inherently unlikely behaviour on the part of the father. They do not suggest defined sexual abuse as much as a gross form of indecency. Interpreted non-literally they are meaningless. The mother seems to think that the statements are code for some form of oral sex but the child apparently has an above average vocabulary and is quite capable of being more aptly descriptive if he was really trying to convey something more.
70.There is no suggestion that the father displays any worrying personality traits or other behaviours that might suggest paraphiliac tendencies. He has had little unsupervised time with the child and it is unlikely, in my view, that he would have used what limited opportunity he has had to abuse him especially in the context of inextricable family litigation involving such a vigilant and suspicious mother who has already raised the spectre of sexual abuse as an issue in the proceedings and was clearly on the lookout for any sign of confirmation.
71.For the father to commit these gross acts of indecency in such circumstances would be stunningly brazen and ultimately counter-productive. He was plainly aware that he is under scrutiny and that any hint of abuse on contact may not only lead to permanent denial of access but criminal charges as well.
72.The child does not appear to display any odd behaviours at day-care or supervised contact when being observed by independent people including the family reporter.
68.It is noted that the finding of facts in paragraph 72 of his Honour’s reasons is contrary to his Honour’s reasons in paragraph 19, which constitutes ground 1 of the mother’s appeal. This will be considered in the mother’s submissions.
69.His Honour at paragraph 74 accepted the submissions advanced by counsel for the Independent Children’s Lawyer that “no positive finding of past abuse can legitimately be made out in this case because of the unsatisfactory and insufficient nature of the evidence adduced to support it”. His Honour then said at paragraph 75:
75.The allegation, therefore, remains unproven. That, technically, is the end of the court’s inquiry. Exonerating the accused party is not part of the adjudicative function of this court. This, understandably, is often seen by aggrieved and indignant fathers looking for a declaration of innocence and restoration of their reputation as highly unsatisfactory. That, however, is the way it is. Allegations made in court proceedings are either proven or not. Innocence is never really at issue and there is rarely enough evidence to sustain a valid negative finding, but I very much doubt that the father had done anything untoward.
70.In considering the question of “unacceptable risk”, his Honour at paragraph 77 referred to M v M (1988) 166 CLR 69 at 77 “whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk”. After discussing a number of Australian and English authorities his Honour’s conclusions commenced at paragraph 103 of the judgment:
103.There is, as I have already concluded, no reasonable ground for believing that the father has sexually abused the child in the past and no other event or circumstance suggestive of an unacceptable risk of physical harm in allowing the child to have unsupervised time with the father is apparent to me. Nor am I persuaded that there is a real chance of emotional or psychological danger to the child as a result of having unsupervised time with the father.
104.However, even when there is no unacceptable risk of relevant harm supervised contact can still be ordered where, as here, a parent wrongly but implacably not unreasonably believes that sexual abuse has occurred. In S and P [(1990) FLC 92-159], for instance, the Full Court found it appropriate for the trial Judge to have acted on the wife’s attitudes and concerns in considering whether or not ‘access’ would be to the ultimate benefit of the child. Strictly monitored time can act to prevent disruption to the parent/child relationship, while protecting the accused parent from further suspicion or accusation and at the same time allay the fears of the other parent.
105. The mother’s views are thus a factor that need to be brought into the balance in determining whether the overall welfare of the child will be best advanced by promoting unsupervised contact with the father. Without any expert evidence to assist the way in which the mother may be affected as to the manner in which the mother may be affected in her capacity to care for the child if contact is continued it would be inappropriate to draw a conclusion that she might be so overborne as to be unable to function adequately as principal parent: [F and F [2005] Fam CA 394 at paragraph 65].
106.But even if it was otherwise appropriate long term supervised contact would not serve any useful purpose here because of the mother’s deep dissatisfaction with the level of vigilance offered at the local contact centres and the non-availability of any other appropriate supervisor.
71.His Honour then moved to the issues relating to residence and parental responsibility commencing at paragraph 107. Those paragraphs relevant to the appeal are reproduced below.
111.The child would clearly benefit from having a meaningful relationship with his father. They currently don’t have one and they need to spend as much quality [sic] together as practicable in the circumstances. There are no protective needs limiting how much or what sort of time they spend together. Supervised contact may, however, be a necessary first step towards the reintroduction of normal overnight contact.
112.Both parents can adequately provide for all relevant needs of the child but the mother is clearly more experienced. The child is closely attached to the mother and obviously draws emotional comfort from her. The relationship he has with the father would need to be on much firmer ground before I will be confident that he could provide the same level of overall parenting and emotional support to the child. However, the mother has shown a tendency in the past to disregard or underestimate the child’s emotional and developmental needs and the benefit he would receive from building and strengthening a relationship with his father. It would be emotionally abusive for her in light of the findings to continue to allow the child to believe that his father posed a risk of abuse to him or that he has previously molested him. Counselling a child for emotional damage he has not suffered is likely to have a detrimental effect on this sort of emotional development and stability.
113. I am mindful of the father’s reasonable concerns that the mothers response to his so called disclosures and contact adverse attitude and past non-compliance but I think these things can be kept in check by less drastic means. She has promised to obey the orders I make and I think granting the father liberty to apply and retaining the services of the Independent Children’s Lawyer for the next 12 months or so will sufficiently protect his interests and the child’s rights in relation to contact. He also has the option of taking contravention proceedings even though – as he himself points out – this can sometimes be a long drawn out and ultimately ineffective procedure.
114.There is a serious question mark over the mother’s willingness and ability to encourage and facilitate a close and continuing relationship between the child and the father. Her past history suggests that she will struggle with this. Her attitude to contact is not entirely appropriate and is incompatible with her responsibility to encourage the establishment and maintenance of a meaningful relationship between the father and the child. I am willing at this stage to take her word that she will accept my findings on the sexual abuse question and comply with the orders even if she did not do so in respect of those made at interim proceedings. She did seem to me to be genuine when questioned about this and I believe her when she says that she has received strong advice which she accepts to comply.
115.If my faith in her proves to be misplaced then of course she runs the very real risk of a reversal of residence application against her succeeding in the future.
116.Having regard to the limited unsupervised time he has spent with his father since separation, the tenuous nature of the relationship and the damage done to the parental relationship by the sexual abuse allegations and non-compliance with contact orders I think the overall best interests of this child will be best promoted by the graduated and increasing levels of unsupervised time recommended by the family reporter and reflected in the proposed orders of the Independent Child’s Lawyer.
72.His Honour left the issue of parental responsibility to be governed by s61C of the Act in light of the conflict evident between the parties.
Appellate Principles
73.The principles which govern an appeal of this nature, being an appeal against discretionary orders, are well known and need not be repeated in the context of this appeal; see House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513.
74.In De Winter & De Winter (1979) FLC 90-605 the High Court held that if a trial Judge has made a mistake of fact, the judgment will not be upheld merely because the result was within the range of discretion. However, in such circumstances, the judgment may be upheld if, notwithstanding the mistake of fact the result is plainly right.
75.Having referred to the High Courts judgment in House v The King (supra) at pp. 504-5, Gibbs J then said at 78,091-092:
It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v Storie (1945) 80 CLR 597, both Latham CJ at p.600 and Rich J at p.604, cited from the judgment of Viscount Simon LC in Blunt v Blunt (1943) AC 517 at p.526:
“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials…”.
There are many other authorities, from Young v Thomas (1892) 2 Ch. 134 at p.137, to Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621, at p.627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which was proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of the foundations.
76.The appellant argues that the trial Judge made a number of factual errors and that this caused the decision to be incorrect. The first question is whether the error was material and then whether the error affected the conclusion. If so, the question then becomes whether the result is so “plainly right” that the decision can be allowed to stand.
77.In analysing the factual error in De Winter & De Winter (supra) Gibbs J expressed the position ultimately to be this at p. 78,092:
I regard the question whether the errors formed a determining factor in the result in the present case is by no means easy of solution. … His final decision depended upon that opinion. And although that decision was open, it was not inevitable.… As I have said, however, the members of the Full Court, apart from Evatt CJ., were content to take the view that the decision of the learned primary judge was within the range of his discretion. I have already said that I agree with that view, but it does not alter the fact that the discretion was exercised on a wrong basis.
For those reasons I have reached the conclusion that the order of the learned primary judge should not be allowed to stand, and that there should be a re-hearing of the respondent’s application. I would allow the appeal.
Further Aickin J said at 78,099:
I have had the advantage of reading the reasons for judgment prepared by Gibbs J. with which I am in complete agreement. I would add only the comment that the Full Court of the Family Court failed to advert to the significance that the unsupportable finding of fraudulent misrepresentation must have had on the trial judge’s view as to the appellant’s credibility. It was not sufficient to say, as they did, that the issue in respect of which that finding was made was of minimal relevance and that the document the signature of which the trial judge found to have been procured by fraudulent misrepresentation did not have any real significance in the overall decision. This merely diverts attention from the effect of a finding not merely erroneous but not supported by the evidence.
Submissions
78.In essence there were two distinct areas of argument in this appeal. First that his Honour made mistakes in relation to the evidence and secondly, that there are errors in the exercise of discretion, particularly being matters of weight given to certain parts of the evidence. Ground 5 might be regarded as an error of law and I will therefore deal with that separately.
(a) The Appellant’s Submissions
79.I would mention that the grounds contained in the appeal book and those in the written submissions of the appellant do not match. For example, the submissions under Appeal 2 are actually Ground 4. The submissions under Appeal 3 are Grounds 2 and 3 and Ground of Appeal 4 in the written submissions is Ground of Appeal 5 whereas what is said to be Ground of Appeal 5 is 6 and Ground of Appeal 6 is 8. The Ground of Appeal in the written submissions which was said to be 8 is Ground 9 in the Notice of Appeal and what is said to be Ground of Appeal 9 did not appear in the Notice of Appeal. In any event, I will deal with the mother’s submissions under the headings being Mistake of Fact including Grounds 1 to 4, 8 and 9 in the Notice of Appeal. Then Ground 5 and finally discretionary matters contained in Ground 6 and 7.
a. Mistake of Fact
80.Although I have already referred to a number of paragraphs of his Honour’s judgment it is useful for the purpose of the appellant’s argument to repeat those paragraphs about which there is a particular complaint. In Ground 1 it is asserted that there is a conflict between what his Honour said in paragraph 68 and paragraph 19.
19.On the 9 February 2006 the child disclosed to his pre-school group leader at the [...] Child Care Centre that he had seen his father that day and he was angry because he “sucked my poo a long time ago”.
…
68.The child makes no disclosures to anyone other than his mother or close family members. An opportunity to complain to both the police and departmental officers was not taken advantage of. There is no medical corroboration and the reported behaviours are equally consistent with innocent explanations.
81.The information from the [...] Child Care Centre was attached to an affidavit of the mother filed 27 February 2007 (Vol 2 Appeal Book 163). The note from the child care centre dated 9 February 2007 recorded an occasion when the children were having a “sleep time”:
[The child] was shouting inside the room. At first I ignored his shouting behaviour. However his voice was getting louder and louder. I went beside his bed and asked if I could cuddle him. He sat on his bed and cuddled me tightly. He said, “I’m angry” When I asked him why he said “I saw my daddy today. I’m angry coz he sucked my poo a long time ago”. I thanked [the child] for sharing his feelings and he cuddled me again. (Vol 2 Appeal Book 164)
82.In addition reference is made to paragraph 50 of the reasons where his Honour said:
50.The child was interviewed but made no disclosures or complaints about the father. The father denied any wrong doing under questioning.
This is a reference to the child being interviewed by the police, the mother’s allegations being reported on 1 January 2006. It is the mother’s contention that his Honour has mistaken the evidence because at the interview on 2 January 2006 the child said he “did not like” his father but could not say why. The police report is attached to the affidavit of the father filed 19 June 2006. (Vol 1 Appeal Book 99)
83.In addition, records from the Contact Centre show that on 8 July 2006 it was noted that the child had said to his father that he “eats his poo”. This was said on two occasions. The father’s response was “What do you mean? Who told you that?” It was reported that on this occasion the child was hyperactive.
84.On the following visit the child apparently said “You eat my poo” to his father. The father responded by saying “No I don’t”.
85.It is also submitted that his Honour made an error of fact in his finding at paragraph 30 when his Honour said:
30.The child generally appeared comfortable and happy to be in close proximity and was usually well behaved. No signs of distress were detected.
86.This part of the judgment refers to observations of the child at the Contact Centre South of Brisbane. The mother’s submissions were that subpoenaed records show that the child was not comfortable and on one visit in particular the child refused to interact with the father at all preferring to play on his own. The records from the Centre were summarised in a report to the Independent Children’s Lawyer on 1 September 2006. (Vol 2 Appeal Book 97) Certainly the observations of the child with the father on a number of occasions included a reference to the child being comfortable with physical proximity with the father. In paragraph 16 of that report the following is recorded:
16.During the third visit, on 8/7/06, the facilitator described [the child] as being intermittently hyperactive, and at two points during the visit, [the child] made remarks to his father of “You eat my poo”. The facilitator, [S], noted that [the child] did not appear or sound distressed when he said this, and continued to play. [Mr Baker] said “Who told you that?” What do you mean?” [the child] did not respond. The facilitator told [Ms Lindsay] about this at the end of the visit, and also that [the child] had fallen during the visit, hitting his head. [Ms Lindsay] advised that [the child] had made a disclosure to the mother on the way to the contact centre. No details of the disclosure were provided. [Ms Lindsay] also said that at the end of the last visit, while leaving, [the child] told her that Daddy’s good now”. This was not heard by staff.
87.It was noted on the next visit 22 July 2006 that the child “appeared comfortable in his interactions with his father during the visit that he was smiling, laughing, playing in an animated way, and in close physical proximity to Mr [Baker]”.
88.On the next occasion, 4 August 2006 it was recorded that:
b.[The child] appeared comfortable with his father, at one point putting his arms up, indicating that he wanted [Mr Baker] to pick him up. While they were playing with play-doh together, [the child] said of the dinosaur picture that it was “poo-ing”. [the child] then said “You eat my poo, Daddy”. [Mr Baker] responded “No I don’t. [the child] said “I know, that’s what I told Mummy. [Mr Baker] said “I know you did”. The conversation did not continue further. [the child] continued to play and appeared calm and happy. [Mr Baker] made a comment about [the child] possibly being able to go over to his house to go swimming in the pool, the following weekend. “id [sic] Mummy lets you”. The facilitator reminded [Mr Baker] that such suggestions were outside stated service guidelines.
89.However, on 12 August 2006 it was reported that the child was distressed on arrival and said that he did not want to be at the centre that day. After the father arrived the child was saying that he wanted his mother and then seemed to settle and appeared quite comfortable with his father and was smiling and laughing. When it was time for the father to leave the child screamed “No I don’t want you to go”.
90.On the next visit on 26 August 2006 it was recorded:
e.The last visit took place on 26 August 2006. There were no separation difficulties. [The child] asked the facilitator “Where’s my Daddy?” and then took her hand, saying “Let’s see if he is downstairs”. As soon as [Mr Baker] arrived, [the child] started looking through his bag for any gifts. He appeared happy throughout the visit, sitting closely beside [Mr Baker], but when [Mr Baker] picked him up at the end of the visit to say goodbye, and gave a small kiss on the cheek, [the child] started kicking his legs saying “No! I don’t want to. He then ran into the other room and said “I want my Mum” and hid himself behind the couch. [Mr Baker] touched him on the head and said goodbye, and [the child] screamed a second time. After [Mr Baker] left, [the child] played happily and when [Ms Lindsay] arrive [sic], showed her his new car saying “Look at what my Daddy gave me, sparky. I love Sparky (name of car). [The child] then asked facilitator if [the child] had been ‘okay’ as he had been a bit tired on arrival, and had eaten lots of party food.
91.It is complained that an error of fact was made in paragraph 72 of the judgment:
72.The child does not appear to display any odd behaviours at day-care or supervised contact when being observed by independent people including the family reporter.
92.It is the mother’s submission that in coming to this conclusion his Honour was wrong in view of the evidence before him. The mother referred to a report from the Child Care Centre North of Brisbane being Annexure “c” to her affidavit filed 16 February 2007. The report annexed to the mother’s affidavit and marked Annexure “c” cannot immediately be identified as being from the Child Care Centre North of Brisbane nor does it refer to any behaviour of the child to another. It does record that on 5 November 2004 the mother made a number of allegations about the father and remarked that “she could see where [Mr Baker] was going with this and that if he was given an inch that he would be wanting more contact and that she was not happy about [Mr Baker] seeing [the child] any more than he already is”. Annexure “e” to the affidavit is a record of events on 26 July 2006 and is likely to be the document to which she refers. The following is recorded:
Observation
[The child] was rolling on the mat with A.M as some of the children were dancing on the mat. A.M was on his hands and knees, when [the child] climbed up on top of him from behind. A.M then tried to stand and [the child] got off. He then tried to climb back up on top of A.M and A.M moved forward trying to get [the child] to hop off. [The child] then slid down A.M's back between his legs and pulled A.M pants and underwear down from behind exposing his body. Carer then gently redirected them to play somewhere else.
Professional comments
[The child] has developed a positive relationship with another child. He has not yet developed the concept of personal space as the child tries to move away as he doesn’t want [the child] to be climbing on to him and [the child] continues the behaviour [sic].
Follow up:
·Have discussion about own personal space.
·Role play ways of telling each other they are invading your personal space.
93.The mother also submitted that the information from the same Centre showed that [the child] had fears about sitting on the toilet. Annexure “f” to the mother’s affidavit is a document dated 26 June 2006 by J H and says:
I am writing in regards to [the child] Lindsay. I was his teacher in 2005 in the pre-kindy room.
During toilet training, we noticed that [the child] appeared scared to sit on the toilet, and would only sit there if we remained with him. We would sing him a song, letting him know that he could hop off when it finished.
During these times, he would appear very anxious, as he gripped the sides of the toilet and looked intently at us (Myself or Miss T – assistant). He would become upset if we moved away.
He gradually eased into the toilet training. We were slowly able to do other things in the bathroom while he was going to the toilet, and the he eventually succeeded in sitting on the toilet comfortably, and he was trained soon after.
94.Reference was made to the circumstances on 12 August 2006 at the […] Contact Centre to which reference has already been made in paragraph 36 of this judgment.
95.It was complained that the person who had facilitated most of the contact was not available for cross examination and that the evidence of the Contact Centre was provided by a person who was not present at any supervised contact visits or changeovers and by [M B] who had been present on only one supervised contact. The child attended the contact centre from July 2006 to February 2007.
96.In relation to the child’s behaviour the appellant also referred to documents from the [...] Child Contact Centre where it is recorded that the child has been violent towards staff members. In Annexure “g” to the mother’s affidavit filed 16 February 2007 it is recorded that on the morning of 11 February 2007 the child was asked to sit still while eating and when he was requested to leave the table he hit the teacher on the face.
97.It is further recorded on 12 January 2007 as follows:
It appears that [the child] refused to listen to his educators words. He kicked and he shouted to show his disapproval.
98.Further “odd behaviour” it is submitted that his Honour ought to have taken into account was evidence of the maternal grandmother which included him attempting to insert a screwdriver into his anus. This evidence is contained in the affidavits of Mrs Lindsay filed on 4 August 2006 and 19 December 2006. In the affidavit filed by leave on 4 August 2006 the grandmother explained that between June 2005 and December 2005 her daughter and grandson were living with her. At paragraph 4 of her affidavit she said as follows:
4.On two occasions in October of 2005 I witnessed [the child] attempting to insert a screw driver into his anus. I told [Ms Lindsay] about this behaviour and she saw it to and immediately stopped [the child] from what he was doing. …
Further
6.On Saturday 8 July 2006 while driving to the Contact Centre with [the child] and [Ms Lindsay], [the child] said to me “My daddy eats my poo”.
99.Another example of “odd behaviour” in relation to the child as submitted by the appellant is that the mother had recorded that the child had resumed soiling his nappies after contact and continued to do so until he was almost 4 years old. The mother referred to this at paragraph 29 in her affidavit filed 16 February 2007 and told Mr R the report writer.
100.Each of the matters about which the mother highlights as mistaking the evidence in coming to the conclusions to which his Honour came were referred to in the second report of Mr R in particular at paragraph 5.3. (Appeal Book p.207)
101.To some extent the mother relies on Mr R’s second report to demonstrate that it could not have been concluded that the child does not appear to display any odd behaviours at day care or supervised contact when observed by independent people including the family reporter. In paragraph 6.3 of the second report dated 26 February 2007 Mr R recorded:
6.3.1At the beginning of the play session with his father, [the child] avoided eye contact and did not acknowledge his father or interact with him in any way. He instead went immediately to a section of the room well away from where the father was sitting and commenced playing by himself behind a chair with his back towards his father. [The child] appeared to be attempting to avoid his father altogether.
6.3.2[Mr Baker] seemed to be unsure what to do about the situation, but he remained seated and appeared to carefully consider how he would manage it. He spoke quietly to [the child] and asked him a few questions, some of which [the child] answered. The father then left his chair and gradually moved closer to [the child] and commenced engaging in play with him.
6.3.3[The child] appeared to eventually relax, seemed more comfortable with his father being in close proximity to him and responded more freely to the father’s verbal interactions. A little later, [the child] initiated some verbal interactions with the father and even occasionally had eye contact with him.
6.3.4Apart from [the child]’s initial avoidance behaviour with his father, he did not display any dysfunctional or unusual behaviour during the play session and continued to play quietly with increasing comfort at being in the presence of his father.
6.3.5[Mr Baker] displayed some positive parenting skills in being able to manage the situation fairly effectively and he established some rapport with the child. However, generally, [the child] did appear to be less comfortable with his father than he was during the observed session with the father for the first family report.
102.In paragraph 8 of that report Mr R provided his opinion:
8.2.2In respect to the allegations of sexual abuse, the report writer does not see it as his role to determine whether or not sexual abuse has occurred. However, it is noted that most of the behaviours and comments allegedly made by the child as reported by the mother to be indicators of sexual abuse (such as his seemingly obsessive behaviour related to comments about eating faeces, together with severe tantrums, and references to the penis sizes) are not necessarily indicators, or even strong indicators, of sexual abuse, and may be caused by a variety of other factors.
…
8.2.4It is difficult to interpret the meaning of the apparent deterioration in the interaction between the father and child as observed in the play session for this report. However, it is noted that most interactions between the father and child that have been recorded by Contact Centre staff have been very positive. It should also be noted that the avoidant and reserved behaviours displayed by [the child] in the observed play session for this report are not uncommon in situations where there is significant conflict between the parents and where the child is aware of senses that one or other parent is not comfortable with the child’s contact with the other parent.
…
8.2.9Should the mother not be able to cooperate with such a regiment as suggested in 8.2.8, then the Court would need to consider an order allowing the father to list the matter for urgent hearing if there is an unexplained non-attendance by the child to spend pre-arranged time with the father on, say, two occasions.
8.2.10In any event, some of the subject child’s behaviours as reported by the mother, appear indicative of quite disturbed behaviour in many respects (whether caused by sexual abuse or not) and it is my opinion that a comprehensive psychological assessment of the child may be beneficial in identifying specific problems and developing behaviour management strategies to assist both parents in helping the child through this difficult period in his life.
103.Although in the appellant’s written submissions it is described as Ground of Appeal 4, her next submission was in relation to Ground 5. It is appropriate for reasons I have already stated to deal with grounds directed to his Honour mistaking the evidence together and therefore Ground 8 and 9 will next be dealt with, they appear in the appellant’s written submissions under the heading Ground 6 and 8.
104.In Ground 8 it was complained that the trial Judge made an error in taking a literal interpretation of the child’s disclosures at paragraph 69 of his reasons for judgment:
69.Taken literally, the so called disclosures describe inherently unlikely behaviour on the part of a father. They do not suggest defined sexual abuse as much as a gross form of indecency. Interpreted non-literally they are meaningless. The mother seems to think that the statements are code for some form of oral sex but the child apparently has an above average vocabulary and is quite capable of being more aptly descriptive if he was really trying to convey something more.
105.It was submitted that the Judge was wrong when he “discounted the appellant’s argument that the child is referring to an act of oral sex without knowing the adult terminology”. It is certainly correct that the child has said various things and that the father does not dispute that the child may have said them however, I do not accept as the appellant wishes to contend that the trial Judge placed no weight on the disclosures made by the child.
106.In Ground 9 the appellant complains that it is an error to find that the mother is “contact adverse” in the light of the evidence that the mother was adverse to unsupervised contact only. One of the difficulties with this submission is that paragraph 5 to which the appellant refers is not a finding made by his Honour but rather a reference to what the father’s case was. The trial Judge at paragraph 73 said “It is unlikely that the mother manufactured the disclosures for her own purposes”. Further it is quite clear at the end of his Honours judgment in particular paragraph 113 that he was relying on the mother’s evidence that she would provide contact.
107.Ground 5 needs to be dealt with discretely. In this the mother submitted that the trial Judge had erred in making what she described as a generalisation in paragraph 38 of his reasons which were as follows:
38.It is increasingly rare these days for contact between a parent and his or her child to be terminated or restricted by court order. The reasons for this are found in the objects stated in pars 60B(1)(a), (c) and (d), the underlying principles in subsection 60B(2)(a) and (b) and primary consideration (a) in subsection 60CC(2). It is – and should be – difficult to make a case that a child spend no or limited time at all with a parent
108.It is certainly correct as the appellant submits that each case must be determined on the merits of that case and that orders are frequently made which provide for supervision of time spent with a parent. It is also correct that this Court gives priority to the need to protect a child from physical or psychological harm and that the paramount issue to be decided is always whether the making of an order is in the best interests of the child. Even if his Honour gave the wrong impression and made a statement contrary to the Act in any event it could not be said that this remark had any bearing on his Honour’s ultimate decision.
109.Grounds 6 and 7 need to be considered together as they raise issues as to weight given to the evidence and the exercise of his Honour’s discretion generally. In Ground 6 it was said:
6.That the trial Judge erred in his discretion in placing excessive weight on his concern not to brand the father an “incestuous homosexual paedophile” rather than focusing on the best interest of the child at para 56 of his reasons for judgement.
110.This ground emanates from paragraph 56 of the judgment which contains the following:
56.Branding a father with the stigma of incestuous homosexual paedophilia is an extreme step and a conscious effort must be made not to be too uncritical or overly protective before taking it
111.It is submitted that in saying this his Honour failed to consider the need to protect the child from physical or psychological harm and together with paragraph 57 suggests that “the starting point is the assumption that father’s do not normally sexual abuse their children”. It was therefore submitted by the appellant that the Judge did not place sufficient weight on the history of this father being a long term heroin user and other matters of credit raised by her against him in the trial. To some extent the following ground and submission are connected.
112.In Ground 7 the appellant argued that the trial Judge made an error in placing no weight on the evidence before the Court that the father had lied to the police, the Court and the Family Report writers. The alleged lies included the father telling the police that the child had delayed communication skills whereas in a previous affidavit he said the child had a good vocabulary. The mother drew our attention to other evidence that the child had good communication skills from the Family Report and the Child Care Centre.
113.The second alleged lie is in relation to the father’s heroin use during his relationship with the mother. In the father’s affidavit he denies using heroin during the mother’s pregnancy but had also said in his affidavit that throughout the relationship he had used heroin on and off. The difficulty seems to be that the father was admitting using heroin early into the mother’s pregnancy however, their relationship then largely ceased.
114.The mother was also concerned about the evidence in relation to the father wanting her to have an abortion. She draws our attention to the hand written letter from the father attached to her affidavit. I do not conclude that in any of these matters his Honour ought to have made a credit finding against the father which would have influenced in some way the orders he made as to the time the child was to spend with the father.
115.We heard oral submissions from the Independent Children’s Lawyer prior to the respondent and will deal with his submissions prior to referring to those of the respondent.
(b) Submissions of the Independent Children’s Lawyer
116.Counsel for the Independent Children’s Lawyer, Mr McGregor, correctly submitted that this is a discretionary judgment in which his Honour was required to make findings about serious allegations made by the mother that the father had sexually abused the child, and “to determine whether as a result of that he should have no contact or have supervised contact – on the basis that there was an unacceptable risk to the child”. The transcript of counsel’s submissions at the appeal makes further reference to this point:
MR MCGREGOR: His Honour has written a judgment which is well-reasoned, it properly records the facts as his Honour found them, and there is a mix of factual matters by way of background, there is a mix of principles to be applied, some further facts, principles about unacceptable risk, then it moves into findings again, taking into account the views of the parties, and then culminates by drawing all of that together and making final findings in paragraphs 107 through to 117 of the judgment.
And the mistake that the appellant mother has made, in my respectful submission, is to take some of those paragraphs in isolation and argue that therefore his Honour did not have regard to other matters. It is clear from the judgment that, in my respectful submission, his Honour had regard to all of the matters, and where in a paragraph he may have referred to a particular matter it does not mean he did not have regard to the other matters because he set them all out. (Transcript pg 42)
117.Counsel noted that the trial Judge had the advantage of having the two reports of the Family Report Writer, Mr R, which were reports compiled including his observations of the child and the parents. Mr R was called to provide evidence and was cross-examined by the mother. Counsel further submitted that there was ample opportunity for any matters with which the mother was concerned had happened at contact to be put to Mr R and other witnesses from the contact centre at the trial. The reports overall showed that the child had been observed to have a good relationship with the father, despite the allegations made by the mother. Counsel submitted that statements made by the child did not detract from the overall impression that the child was comfortable in the company of the father.
118.Counsel made reference to the first report of Mr R (Vol 2 Appeal Book p175) commencing at 8.1.2 (Vol 2 Appeal Book p.188):
8.1.2The risk of the child being abused whilst in the father’s care is assessed as being minimal.
8.1.3It is assessed that the child would benefit from having increased and on-going contact with his father and that eventually a shared care arrangement in which the child spend equal time with each parent would be appropriate as long as the parents live in reasonably close proximity.
119.Counsel also referred to the second report (Vol 2 Appeal Book 199) at paragraph 8.2.2 (Vol 2 Appeal Book p.210):
8.2.2In respect of the allegations of sexual abuse the report writer does not see it as his role to determine whether or not the sexual abuse has occurred. However, it is noted that most of the behaviours and comments allegedly made by the child as reported by the mother to be indicators of sexual abuse such as seemingly obsessive behaviour relating to comments about eating faeces, together with severe tantrums and references to penis sizes are not necessarily indicators of sexual abuse and may be caused by a variety of other factors.
8.2.4It is difficult to interpret the meaning of the apparent deterioration and the interaction between the father and child as observed in the play session for this report, however, it is noted that most interactions between father and child that have been recorded by contact centre staff have been very positive. It should also be noted that the avoidant and reserved behaviours displayed by [the child] in the observed play session for this report are not uncommon in situations where there is significant conflict between the parents and where the child is aware that one or the other parent is not comfortable with the child’s contact with the other parent.
120.Counsel argued that his Honour had evidence from Mr R from which he could conclude that it was unlikely that sexual abuse had occurred and unlikely that there would be an unacceptable risk of abuse if unsupervised time was ordered with the father.
121.Counsel referred to his written submissions – under Ground 1 – that the trial Judge did not misdirect himself. I accept that because the child said he did not like his father that could be regarded as a disclosure of sexual abuse. Under Ground 2 of his submissions counsel submitted that the evidence showed that the child was described as “generally comfortable and happy to be in close proximity with the father and showed no signs of distress”.
122.In relation to Ground 4 counsel referred to Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 where a similar statement was made. Counsel submitted that the relationship between the child and both parents must be considered very seriously before orders are made that terminate or restrict that relationship.
123.Counsel’s submissions referring to Ground 5 emphasised the high standard of proof required in the circumstances given the “heinous” nature of allegations made against the father. Counsel referred us to S v R (1999) FLC 92-834.
124.In his written submissions, Mr McGregor referred to the trial Judge’s “literal interpretation” of the disclosures made against the father. He indicated that it would be an “error to suggest that therefore the learned trial Judge ‘has taken literal meaning of the disclosures’ overall”. He continued:
It is simply part of the exercise the trial Judge undertook to forensically examine the disclosures and the behaviours exhibited by the child in order to determine the questions of whether abuse had occurred, if so was it at the hands of the father, and if he was unable to answer the questions, was there an unacceptable risk to the child of unsupervised contact.
It is also an error to suggest that the trial judge ‘placed no weight on the disclosures made by the child’. His Honour properly weighed the disclosures along with the other behaviours and objective evidence in coming to the conclusions he did. (Written submissions pp 5 & 6)
125.In relation to Ground 7 counsel submitted that the trial judge based his decision on the matters set out before him at the trial, and “it was not a critical part of the exercise to determine whether the respondent lied about his prior heroin use, the child’s communication skills, whether or not there was a dispute about a proposed termination of pregnancy”.
126.The final submission of counsel to which I will refer related to Ground 9 and the trial Judge’s findings in relation to expert evidence. Counsel referred to paragraph 74 of his Honour’s reasons:
I accept the submissions advanced by counsel for the Independent Children’s Lawyer that no positive finding of past abuse can legitimately be made in this case because of the unsatisfactory and insufficient nature of the evidence adduced to support it.
127.Counsel for the Independent Children’s Lawyer asks that the appeal and cross-appeal be dismissed.
(c) The Respondent’s Submissions on the Appeal and the Cross-Appeal
128.The respondent relied mostly on his written submissions. It is not necessary to deal with the respondent’s submissions on the appeal in view of my conclusions.
129.The father’s other submission related to the cross-appeal. The father referred to the first report of Mr R, which recommended that the mother receive counselling to help her deal with the child’s need to spend time with the father. The father submitted that the mother did not comply with the orders made before Registrar Spelleken, and that the mother “is basically unwilling to facilitate a relationship between the child and [the father] and unwilling to adjust her attitude” to encourage communication between the parties. (Transcript page 47).
130.The father’s ultimate submission was that the child should reside with him and spend time with the mother in light of the mother’s unwillingness to facilitate contact between the father and the child.
131.It was clearly explained to the father that to be successful in his cross-appeal, the father would need to demonstrate that his Honour made an error in the judgment at first instance.
132.I do not in this case consider that the issue raised by the father is an appropriate matter for a cross-appeal. The father has not filed any material by way of affidavit or otherwise, and we cannot allow further evidence in the appeal that was not before the trial Judge without an application to support the inclusion of that evidence. Even if we decided to allow the cross-appeal, it would be necessary to list the matter for a rehearing.
133.In my view, the better course is to dismiss the cross-appeal. The father has available to him various remedies because the trial Judge in paragraph 9 ordered as follows:
The father and the Independent Children’s Lawyer have liberty to relist on the giving of 5 days written notice to the mother within the next 12 months but not otherwise.
Conclusions
134.Having reviewed all the evidence I do not find that the trial Judge made an appellable error.
135.In relation to the grounds that factual errors were made, in my view at the most there are parts of the judgment which appear to be in conflict. Importantly, it is clear from the judgment that his Honour correctly recorded the evidence in relation to what the child said and to whom he said these things, described as disclosures.
136.Certainly, his Honour was influenced by the expert opinion of persons other than the child’s family, he was entitled to do so. There was no attack on their reports or opinions.
137.I am of the view that even if his Honour mistook the evidence in relation to any of the matters contained in the grounds it cannot be seen that such errors affected his judgment. In any event, the orders made by the Judge were given after a careful consideration of all the evidence and were plainly right.
138.The appellant was concerned with remarks made by the trial Judge about occasions when orders deny a parent from spending time with a child and the caution to be applied in making findings that a parent is an “incestuous homosexual”. These remarks were made in the context of the orders as asked by the mother and how the case was conducted. It may be that the remarks were unnecessary. In any event they apparently made no impact on his Honours decision.
139.No error of law having been identified, there being no mistake made in the sense I have described, it cannot be said that his Honour’s discretion miscarried in any way, I would dismiss the appeal.
Costs
140.The parties made oral submissions in relation to costs at the conclusion of the hearing of the appeal. The procedure was explained to the parties.
141.In the event that the appeal were to succeed the appellant and the Independent Children’s Lawyer sought certificates under the Federal Proceedings (Costs) Act 1981(Cth). The respondent did not ask for a certificate as his costs of the preparation for the appeal were minimal.
142.In the event that the appeal was not successful the appellant asked that an order for costs not be made against her, given the nature of the appeal and her relatively low income. The mother works part-time as a childcare worker, is a student and pays rent at her current place of residence. The respondent made no application for costs against the mother. The Independent Children’s Lawyer, as he is legally aided, asked for costs in the event that the appeal is unsuccessful.
143.In this case, having regard to s 117 of the Act, in particular the financial circumstances of the parties and the nature of the appeal and the cross-appeal, each party including the Independent Children’s Lawyer should bear their own costs.
I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 26 October 2007
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Appeal
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Procedural Fairness
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Costs
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Jurisdiction
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Judicial Review
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