MACKWETH & GALLEGO
[2017] FamCAFC 261
•8 December 2017
FAMILY COURT OF AUSTRALIA
| MACKWETH & GALLEGO | [2017] FamCAFC 261 |
| FAMILY LAW – APPEAL – PARENTING ORDERS – Whether the primary judge erred in not appointing a case guardian – Where the father was represented at trial and had recently engaged lawyers in a defended criminal trial – Where no application for a case guardian – Episodic mental illness does not justify a case guardian per se – The totality of the evidence demonstrates the father did not require a case guardian for the trial and the trial was fair – Findings of fact – Family violence – Children’s statements and views – Evidence of single expert psychiatrist given weight – Where there is no basis to interfere with findings – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the father has been wholly unsuccessful – Where the father’s conduct has led to the mother incurring unnecessary legal expenses – Strained financial circumstances is not a bar to a costs order – Mother’s application for costs granted – Where the Independent Children’s Lawyer seeks costs against both parties – Where there is no basis for a costs order against the mother – Costs application of the ICL against the father granted. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 |
| APPELLANT: | Mr Mackweth |
| RESPONDENT: | Ms Gallego |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3015 | of | 2012 |
| APPEAL NUMBER: | EA | 22 | of | 2016 |
| DATE DELIVERED: | 8 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 14 November 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 January 2016 |
| LOWER COURT MNC: | [2016] FamCA 10 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney SC |
| SOLICITOR FOR THE RESPONDENT: | Diana Perla & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The application to adduce further evidence in the appeal be dismissed.
The appeal be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the amount of $26,000, within three (3) months.
The appellant father pay one half of the Independent Children’s Lawyer’s costs of and incidental to the appeal in the amount of $2,543.30, within three (3) months.
The application by the Independent Children’s Lawyer that the respondent mother pay one half of the Independent Children’s Lawyer’s costs be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mackweth & Gallego has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 22 of 2016
File Number: SYC 3015 of 2012
| Mr Mackweth |
Appellant
And
| Ms Gallego |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Mr Mackweth (“the father”) appeals against parenting orders made by Rees J on 20 January 2016 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). Numerous notices of appeal have been lodged by the father and we gave him permission to rely on a notice filed on 7 November 2017. By that notice, the father appeals against Orders 3, 4, 5, 7 and 8 of the orders.
The father and his former wife, Ms Gallego (“the mother”) are the parents of two children, D who was born in May 2006 and B who was born in March 2009 (“the children”). Following the parties’ separation in February 2011, the children lived with the mother and spent time with the father. Following an incident of family violence in April 2014, the father was charged with aggravated break and enter with intent to commit a serious indictable offence. Although the father was acquitted, the primary judge was satisfied that the father assaulted the mother who was seriously injured. Following this incident the children’s time with the father stopped and other than in relation to the interviews with the single expert they have not spent time with him since.
The practical effect of the orders was to give the mother absolute parental authority for the children and to exclude the father from their lives. The orders provide for the mother to have sole parental responsibility for the children (Order 3), for the children to live with her (Order 2) and have no time (Order 4) or communication (Order 5) with the father. Order 5 also restrains the father from attending the children’s schools. Order 5 is qualified by Order 6 so that the father is permitted to send the children gifts, cards or letters to an address nominated by the mother. The orders give the mother permission to remove the children from the Commonwealth of Australia for holidays of up to 28 days duration (Order 7) and for her to obtain a passport for the children without needing to obtain the father’s consent (Order 8).
The orders were in line with those sought by the mother and Independent Children’s Lawyer (“ICL”) appointed to represent the children’s interests. They also reflect the opinion of Dr R, a child and family psychiatrist who was appointed as the single expert.
The primary judge was satisfied that the father had been violent to the mother, which had greatly affected the children who did not want to spend time with him. The father and members of his family actively withheld information from the mother, the single expert and the Court about the father’s criminal history, his extensive attendance on psychiatrists (including that he had been diagnosed with schizophrenia) and that he was then under the care of a psychiatrist.
The father accepted that any time he spent with the children would be supervised. Of the family members proffered by the father as possible supervisors, only his mother gave evidence. In cross-examination however, she failed to accept that the father had any mental health difficulties or that his time with the children needed to be supervised, and was found to be unsuitable. Further, as the primary judge said, there was no evidence that any contact centre, properly informed about the risks the father posed to staff, would accept this family.
The father had an income of about $2000 per week yet failed to support the children financially. The primary judge was satisfied that he lacked the capacity to meet the children’s needs.
Critically, at [248] and irrespective of the nature of supervision offered, the primary judge said “[i]t is not possible for the children to have any face to face contact with the [father] that will keep them physically or psychologically safe. No orders will be made for face to face contact”.
The mother resists the appeal and seeks to uphold the orders.
The ICL contends that the appeal should be dismissed. It will be.
Discharge of the case guardian
At the commencement of the hearing before us the father applied to discharge an order dated 1 June 2016 whereby his mother was appointed his case guardian in the appeal. The father’s mother was present and endorsed the application.
It is uncontroversial that the father has a history of mental illness which, on occasion, impedes his judgment and ability to function. Indeed, according to him, he lacked the capacity to appropriately engage lawyers for the hearing before the primary judge, and was sufficiently unwell that the primary judge should have stopped the hearing. Although this is an issue to which we will return, it was common ground that when the order appointing the case guardian was made he lacked the capacity to conduct the appeal.
However, the father said that since then his mental health has improved and he has in fact actively managed the proceedings. For example, he appeared on an occasion on his own behalf in the property proceedings and also before an Appeal Registrar. He was primarily responsible for the preparation of affidavits sworn by him and filed in the appeal, as well as the notice of appeal and amended summary of argument relied on before us. Although these documents may not ultimately be persuasive, they demonstrate that the father understands the appeal processes, the need to establish error and had an adequate grasp of the facts and circumstances of the case.
Although the father did not present medical evidence as to his current capacity, a short report from his treating psychiatrist, Dr Y, dated 28 September 2016 was tendered. The father obtained that report in an attempt to resist an application by the mother in the NSW Civil and Administrative Tribunal for the appointment of a financial manager for him. The mother’s application was filed on 16 September 2016 in accordance with a direction by Stevenson J to enable dormant property settlement proceedings to progress. Dr Y was of the opinion that the father was able to manage his financial affairs. The Tribunal was not satisfied that the father was not capable of managing his financial affairs and the application was dismissed.
There are obvious differences between the capacities to manage one’s financial affairs and to prosecute an appeal but the fact that the father is able to manage his financial affairs lends support to his claim of capacity. Further, there was no evidence placed before us which raised any doubt about the father’s representation that he was capable of prosecuting the appeal himself. In this respect a history of mental illness requires consideration of whether a person has the capacity to undertake a legal process but does not justify an automatic inference that such a person lacks capacity. When they were invited to address the application, senior counsel for the mother and counsel for the ICL raised no opposition to the order being discharged, which it was.
However, for an abundance of caution we asked the father’s mother to remain and to act as his McKenzie friend. The father’s mother agreed and she also agreed to bring to our attention anything which caused her to be concerned that the father may not be coping with the hearing. No matters of concern were raised.
The father engaged with the appeal issues appropriately. He was polite, responsive and, when asked, he was able to take us to relevant pages in the appeal books. In short we are satisfied that the father was able to conduct the appeal and the order discharging his case guardian did not operate to his disadvantage.
The grounds of appeal
The appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Further, it is well settled by authority that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight (Gronow v Gronow (1979) 144 CLR 513 at 520). This is particularly brought into focus in respect of parenting orders which inevitably involve assessments of the future (see CDJ v VAJ (1998) 197 CLR 172 at 218).
There is no challenge, and nor in our view could there be a challenge, to the primary judge’s statement as to the approach to be adopted in cases such as this. It seems to us that the principal challenges advanced by the father assert that the primary judge erred in:
·Denying the father procedural fairness by failing to stop the parenting proceedings and appoint a case guardian for him (Ground 1);
·Finding that the father assaulted the mother on 4 April 2014 (Ground 2);
·Giving weight to statements attributed to the children about the assault and their views generally (Grounds 3 and 9);
·Giving weight to the opinion of the single expert (Grounds 5, 6, 7 and 8),
·Giving weight to the mother’s evidence on various matters (Grounds 4 and 10) and making various findings contrary to the weight of the evidence and associated errors.
Was the father denied a fair hearing?
It is the father’s contention that the primary judge “made an error of law to allow the case to proceed without a case guardian, which has impacted the outcome of the hearing”. He relies on findings concerning his lack of disclosure and various pieces of evidence which he says should have demonstrated to her Honour that to proceed with the hearing would be unduly prejudicial to him and constitute a miscarriage of justice.
As to the question of procedural fairness, in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
Ultimately, questions of procedural fairness turn on their own facts. As to the lack of capacity, this raises the fundamental principle of a person’s right to be heard when an order is made which will deprive that person of some right or interest. Such a person is entitled to know the case against him or her and, relevant to the challenge mounted by the father, is to be given the opportunity of replying to it (Kioa v West (1985) 159 CLR 550 at 582). The point being a person who lacks capacity to understand the proceedings, engage with the facts or provide adequate instructions to his or her lawyers, can do neither of those things.
Not every denial of procedural fairness will establish an error of law. The father says that it does in this case because it resulted in the primary judge coming to an adverse view as to the reliability of his evidence in circumstances where his mental health difficulties contributed to that outcome.
Her Honour found as follows:
20.There were a number of relevant matters which [the father] did not disclose to the Court.
21. He did not disclose in any affidavit, or to the single expert, that he had been convicted of assault occasioning grievous bodily harm arising out of an incident when he was 17 years old. His evidence in cross-examination, as will be discussed later in these reasons, minimised the seriousness of that incident.
22. He did not disclose in any affidavit that he had been the victim of an armed robbery in November 2012. The matter was in Court for a conciliation conference on 16 November 2012. He did not disclose that he had made a workers’ compensation claim arising out of that incident. He did not disclose that he had been assessed by six separate psychiatrists in the course of the workers’ compensation proceedings.
23. He did not disclose that all six psychiatrists had diagnosed him as suffering from serious mental illness. (The opinions of the psychiatrists will be set out fully later in these reasons).
24. He did not remember seeing Dr SS in January 2013.
25. He denied having been referred by Dr V for anger management counselling.
26. He did not disclose that he was in receipt of periodic payment of workers’ compensation.
27. He did not disclose that his mother, [Ms G Mackweth], had been appointed as his case guardian in the workers’ compensation proceedings on the recommendation of a psychiatrist who said he was not capable of giving instructions.
28. He did not disclose that he was being treated by a consultant psychiatrist, Dr Y, who saw him as frequently as twice each week and, at the date of the hearing, three times each fortnight.
29. [The father’s] evidence in his affidavit sworn 6 March 2013 about his ability to care for the children unsupervised was totally contrary to the statements both the husband and his brother [Mr BB Mackweth] were making to various psychiatrists as to his impairment during the same period.
30. [The father] actively deceived the Court when he completed his parenting questionnaire in October 2013 and, in answer to the question “Do you suffer from any medical condition which requires supervision by a medical practitioner...” he answered “N/A”. That statement was false and [the father] knew it to be false. He was regularly attending [Dr Y], at times, twice a week.
31. Also in October 2013 [the father] signed an undertaking as to disclosure stating that, to the best of his knowledge, he had complied with his obligations of disclosure. That statement was false and [the father] knew it to be false.
32. Further concerns about the reliability of [the father’s] evidence arose during the hearing of the parenting proceedings. He said in cross-examination that after the robbery in November 2012, he had difficulty reading and concentrating and the medication he was taking took away his memory. However [the father] relied on five separate affidavits sworn by him in 2013 and made no mention in those documents of any impairment.
33. He could not name the firm of solicitors who currently act for him or the firm who act in his workers’ compensation case.
34. He could not name the solicitors who acted for him in a nine day trial in the District Court.
35. He could not remember if he had studied or attended any college in 2014.
36. He said in cross-examination that he remembered “bits” of what happened on 4 April 2014, an event which will be referred to in detail later in these reasons, but later gave quite detailed evidence about that event.
37. He denied that he was the transferor of a property recently sold by him in Suburb H until he was shown the signed transfer. He could not tell the Court, or was unwilling to tell the Court, where some $700,000 being the net proceeds of sale of the property recently sold by him had gone.
38. He said, in relation to a recent Financial Statement upon which he was cross-examined, that he had never read the document and did not remember swearing an oath when it was executed.
39. It is not intended here to detail each and every unsatisfactory aspect of [the father’s] evidence but to demonstrate that he was not a reliable historian.
As these findings demonstrate, the father’s pattern of non-disclosure started years before the trial commenced and was pervasive. In this respect, at trial, the father relied on nine affidavits sworn by him, only one of which predates 13 November 2012. The significance of this date is that it is on this day that the father was the victim of an armed robbery following which he attended a number of psychiatrists in relation to his claim for workers’ compensation arising therefrom. All affidavits are coherent, engage with the issues in the proceedings and answer the evidence given in the mother’s affidavits. They were prepared and witnessed by solicitors retained by the father. There is nothing in them which would cause concern about the father’s capacity to provide adequate instructions to his lawyers, suggest that he misunderstood the undertaking as to the disclosure he signed in October 2013 or otherwise excuse his lack of candour.
We asked the father to show us evidence from even one of the seven psychiatrists he saw which suggested that as at the date of trial he was incapable of participating and required a case guardian. The father seemed to acknowledge that there was none, which there wasn’t.
However, the father relied on the opinion of Dr NN contained in a letter the doctor wrote to the father’s workers’ compensation insurers on 10 November 2014. Dr NN wrote that he doubted the father had the capacity “to understand legal proceedings or to give instructions” [123]. A letter from Dr Y dated 1 June 2015 was also relied on. In that letter Dr Y commented that the father “has significantly impaired attention and concentration and memory … so there are some times when he is not able to comprehend the conversation he is involved with”.
In relation to the letter from Dr NN, this has little relevance to the matter at hand. This is because, some five months later, in relation to the charge arising from the events of 4 April 2014, the father retained lawyers and instructed senior counsel at a trial by jury which lasted nine days. There is no basis on which we would infer that he had the capacity to conduct those proceedings but, based on Dr NN’ opinion, not the family law trial.
The evidence placed before the primary judge concerning the father’s mental health was far more complex and comprehensive than the matters on which he relied in support of this challenge. Under the heading “the [father’s] psychiatric evidence” between [88] – [158] the primary judge discussed the nature of that evidence and made findings in relation to it. Dr NN’ opinion as to the father’s lack of capacity was mentioned. There is nothing in that aspect of her Honour’s reasons which suggests that as at the date of the commencement of trial the medical evidence was to the effect that the father lacked the capacity to continue to instruct his legal representatives and/or participate in the hearing.
Indeed and to the contrary, the primary judge had a more recent letter from Dr Y than the one on which the father relied. In that letter, dated 18 November 2015 and thus contemporaneous to the trial, Dr Y said:
[b]y the middle of this year I decided to try and vary different combination of medications based on more recent developments in the understanding and treatment of Post-Traumatic Stress Disorder. And since then, there has been a very marked improvement in [the father’s] well-being and reduction of symptoms and suffering.
Further, the father said he appeared before the primary judge on 11 November 2015 without legal representation. As best we can tell the father seemed to contend that based on this appearance the primary judge should have delayed the start of the trial. However, the court record established that the father was wrong in this regard and counsel, who went on to appear at the trial, also appeared at this pre-trial hearing and the father did not appear on his own behalf. It follows that the circumstances of the appearance are irrelevant.
A review of the trial transcript demonstrates that the father was represented by that same counsel throughout the trial and that counsel fully engaged with the trial process. The father did as well and, as senior counsel for the mother was able to establish, there were numerous occasions on which counsel for the father obtained instructions from the father on matters of interest. There are examples of this on at least 16, 18, 19 and 20 November 2015. In summary, the trial transcript shows that the father was engaged in the trial itself and ably represented throughout.
Some months later counsel who continued to appear for the father sought to be excused from the proceedings on the basis that he could not then obtain adequate instructions. This reveals that those who appeared for the father at trial were astute to the question of capacity (as would be expected), and we infer, were satisfied at that time that he had the capacity to provide appropriate instructions.
We are not satisfied that there was evidence before the primary judge that the father lacked capacity to conduct the trial or that the trial was anything other than fair.
Ground 1 has not been established.
The mother was assaulted on 4 April 2014
Before we commence our analysis of the challenge to this aspect of the trial reasons it needs to be understood that the mother gave evidence of extensive family violence which was discussed at some length in her Honour’s reasons. Given the magnitude of the evidence of family violence, the primary judge elected to address the more serious incidents and to analyse the evidence with particular regard to that which was corroborated by medical evidence; that is to say, where contemporaneous medical evidence corroborated the mother’s evidence that she had been injured and of complaint. Even if the incident of 4 April 2014 was put aside, her Honour’s findings establish that the father perpetrated ongoing violence against the mother which resulted in her having many injuries. In addition he was found to have told a caseworker of a plan to kill her and there was evidence he told one of the children the same thing. By reference to the trial record and her Honour’s findings, the ultimate conclusion that it was not possible to keep the children safe if they spent time with the father would survive unscathed even if the challenge in relation to the conclusions concerning 4 April 2014 (or indeed all challenges) were made good.
It is uncontroversial that on 4 April 2014 there was an incident of violence between the parties to which the children were privy. Various injuries were inflicted on the mother which were photographed, some by a friend in the early morning before police arrived and others taken later in the day by a police photographer. During the interregnum the mother was seen by Dr PP at about 9.00 am at E Hospital. At [84] the primary judge recorded, uncontroversially, that “[t]he photographs show [the mother] with blood shot and bruised eyes, a split lip and other cuts and bruises.” What is controversial is her Honour’s final sentence of that paragraph that “Dr PP gave evidence that the injuries to [the mother’s] face were consistent with her version of the event.”
It is the father’s contention that Dr PP gave evidence in the District Court that he did not see cuts to the mother’s mouth. This contention is correct. There is no dispute that the photographs depict injuries to the mother’s mouth or that the mother said the injuries were caused by him. According to the father, it follows that these injuries were either self-inflicted or caused by someone else, and that if there is doubt about these injuries there is doubt about all of them. Further, given that Dr PP did not see injuries to the mother’s mouth the primary judge was wrong to conclude that Dr PP gave evidence that the injuries to the mother’s face were consistent with her version of the event.
This submission should be rejected. On a proper analysis of Dr PP’s evidence he was clear that the injuries to the mother’s face were consistent with blunt force trauma such as being punched and that as well as the injuries to and close to her eyes he observed bruising to the outside of her mouth (but not cuts to the lip).
In regards to the notion that the mother altered the photographs or injured herself, the father’s position on appeal differs somewhat to that which he adopted in the criminal trial and before the primary judge. Relevantly, before her Honour, counsel for the father explained the forensic decision not to put to the mother that some or all of her injuries were self-inflicted as follows:
… Your Honour, I’m not going to be putting to this witness what Mr Terracini didn’t, in that I’m not going to be putting to this witness that the injuries were self-inflicted, because I do not think that I have an evidentiary basis to do so. But what I can indicate to the court is that my instructions are that my client does not admit that he is the sole cause of each and every single one of those injuries that are depicted on the photographs. I hope that clarifies the position of my case theory, your Honour, but there’s not going to be a line of questioning that this witness self-inflicted particular injuries. But what I will be doing is I will be referring the court to those aspects of [Dr PP]’s evidence, where the issue was, if I could use the word, alluded to.
(Transcript of 16 November 2015 (afternoon), p 2, lines 35 – 44)
In other words there was no issue that the father had caused some of the injuries (in self-defence) but not all of them.
However, the father’s evidence given to the primary judge in relation to the injuries was internally inconsistent and at odds with the notion that he may, in self-defence, have caused some of them. Notwithstanding the position adopted by his counsel that the proposition of self-inflicted injuries could not be put to the mother, the father maintained that they were and said that none of the injuries were caused by him.
His evidence is best summarised by following exchanges during his cross-examination:
[SENIOR COUNSEL FOR THE MOTHER]: So certainly, as at April 2015, it was your view that the bruise to the left side of the face was a self-inflicted injury. Correct?
[THE FATHER]: Yes.
[SENIOR COUNSEL FOR THE MOTHER]: Right. What other of the – of the injuries that you see depicted in those photographs do you say were self-inflicted?
[THE FATHER]: Well, it could be any of them.
[SENIOR COUNSEL FOR THE MOTHER]: Right. So would it be fair to say that as far as you’re concerned all of them could be self-inflicted?
[THE FATHER]: Yes.
[SENIOR COUNSEL FOR THE MOTHER]: Thank you. And none of them are as a consequence of any act, you say, by yourself?
[THE FATHER]: She bit me. I just held on till she stopped ---
[SENIOR COUNSEL FOR THE MOTHER]: I know you’re insistent on telling me that, sir, but if you would answer my question. None of them are as a consequence of any act of yours, you say. Correct?
[THE FATHER]: Yes.
(Transcript of 18 November 2015 (morning), p 43, lines 42 – 46 to p 44, lines 1 – 8)
And also:
[SENIOR COUNSEL FOR THE MOTHER]: And I suggest, sir, what [Dr PP]’s asking – being asked questions about is the picture that appears in exhibit photograph 2. Do you see that there?
[THE FATHER]: Mmm.
[SENIOR COUNSEL FOR THE MOTHER]: A photograph of [the mother]. Correct?
[THE FATHER]: Yes.
[SENIOR COUNSEL FOR THE MOTHER]: With a red mark in at least a third of her eye. Correct?
[THE FATHER:] Yes.
[SENIOR COUNSEL FOR THE MOTHER:] A mark I suggest that was caused by you?
[THE FATHER]: It can’t be.
[SENIOR COUNSEL FOR THE MOTHER]: Right. And [Dr PP] then goes on and is asked this question:
You said that it was consistent with a blunt trauma. Is that correct?
Answer:
That is correct.
Question:
So it would be consistent with being punched in the eye?
Answer:
It would be consistent with being punched in the eye.
And that’s what you did, didn’t you?
[THE FATHER]: No. If I punched her she ---
[SENIOR COUNSEL FOR THE MOTHER]: Punched the mother of your children in the eye?
[THE FATHER]: Rubbish. One punch, she’s dead.
[SENIOR COUNSEL FOR THE MOTHER]: That’s right?
[THE FATHER]: Yes. From me, no way. This never touched her at all like this. She did it herself.
(Transcript of 18 November 2015 (morning), p 45, lines 1 – 32)
Although the primary judge did not discuss the theoretical significance of Dr PP’s evidence that he did not observe a cut to the mother’s mouth; in circumstances where it was not put to the mother that she caused her own injuries this evidence did not demand specific attention. The primary judge was entitled to place significant weight on the photographs of the injuries to the mother’s face and Dr PP’s evidence about their likely cause. Further, given that the father denied having caused any of the injuries it was not necessary for the primary judge to discuss each and every injury to the mother’s body and permissible to adopt the approach which she did. In our view the inconsistencies in the father’s evidence in relation to this incident more than justify her Honour’s concerns that he was an unreliable historian as well as her decision to give his evidence about the event little or no weight. There is no doubt that the totality of the evidence sits much more comfortably with the findings than the notion of self-inflicted injuries and doctored photographs.
This ground is not made out.
The children’s statements and views
The gravamen of these grounds is that the primary judge should have accepted that the mother influenced the children to make false statements about the father’s role in the 4 April 2014 incident and influenced them against spending time with him.
As to the incident on 4 April 2014, the father points to inconsistencies in the children’s various statements and interviews about what they saw and the fact that between when he left the mother’s premises at about 3.30 am or 4.00 am, and when the children gave their statements to police later that morning, there was an opportunity for the mother to persuade the children to give an account consistent with her version rather than the truth. However, the primary judge was satisfied that immediately after the father left, the mother called her neighbour and relatives. Her Honour found:
81. The children were cared for by relatives and, later on 4 April, taken by them to the police station where they each made a statement. The children did not see their mother at any time between her being taken away by ambulance and making their respective statements. Both of the children told the police that they had seen their father assault their mother.
The findings at [81] are not challenged and it necessarily follows that if the mother had the opportunity to influence the children, it was fleeting at best. That fleeting influence sits most uncomfortably with the children’s distress about how they were treated in the criminal trial by those appearing for their father and the fact that he continues to maintain that they lied. In relation to the notion that the children were said to be unreliable witnesses, at [83] the primary judge said:
83. In the course of the trial the children were cross-examined by Senior Counsel for [the father]. They were aged almost eight years old and five years old at the time of the assault and a year older when they were cross-examined. The children perceive that they were called liars by Senior Counsel for [the father] in the course of the trial and that they were not believed. [D], in particular, is very angry about that experience. The cross-examination of the children concentrated on discrepancies in their evidence. At no time was it put to the children that their father did not assault their mother.
The final sentence of [83] undoubtedly, and in these civil proceedings properly, carried significant weight. It shows that the primary judge did not allow these discrepancies to stand in the way of the obvious fact that the children were never challenged about their consistent statement that their father assaulted their mother. There is an obvious integrity to this approach and error as alleged has not been demonstrated.
As to the children’s views, the primary judge found:
221. Section 60CC(3)(a): The children’s views have been carefully considered by [Dr R]. I accept that [B] has a residue of affection for her father and the paternal family. I accept that [B]’s expressed wish not to see [the father] until she is considerably older has to be considered in the light of the interaction that [Dr R] observed with the paternal family. I accept that [B]’s extreme views are coloured by his alignment with his mother.
222. I also accept the evidence of [Dr R] of the importance for [D] of his views being “validated” in these proceedings.
When regard is had to the evidence given by the children’s treating psychologist and that of the single expert there is no doubt that these findings were available and that the primary judge was alive to the possibility of alienation and influence by the mother.
Dr R observed the children with the father, in D’s case once and in B’s case twice. D was so distressed by the first encounter he refused to participate in the second family meeting. In relation to the first encounter her Honour found it occurred as follows:
174. On the next occasion [Dr R] saw the children with their father. [Dr R] noted:
The children’s response to the [father’s] arrival was dramatic. He immediately approached and crouched down in front of them. [D] and [B] both responded by shouting in an agitated manner. They yelled: “No!” as he approached to hug them. [The father] spoke of wanting to but not being allowed to see them. [D] yelled back that he had come to their house to hurt them. In response to the children (sic) distress, the [father] disputed their experience and questioned: “So, who told you this?” He responded that their mother was found to be lying in Court. [D] angrily reported that their father had paid [senior counsel for the father] to terrorise them. [D]’s affect was one of anger and agitation rather than fearfulness. He called his father “a piece of shit”. [The father] defended himself and justified his actions. He questioned why he wasn’t allowed to see them. He retorted that they weren’t scared.
Both [B] and [D] became more agitated and distressed. They yelled and screamed. [D] stormed out of the office to find his mother. [B] followed.
After the [father] left the interview room, [D] and [B] were invited back into the office with their mother. [D] was screaming and demanding to leave when asked back into the office.
The mother was able to settle the children and, with Dr R’s encouragement and the support of the mother, they agreed to see the paternal grandmother and the father’s sister, provided the mother remained. She did, and D continued to be as distressed as he had been in the meeting with his father. However, B settled and was happy to remain with her paternal relatives and for the mother to leave the room. Although she resisted the father being included in the meeting, she was talked into him joining them.
In relation to that meeting, at [180] the primary judge accepted the following evidence given by the single expert:
[B] immediately joined in the game that was established by [the father’s sister]. She smiled as she asked her father about the dogs. [B] and [the father’s sister] continued to joke and smile in an enthusiastic fashion. [B] continued to show off her earrings. She responded in a positive manner to her father. There was no indication of fearfulness.
The interactions between [B] and her father and aunt and grandmother continued for more than two hours. Their interactions remained delightful and enthusiastic. As [B] felt more comfortable, she allowed her father to approach her, hug her and hold her in his arms. All family members continued to interact in a joyous fashion.
After that meeting B told Dr R that she did not wish to see her father or his family again. She thought she would like to see them when she was a bit older, perhaps 12 or 14.
Ultimately it can be seen that the primary judge considered that B was old enough and had been through enough with her father for her views to be afforded considerable weight, even if they had been influenced by the mother. The same approach was adopted in relation to D.
The statements the children made to the police about the father’s behaviour towards the mother on 4 April 2014 carried real but not determinative weight. This case was decided primarily by reference to her Honour’s assessment of the totality of the evidence concerning the father’s violence towards the mother (independent evidence of her injuries), his inability to meet the children’s needs, the inability to keep the children safe if they spent time with him and the effect on the children if they were forced to spend time with him against their wishes. Although any one of those findings would have been sufficient to justify the orders to exclude the father from the children’s lives, the fact that they were considered in combination is sufficient for these challenges to fail.
We are frankly dismayed that the father continues to maintain that apparent discrepancies in the children’s versions of what they witnessed him do to the mother should be given greater weight than the core consistent elements of their statements. It behoves the father to reflect on how distressed the children became in his presence and how poorly he dealt with them and to contemplate that the children’s thoughts about what they have been through deserves proper acknowledgement. We only mention this because if the father remains devoid of insight as to the effect the litigation and his approach to the children has had on them it is difficult to see how he could ever hope to re-establish any form of relationship with them.
The opinion of the single expert
By grounds 5, 6, 7 and 8 the father challenges the weight which her Honour gave to the opinion of the single expert. The single expert completed two reports, the first dated 8 September 2015 and the second dated 6 November 2015. In the first report it was recommended that the children re-establish contact with the father and, after a period of day only contact supervised by members of the father’s family, provided that contact progressed well, overnight time after 12 months. However, in the second report the single expert revised his recommendations and said that the children should spend time with the father, professionally supervised at either a contact centre or through an agency, no more frequently than each fortnight. It was also recommended that there be no changes to those arrangements until the father attended further psychiatric treatment and with feedback from his treating psychiatrist.
The second report was requested by the ICL after it was discovered (but not disclosed by the father or members of his family) that the father had attended on a significant number of psychiatrists and was under psychiatric care. With no assistance from the father, documents from the psychiatrists were produced under subpoena and provided to the single expert.
Her Honour explained the situation as follows:
191. [Dr R] was asked to prepare an addendum report after he had perused that material. In the addendum report, [Dr R]:
These reports raise questions regarding [the father’s] honesty during the expert assessment. He was identified as a psychotic process (sic) most likely Schizophrenia which required assertive psychiatric intervention. He failed to disclose previous psychiatric assessments or treatment, despite detailed questioning about this.
192. [Dr R] reported:
When interviewed on 24 August 2015, [the father] failed to identify his exposure to armed robbery which had allegedly precipitated Post-Traumatic Stress Disorder, two years of psychiatric treatment with [Dr Y] and previous assessments. His failure to do so raises questions regard (sic) to the veracity of his disclosed experience, as identified by Associate Professor RR in June 2013. He and his family failed to acknowledge that he had been diagnosed with Schizophrenia and that he had treated [sic] for this condition. The paternal extended family similarly failed to disclose this when the report writer expressed concerns regarding the [father’s] mental state and impaired functioning.
Given the problematic nature of the [father’s] presentation and the evidence of chronicity, I will need to revise the recommendations as detailed in my previous report, dated 8 September 2015. While the children will benefit from the re-establishment of supervised, day-only contact with the [father] and paternal extended family, this should be professionally supervised at either a contact centre or through an agency, such as Phoenix Rising. This should be no more frequently than fortnightly basis. Prior to any progression to unsupervised or overnight contact, the [father] should be required to attend psychiatric treatment and be transparent with regard to his mental state and treatment. Feedback from his treating psychiatrist should be required.
However, subsequent to this second report even more information about the father came to light, and in his oral evidence the single expert revised his opinion yet again:
217. [Dr R] said that, given the additional material and given his concerns about the [father’s] mental state and potential dangerousness, it was difficult to make any recommendation for contact to occur between the [father] and the children and ultimately he did not recommend that any contact, even professionally supervised, should occur.
The essence of the challenges made in relation to her Honour’s acceptance of the single expert’s ultimate opinion against the children spending time with the father is that the single expert already had the information which he said caused him to revise his recommendation. This assertion is wrong. As the trial record plainly demonstrates, the ICL issued a number of subpoenas to entities such as the police and the process of piecing together the full extent of the father’s psychiatric history and dealings with the Department of Family and Community Services and his criminal history was far from easy. In short, her Honour was entitled to accept the rationale for the revised opinions and to place significant weight on the single expert’s ultimate opinion.
These grounds are not made out.
The remaining grounds
The remaining grounds assert comparatively trivial errors purportedly made by the primary judge in finding that:
·It was significant to the father’s credibility that he did not disclose his spent criminal conviction from when he was 17 years old;
·The father had access to firearms at the time of the trial;
·The mother made an application for an Apprehended Domestic Violence Order (ADVO) in response to the father’s threats to kill her;
·The father’s mother was obligated to disclose the father’s psychiatric illnesses, leading to an erroneous finding that the paternal grandmother was unreliable;
·The father’s mother could not afford to pay the costs associated with a supervised contact centre for the father to spend time with the children;
·The father’s new partner was a victim of domestic violence perpetrated by the father; and
·The father was provided with copies of reports of independent medical examinations undertaken by his workers’ compensation insurers.
Further, the father contends that the primary judge erred by failing to consider:
·The paternal grandmother’s explanation for why she made an application for the children to live with her in the event that the mother died, was on life support, was imprisoned or detained or assessed by mental health professionals as lacking capacity, instead preferring the mother’s view that she regarded this application as a threat; and
·That the mother made false statements under oath about the father’s communication with her.
We point out that the fact that the conviction was spent did not excuse disclosure. In a case concerned with the risk of family violence the father would have well understood he was required to disclose an earlier conviction for a serious offence which involved violence by him. The findings concerning access to guns were undoubtedly available. The single expert asked the paternal grandmother about the father’s medical history and she failed to disclose what she knew. Earlier in the proceedings the paternal grandmother sought parenting orders and although the father lives with her she failed to disclose his history of mental illness. As would be apparent we do not accept that the factual premise for the remaining grounds is made out. They are either a distortion of the trial reasons, misrepresent the facts adduced at trial or fail to engage with the question of whether the findings were available and their materiality.
None of the matters raised in these remaining grounds, even if considered cumulatively, had the potential to affect the outcome of the trial. These remaining grounds will be dismissed.
Application to adduce further evidence
The father has failed to establish error by the primary judge and it is thus necessary for us to consider his application to adduce further evidence. The evidence sought to be introduced is contained in an affidavit sworn by the father on 7 November 2017. Relevantly, it includes documents from YY Hospital, a witness statement by a detective and correspondence between the single expert and the father’s treating psychiatrist. The purpose of this evidence is explained at paragraph 5 of the father’s affidavit as follows:
5. These pieces of new information are vital to prove that [Dr R] had made an inconsistent statement under oath on 19th December 2015 and this information had ostensibly caused him to retract from his earlier recommendation for me to spend time with the children.
Further, it will shed light to the Court that [Dr R] was not a credible witness who would collaborate with [the solicitor for the mother] and [the ICL] to make false statements to the [RR] Hospital, my treating psychiatrist [Dr Y] and the NSW Police. If this evidence is to be adduced, it will shed light and materially change the course of the entire case.
In other words, the purpose of seeking to introduce this evidence is to establish that the opinion of the single expert should not have been afforded significant weight and for the orders to be set aside.
These documents show that after the single expert gave evidence he contacted the father’s treating psychiatrist expressing grave concerns about the father and that he considered him to be a significant risk to others. The police were involved and it was recommended by the single expert that the father be treated in a secure setting.
We do not accept that the various documents attached to the father’s affidavit provide an evidentiary foundation to challenge the integrity of the evidence given by the single expert. They do no more than demonstrate that his opinion which resulted in her Honour’s conclusion that “there is no way to ensure that, if the children spend time with [the father], they can be protected from further violence” [244] was very strongly held and based on a careful analysis of the known facts. Indeed, the likely effect of the documents, if admitted, would be to bolster rather than undermine the trial reasons.
Accordingly, the father’s application to adduce further evidence in the appeal will be dismissed.
Conclusion and costs
The father has not established error and the appeal will be dismissed.
In the event the appeal was dismissed, an application was made by the mother that the father pay her costs in the amount of $26,000. In justification of the quantum, it was pointed out that the father had filed numerous notices of appeal and four versions of his summary of argument. In short, the manner in which the father undertook the appeal caused the mother to incur significant costs unnecessarily. We agree.
We also agree with the submission of senior counsel for the mother that the father’s total lack of success in the appeal justifies an order for costs.
The father resists the mother’s application on the basis that his financial situation is poor. We were informed that his employment is unreliable and he resides with his mother. He has paid some $450,000 in legal fees which he said were paid for by disposing of assets.
Although the father’s financial circumstances weigh against an order for costs in favour of the mother, we place greater weight on the father’s lack of success in the appeal and the fact that because of the way the appeal was conducted, the mother incurred further unnecessary legal expenses. An order in the amount sought will be made.
Irrespective of the outcome of the appeal, the ICL sought costs against each of the parties in the amount of $2,543.30. There is no proper basis upon which an order could be made against the mother. The mother did not initiate the process which resulted in costs being incurred by the ICL and was powerless to stop it. However, for the same reason that an order for costs against the father in favour of the mother is appropriate, so too is the order sought against him by the ICL.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) on 8 December 2017.
Associate:
Date: 8 December 2017
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