Malak & Mairie

[2010] FamCAFC 170

Family Court Of Australia

MALAK & MAIRIE [2010] FamCAFC 170

FAMILY LAW - APPEAL – PARENTING – Against final parenting orders – Where allegations of sexual abuse were made by the Mother of all three children by the Father and where none of the allegations were substantiated – Where the trial Judge did not make provision for the Father to spend time with one of the three children – Where the complaints of the Appellant relate to the trial Judge’s alleged failure to consider relevant evidence and matters of weight – Whether there was any evidentiary basis for findings of fact by the trial Judge – Whether there was a proper consideration of the factors in s 60CC of the Act – Whether the trial Judge was consistent in her reasoning when concluding different outcomes for the three children to spend time with the Father – The principles in Rice v Asplund (1979) FLC 90-725 – Where the outcome was within the proper exercise of the trial Judge’s discretion – Where another Judge might not have reached the same decision but where that does not mean that the trial Judge’s decision was wrong – Appeal dismissed

FAMILY LAW - APPLICATION IN AN APPEAL – Where the Father seeks to address a difficulty with the orders made for communication with the child – Where the Father can make an application addressing such issues – Application dismissed

FAMILY LAW - COSTS – Where there is no controversy as to the financial circumstances of each of the parties – Where the Mother is in receipt of a grant of Legal Aid – Where the Father was self-represented – No order for costs

AMS v AIF (1999) 199 CLR 160
Cross and Beaumont (2008) 39 Fam LR 389
De Winter and De Winter (1979) FLC 90-605
Friscioni and Friscioni [2010] FamCAFC 108
Gronow v Gronow (1979) 144 CLR 513
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Korban and Korban [2009] FamCAFC 143
Miller and Harrington (2008) FLC 93-383
Moose and Moose (2008) FLC 93-375
Norbis v Norbis (1986) 161 CLR 513
Rice v Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

Family Law Act 1975 (Cth) – s 4(1), s 11A, s 11B, s 38N, s 60B(2), s 60CC(2), s 60CC(3), s 61DA, s 62G, , s 117
Family Law Rules 2004 (Cth) – r 15.04, r 15.41(1)(d), Part 15.5, Chapter 19

APPELLANT: MR MALAK

RESPONDENT: MS MAIRIE

FILE NUMBER: MLF 1793 of 2005

APPEAL NUMBER: SA 41 of 2009

DATE DELIVERED: 7 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Finn, O’Ryan and Stevenson JJ

HEARING DATE: 13 October 2009

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 April 2009

LOWER COURT MNC: [2009] FamCA 268

Representation

APPELLANT: Self Represented

COUNSEL FOR THE RESPONDENT: Mr Laidlaw

SOLICITOR FOR THE RESPONDENT: Rigoli & Associates

Orders

1. The appeal be dismissed.

2. The application in an appeal filed by the Appellant on 21 September 2009 be dismissed.

3. There be no orders as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Malak and Mairie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number:       SA 41 of 2009

File Number:            MLF 1793 of 2005

MR MALAK

Appellant

And

MS MAIRIE

Respondent

Reasons For Judgment

Introduction

1. This is an appeal by Mr Malak (“the Father”) against final parenting orders made by Brown J on 8 April 2009 with respect to children, C born in 2000 and twins D and E born in 2004.  The Respondent is Ms Mairie (“the Mother”).  This is an unfortunate case, for reasons which will hereafter become apparent. 

2. The Father was born in 1969 and the Mother was born in 1970.  The Father and the Mother first met in August 1996 and commenced cohabitation during 1997.  The parties finally separated in May 2005.

3. When the Mother and Father separated in May 2005 the child C was five years of age and the twins were a few days short of their first birthday.  The child C is now ten years of age and the children D and E are now six years of age. 

4. Since their separation in May 2005, the parties have been involved in protracted legal proceedings involving the children, which culminated in a notice of appeal being filed by the Father on 5 May 2009 against Brown J’s orders of 8 April 2009.

5. In the proceedings, allegations were made by the Mother of sexual abuse of all three children by the Father.  None of the allegations were substantiated.

6. There was a hearing before Murray J of applications for final parenting orders which lasted for 16 days between 3 April 2006 and 11 May 2006.  On 26 June 2006 judgment was pronounced and her Honour made the following final parenting orders:

   1.     That the mother’s application for relocation with the three children [C] born […] 2000 and twins [D] and [E] born […] 2004 to Melbourne, in the State of Victoria be granted.

   2.     That the said children do reside with the mother who shall have the short term and long term responsibility for their care welfare and development.

   3.     That the father’s application for residence of the said children and for contact with the child [C] do stand dismissed.

   4.     That subject to Order number five [5] the mother do give and the father do have contact with [D] and [E] on at least one occasion in every three months for a minimum period of three [3] hours on a date and a time to be agreed and in default of agreement on the third, sixth, ninth and twelfth month in each year, on the third Saturday in each such month between the hours of 2.00pm and 5.00pm, such contact to take place at a Contact Centre in Melbourne, as close as possible to the mother’s residence, approved by the Child Representative, such contact to commence unless otherwise agreed on 16 September 2006.

   5.     That prior to exercising his right to contact the father do present a Certificate to the Child Representative of his completion of a Parenting Course.

   6.     That such contact be supervised by an employee of the Contact Centre or such other person as nominated by the mother and agreed by the Child Representative save and except for her mother [the maternal grandmother] or as nominated by the father and agreed by the Child Representative save and except his mother [the paternal grandmother].

   7.     That the mother do keep the father informed of her address.

   8.     That the appointment of the Child Representative be discharged following his nomination of a Contact Centre for supervision of contact and agreement concerning a suitable supervisor.

   9.     That liberty be given to either party to speak to the minutes.

   10.    That all matters be removed from the pending cases list.

7. Then on 22 December 2006 an application was filed by the Mother seeking that the orders made on 26 June 2006 be discharged. Thus, within a period of approximately six months the Mother sought a discharge of the final parenting orders. This application by the Mother was made pursuant to s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) and raised for consideration what the Full Court (Evatt CJ, with whom Pawley SJ and Fogarty J agreed) said in Rice v Asplund (1979) FLC 90-725.

8. There was then a hearing before Brown J that commenced on 23 January 2008 and finally concluded on 20 March 2009.  The trial before her Honour lasted six days.

9. On 8 April 2009 Brown J pronounced judgment and made the following final parenting orders:

   (1)    That paragraphs (2), (4) and (6) of the orders made herein on 26 June, 2006 be discharged.

   (2)    That the children [C] born […] 2000 and twins [D] and [E] born […] 2004 live with the mother and she have sole parental responsibility for them.

   (3)    That the father’s application to spend time and communicate with [C] be dismissed save that [C] be at liberty to communicate with the father by cards/letters or telephone, initiated by her.

   (4)    That the orders made on 23 January, 2008 which provide for [D] and [E] to spend time with the father be discharged.

   (5)    That [D] and [E] spend time with the father as follows, and in these orders a reference to [Y Centre] is a reference to the supervised changeover facility offered by [Y Centre] in [N]:

   (a)for five hours on Saturday 16 May, 2009 between 10:00 am. and 3:00 pm. or such other times as can be accommodated by [Y Centre];

   (b)for six hours on Saturday 18 July, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by [Y Centre];

   (c)for six hours on Saturday19 September, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by [Y Centre];

   (d)for seven hours on Saturday 21 November, 2009 between 10:00 am. and 5:00 pm. or such other times as can be accommodated by [Y Centre];

   (e)on the third weekend in January, March, May and July 2010 :

   (i)from 10:00 am. until 5:00 pm. on Saturday, or such other times as can be accommodated by [Y Centre]; and

   (ii)from 10:00 am. until 5:00 pm. on Sunday or such other times as can be accommodated by [Y Centre];

   (f)on the third weekend in September and November 2010, from 10:00 am. on Saturday until 5:00 pm. on Sunday or such other times as can be accommodated by [Y Centre];

   (g)from 10:00 am. on 4 January, 2011 until 5:00 pm. on 8 January, 2011;

   (h)on the fourth weekend in each school term in 2011, from 10:00 am. Saturday until 5:00 pm. Sunday;

   (i)for five days and four nights in the first term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

   (j)for six days (including five nights) in the second term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

   (k)for eight days (seven nights) in the third term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

   (l)for ten days (nine nights) in the summer school holidays in January 2012 at times to be agreed and, failing agreement, to commence at 10:00 am on 4 January, 2012 and conclude at 5:00 pm. on 14 January, 2012;

   (m)thereafter:

   (i)for one half of each school term holiday period at times to be agreed and, failing agreement, the first half;

   (ii)for two weeks in each summer school holiday period at times to be agreed and, failing agreement:

   (x)commencing on Christmas Eve in 2012 and each alternate year thereafter; and

   (y)commencing on 9 January, 2014 and each alternate year thereafter; and

   (iii)    at such other times as are agreed between the parties.

   (6)    That commencing in 2010, the father communicate by telephone with [D] and [E] on alternate Sundays at 5:00 pm. and the mother do all things reasonably necessary to facilitate [D] and [E] receiving those calls and keep the father advised of a telephone number on which he can telephone [D] and [E].

   (7)    That changeovers for time pursuant to paragraphs (5)(a) to (f) and 5(h) be supervised by [Y Centre].

   (8)    That the father’s time with [D] and [E] pursuant to paragraphs (5)(a) to (e) hereof take place in the vicinity of [N].

   (9)    That the father’s time pursuant to paragraphs (5)(f) and (h) hereof take place in the vicinity of [N] or within a radius of forty (40) kilometres of [N].

   (10)  That time pursuant to paragraph (5)(g) hereof and all time pursuant to paragraphs (5)(i) to (m) hereof take place at the father’s home or such other place as he determines.

   (11)  That the father be responsible for the costs of [D] and [E]’s travel to his home or such other place at which he spends time with them pursuant to these orders, including the costs of any accompanying person in the event the children need to be accompanied when flying.

   (12)  That if [D] and [E] are to travel by air, the mother be responsible for delivering the children to, as the case may be, Avalon Airport or Tullamarine Airport, at the commencement of a period of time with the father and collecting them there at the conclusion of a period of time with him. 

   (13)  That if [D] and [E] are to travel by car to the father’s home or such other place as he spends time with them, the father collect and return them to a place agreed between the parties and, failing agreement, outside the [N] Police Station.

   (14)  That the mother keep the father advised in writing of:

   (a)the residential address of the children;

   (b)the school or schools attended by the children; and

   (c)a telephone number at which she can be reached in an emergency; and

   advise him forthwith, by telephone, of any significant illness or accident suffered by [D] or [E] when in her care.

   (15)  That the father keep the mother advised in writing of:

   (a)his residential address; and

   (b)a telephone number at which he can be reached in an emergency; and

   advise her forthwith, by telephone, of any significant illness or accident suffered by [D] or [E] when in his care. 

   (16)  That the father be at liberty to send cards and small gifts to [C], [D] and [E] by post on their birthdays and at Christmas and Easter and the mother ensure any such cards and gifts are delivered to the children.

   (17)  That the father be at liberty to obtain, at his expense (if any):

   (a)a copy of each school report for [C], [D] and [E]; and

   (b)a copy of each order form for school photos of [C], [D] and [E];

   and this order shall stand as authority to the principal of each school attended by [C], [D] and [E] from time to time to comply with such requests. 

   (18)  That save with the written consent of the mother, the father be and is hereby restrained from attending at any school attended by [C] from time to time, unless [D] and/or [E] also attend that school, and then only pursuant to paragraph (19) hereof.

   (19)  That from 2011 the father be at liberty to attend a school attended by [D] and/or [E] for an event, activity or function routinely attended by parents PROVIDED THAT save with the consent in writing of the mother, he not remove [D] or [E] from such school.

   (20)  That as soon as practicable the mother provide a sealed copy of this order to the principal of each school attended by [C] and, in due course, [D] and [E]. 

   (21)  That each of the parties by themselves, their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of [C], [D] or [E]. 

   (22)  That the independent children’s lawyer be discharged one month this date or, in the event a Notice of Appeal is filed, on determination of the appeal. 

   (23)  That a copy of the reasons for judgment herein may be provided to:

   (a)[Mr S];

   (b)[Y Centre];

   (c)[Ms T]; and

   (d)the Department of Human Services and any DHS employee or member of a police force investigating any subsequent allegation which involves [C], [D] or [E].

   (24)  That all extant applications be otherwise dismissed.

   (25)  That these proceedings be removed from the List of matters awaiting finalisation.

   (26)  That pursuant to s.62B and s.65DA(2), 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 who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

   (27) That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

10. On 5 May 2009 the Father filed a notice of appeal against the orders of Brown J and he seeks the following:

    1.      That the order made on 8^th April 2009, paragraph (3) be dismissed.

    2.      That [C] spend time with the father as follows

    A) For 2 hours supervised contact on the 18^th July 2009, 19^th September and 21^st November 2009 and for 2 hours supervised contact on the third weekend in January, March and May 2010.

    B) For [C] to move to unsupervised time in May 2010 in accordance with the orders by Justice Brown paragraphs 5(a) to (m)

    3.      For the orders paragraph 6, 8, 11, 13 and 14 to be varied to include [C].

11. The Father is appealing against the failure of Brown J to make any provision for the child C to spend time with him.  The Father obviously feels aggrieved by this outcome given that the contentions of the Mother that the Father had sexually abused the three children were rejected.  Both Murray and Brown JJ, in separate judgments, formed an unfavourable view of the Mother.  It was found that the Mother wrongly sought to prevent any relationship between the Father and the three children.  However, as Brown J observed at [173] of her reasons: “The mother is the uncontested resident parent”.

12. There is also before us an application in an appeal filed by the Father on 21 September 2009 in which he seeks: “A letter from my daughter [sic] school … explaining that [the child C] is unable to email outside the school, due to the school firewall preventing all outside access”.  In support of the application an affidavit was sworn by the Father on 21 September 2009. 

13. The Father was unrepresented both at the hearing before Brown J and also before us.  Before her Honour the children were represented by an Independent Children’s Lawyer.  However, the Independent Children’s Lawyer did not appear before us.  As we have already observed at the outset of these reasons, this is an unfortunate case, and we understand that the Father may well find it hard to accept our conclusion that we are unable to interfere with Brown J’s decision.  With this consideration in mind, and having regard also to the Father’s self-represented status before Brown J and before us, we have endeavoured in these reasons to explain the lengthy and complex history of this case and the law (which is also not without its own complexity) as applied by Brown J, and then to consider as thoroughly as possible the Father’s complaints embodied in his 12 grounds of appeal and submissions in support of those grounds.  Regrettably, this task has taken time and resulted in considerable delay between the hearing of this appeal and delivery of our judgment.   

Background

1. Given the lengthy history we propose to set out a deal of the relevant background.  The reasons for judgment delivered on 26 June 2006 by Murray J and the reasons for judgment delivered on 8 April 2009 by Brown J provide a detailed history.  As well, an amended joint case summary document filed by the Mother on 20 March 2009 provides a detailed procedural chronology up until 2009.

2. In 1997 the parties commenced to live together in north Adelaide.  Murray J observed at [13] that the parties separated and then resumed living together in rented accommodation in Adelaide.  Murray J found that the parties commenced cohabitation from that point.

3. In 1999 the Father contracted Type II Diabetes which despite evidence of the Father that the disease diminished his sex life, Murray J found at [16] that the Father retained a strong “interest and involvement in pornography”.

4. The children of the parties were conceived using fertility treatment during which the parties stated that they were living together as a de facto couple.  

5. In February 2004 the Mother received a letter from Centrelink alleging that she owed $43,145.71 in overpaid benefits based on the Mother’s inaccurate statement to Centrelink, following the birth of the child C, that she was a single mother.  Murray J observed at [27] that the Mother obtained legal advice and feared going to gaol in relation to the fraud.

6. On 9 February 2004, following a conversation with an office of Centrelink dealing with the fraud, the Mother sought to provide written evidence from the paternal grandmother that the Father had been permanently residing with her.  On or about 16 February 2004 the paternal grandmother signed a letter, prepared by the Mother, in which it was stated that the Father had resided with the paternal grandmother for four years.  Murray J found at [30] that the contents of the letter had not been explained to the paternal grandmother, an elderly woman, who signed the letter without reading it.  On or about 23 February 2004 the Mother sent the letter to Centrelink.  The letter set out that the Father had been residing with his mother for four years.  Murray J observed at [31] of her reasons: “The letter is not before me in evidence.  There has been a great deal of evidence about it.  It goes to the question of credit as much as to the question of sexual abuse.  The incident does no credit to either party nor to [the paternal grandmother]”.

1. Murray J found at [34] that “the father knew that the mother was wrongly claiming Social Security benefits apart from the period when he was on unemployment benefits ie. between August 2001 to October 2003, but he acquiesced in her doing so”.   

2. The paternal grandmother retracted the letter by affidavit sworn on 19 August 2005 following notification from Centrelink that it had evidence contradicting the contents of the letter.  Murray J found at [32]: “that the mother was very angry about the retraction and blamed [the paternal grandmother] and the father’s family for her predicament”.  In July 2005 the Mother’s debt was recalculated using income details of the Father.

3. Murray J found at [36] that in early May 2000 the Mother and the Father discussed the possibility of a custodial sentence in relation to the Centrelink fraud.  The Mother asked the Father if he was willing to let her take the twins to gaol with her and let the child C live with the maternal grandmother.  Murray J found that “the father refused and told [the mother] that if she went to goal he would seek residence of all the children”.  The Mother then made plans to relocate to Melbourne with the children to live with the maternal grandmother.

4. Murray J observed at [38] that the Mother alleged that on 9 May 2005 the child C complained to her about the Father “touching her ‘on her bagina’ being the way she refers to her vagina” (italics in original).  Murray J observed that the Mother said that when confronted with the allegation the Father denied it.  In an affidavit sworn by the Mother on 9 March 2006 she deposed that this was the reason she left the Father.  Murray J said at [38]: “I decline to find that this was a major motivating factor”.

5. On 11 May 2005 the Mother collected the maternal grandmother from Adelaide airport.  Murray J observed at [39] that the Mother “withdrew $25,000 from the bank account, loaded a trailer with furniture, and drove with [the maternal grandmother] to Melbourne with the three children”.  Murray J found that the events of 11 May 2005 were undertaken without notification to the Father.  Murray J also observed that “it took the father a number of telephone calls to [the maternal grandmother]’s home and to the mother’s mobile to get to speak to the mother”. 

6. On 18 May 2005 the Mother telephoned the Father and told him the reason she had left was because she believed she would receive a custodial sentence in relation to the Centrelink fraud and that she wanted the children to reside with the maternal grandmother in Melbourne.  Murray J found at [41]: “that this [was] the major reason she left the father”.

7. During the telephone conversation on 18 May 2005 the parties discussed the question of contact between the Father and the children.  Murray J observed at [42] that the Father conceded that he told the Mother she could reside in Melbourne subject to the children spending time with the Father in Adelaide during school holidays, however, the Mother refused.  Her Honour observed at [43] that the Father threatened to take the Mother to court whereupon the Mother countered with a threat to tell the court about the “kiddie porn” (italics in original).  We also observe that her Honour said that if the Mother was referring to certain images that her Honour had referred to as the “child porn she believed the father had watched, then I find she threatened him without basis”.

8. We observe that Murray J found at [22] that prior to separation the Father “had been much involved with pornography, and frequently watched pornography on his television, both in and out of the mother’s presence, and sometimes with friends”.  The Father denied that he watched child pornography and Murray J was “unable to find that he does”.

9. On 24 May 2005 the Father drove to Melbourne and arranged with the Mother to see the children.  The Father arrived in the evening and the Mother told the Father the twins were asleep, however, she took the child C to a nearby park to see the Father.  Murray J found at [44] that the child C greeted her father “enthusiastically whereupon he bundled the child into the back of his car” and returned to Adelaide. 

10. On the morning of 25 May 2005 the Father and the child C arrived in Adelaide and the child was left in the care of the paternal grandmother.  The Father contended that he took the child C because “on the Sunday before, he had rung the mother’s home and heard [C] crying that she was being beaten”.  Murray J found at [44] that this was not the case and that the Father took the child C “on impulse” and because “he feared he might not see her again”. 

11. On 25 May 2005, in the Magistrates Court in Victoria, the Mother obtained a recovery order.

12. On 27 May 2005 the Father handed the child C to the Federal Police whereupon the child was returned to the Mother who, in turn, took the child for examination at U Hospital to determine if the child had suffered any physical or sexual abuse.  Murray J observed at [47] that the notes of this hospital dated 27 May 2005 are “important in that it states that there has been no bruising, bleeding or discharge from the vaginal region or from the anus. There were, however, two small bruises, one on the posterior left thigh and one on the interior left shin.  Nothing turns on the matter of bruising”.

13. Murray J noted at [49] “that in the original application filed by the mother in the [Victorian] Magistrates Court, she stated she had observed ‘the child suffered from a brown fungal activity in her genital area, similar to that with respect to which the father suffers also’” (italics in original).Murray J observed at [50] “that there is no mention of such fungal activity in the [U Hospital] notes” and replicated a section of the notes at [51], namely: “Vaginal/genital erythema, non specific and not associated with any suspicious infections.  No noted bruising, bleeding or skin rashes consistent with physical/sexual trauma. Anus – normal” (italics in original).  Murray J observed at [52]: “The mother’s allegation of a fungal infection emanating from the father is just one of a number of distortions of truth and exaggerations propounded by the mother and her mother throughout their evidence”.

14. Murray J observed at [48] that the Mother reported that the child C told her that “the father hit her head when he put her into the car and struck her once across the head in Adelaide”.  Murray J found that “the father did not do so, although he might have accidently bumped her head when putting her into the car”.

15. The Father then made an application in the Federal Magistrates Court in Adelaide in which he sought orders compelling the Mother to return to Adelaide with the children.

16. On 28 May 2005 the Mother made contact with the Gatehouse Centre (“Gatehouse”) at the Royal Children’s Hospital, her evidence being that she was referred to Gatehouse.

17. On 30 May 2005 the Mother filed the first notification of child abuse.

18. On 31 May 2005 an order was made in the Adelaide Registry of the Federal Magistrates Court that the Mother return the children to South Australia by 8 June 2005.

19. Brown J observed at [2] that by June 2005 the parties’ were locked in “acrimonious litigation in Adelaide” in which the Mother alleged that the Father had “sexually abused [C], physically abused her and the children, accessed child pornography and was emotionally abusive”.  The Mother made an application to relocate back to Melbourne with the children and that they have no further contact with the Father.  The Father opposed the Mother’s application to relocate the children to Melbourne and sought contact with them.  Brown J noted at [3] that by the end of a 16 day trial before Murray J the Father no longer sought to spend time with the child C, seeking only to spend time with the children D and E.

20. In June 2005 the Mother and the maternal grandmother reported allegations of sexual abuse by the Father to the police at an Adelaide Police Station.  On 14 June 2005 the police reported the allegations to the Child Protection Service at the Women and Children’s Hospital.  On 7 July 2005 a Child Protection Service expert, Ms O, interviewed the Mother and the child C separately.  Ms O interviewed the child C again on 8 July 2005 and the Father on 9 August 2005.

21. On 7 October 2005 a family consultant made observations regarding the child D and E who were at the time 18 months of age.  The family consultant interviewed the child C on the same date and then again on 10 October 2005.  A family report prepared by the family consultant was filed in Court on 18 November 2005 and was considered in the reasons for judgment of Murray J.  

22. On 27 March 2006 the child C was accepted into a waiting list with Gatehouse for counselling.

23. The trial before Murray J commenced on 3 April 2006 and concluded on 11 May 2006.  On 26 June 2006 Murray J pronounced judgment. 

24. In relation to the allegations of child sexual abuse, Murray J at [144] expressed doubts about the veracity of the child C’s disclosures but found that by October 2005 “[C] had developed a very genuine and real fear of her father” as the result of successful actions of the Mother and the maternal grandmother.

25. Murray J observed at [147]: “Because of all the inconsistencies, untruths and exaggerations in the evidence” as well as the “deficient expert evidence” of Ms O her Honour was unable to make a finding that the Father had sexually abused the child C.  Her Honour also found that the Father had not “vaginally or anally penetrated the child or masturbated in her presence nor placed his penis in her mouth”.

26. However, Murray J found at [148] that “on the balance of probabilities”, there was “an unacceptable risk of sexual abuse of [C] by the father, e.g. inappropriate sexual touching of the child.”  This arose from a finding that, on occasions, the Father and the child C played a game called “Torture” and another game called “Missiles” (which Murray J found harmless) in the bedroom with the door closed, while the Mother was in the kitchen.  Her Honour described the game “Torture” at [60] and it involved the Father chasing the child C, or she chasing him, and them pinching each other.  The Father conceded this was rough play and that he had pinched the child on her arms, stomach and inside thighs as well as on her bottom. 

27. Murray J found at [149] that there was not an unacceptable risk of abuse by the Father in respect of the children D and E.  However, having regard to her finding in relation to the child C, and the Father’s strong interest in pornography, her Honour leant towards “imposing a condition of supervision for any contact” ordered.  As noted above the Father’s application for residence and spending time with the child C were not pressed before Murray J and was subsequently dismissed.

28. On 18 July 2006, upon returning to Melbourne following Murray J’s judgment, the Mother had an intake appointment at Gatehouse. 

29. On 4 August 2006 the child C commenced an assessment at Gatehouse with Ms T, a social worker employed at Gatehouse, for the purpose of having the child assessed in respect of the alleged sexual abuse.  Ms T frequently met with the child C and they had 25 sessions up until 31 July 2007.  It was Ms T’s evidence that the initial eight sessions were to determine whether the child C had been exposed to or been the victim of sexual abuse or physical assaults.  Ms T also had two interviews with the Mother.

30. The Father’s time with the children D and E was to commence on 16 September 2006 subject to him completing a parenting course.

31. Brown J observed at [15]: “The mother failed to advise the father of the children’s residential address, as required by Murray J and effectively blamed her solicitors for the breach”. 

32. On 23 October 2006 the Independent Children’s Lawyer received a letter from the Father in which he advised that he had completed an application at the Children’s Contact Centre at Y Centre located in N and enclosed a certificate of completion of a parenting course.  In the letter, the Father expressed concern at Y Centre’s capacity to accommodate a two hour block of time only, instead of three hours specified in Order 4 of Murray J’s orders.  The Father asked the Independent Children’s Lawyer to intervene and persuade Y Centre to accommodate a three hour visit given that the Father was travelling from Adelaide in a round trip estimated to take about 18 hours.  The Father further advised in the letter that Y Centre could only accommodate supervised visitation for 12 months and that the Father would return to court in the intervening 12 months to have the orders changed in relation to spending time with the children.

33. On 31 October 2006 the Independent Children’s Lawyer forwarded a copy of the Father’s letter to the Mother.  The Independent Children’s Lawyer advised that he considered his duties discharged.

34. On 14 December 2006 Ms T wrote a report following an initial assessment over eight sessions with the child C.  In the report, Ms T said that the child C had disclosed oral, anal and penetrative sex perpetrated on her by the Father over a number of years and also made frequent disclosures of significant and unpredictable physical abuse.  It was further noted in the report that the child C was continuing weekly sessions as part of her long term treatment plan.  In her report, Ms T expressed a “strong recommendation” that neither the child C nor the children D and E have any form of contact with the Father.

35. Brown J at [100] described the report of Ms T as “remarkable” given that Ms T arrived at her conclusions, upon which her recommendations were made, despite having in her possession a copy of Murray J’s orders and a copy of the family report of November 2005, but had not read Murray J’s reasons for judgment.  Further, Ms T had made no enquiries about past medical examinations and saw no medical reports and thus was ignorant of the forensic examination in South Australia to which Murray J referred and the examination at the U Hospital in May 2005, the month in which the child C allegedly made her first disclosure.  Brown J observed that Ms T did not refer the child C for a medical examination despite acting on the basis of severe and sustained penetrative sexual abuse, including anal penetration, assaults which her Honour noted could reasonably be expected to result in injury.  In relation to Ms T’s evidence under cross-examination, Brown J found at [101] that Ms T lacked objectivity, the process undertaken flawed and her conclusions unreliable.

36. Brown J observed at [15]:

    [The Mother] told [Ms T] that the father had sexually abused all the children, despite the fact no allegation had ever been made at that time of any sexually inappropriate behaviour with [D] or [E].  She blamed [C] for telling the twins the father was going to put her in jail, despite [C] clearly telling [Mr S] that her mother told her that.  She maintained her view that the father does not love the children and is not interested in them, and if he gets what he wants will “walk away”, despite his attendance at contact on every occasion since Murray J’s orders were made.  She believes the father is capable of killing the children to punish her; pressed, she referred to him killing them “accidentally, in a car collision”.  I am satisfied she invented an allegation that the father took a photograph of [D]’s penis when spending unsupervised time, in a transparent attempt to undermine the father’s relationship with the twins.  A court could have no confidence in her capacity for objective recollection or her commitment to telling the truth. 

37. Brown J observed at [9] that in late 2006 Y Centre contacted the Mother on multiple occasions “to push the issue of the supervised contact to take place between the father and the twins”.  Her Honour observed that when “[c]ross-examined, the mother said it was ‘inconvenient’, because she had told [Y Centre] that there would be no supervised contact”.

38. Brown J also observed at [9] that when Ms T provided her report of 14 December 2006, the Mother “had not completed any application form or been for an intake interview” with Y Centre.

39. Brown J observed at [183] that the Mother’s evidence was that the Father had been abusive and intimidating since the Adelaide trial.  As an example, the Mother contended that in December 2006, when she would not agree to contact, the Father said that he would “take us all back to court and make us go back to South Australia”.  Her Honour said: “I am satisfied that the latter part of that evidence was pure invention and that there was never a threat to seek the return of the mother and children to South Australia”. 

40. On 22 December 2006 the Mother filed in the Family Court an application for final orders, which according to her evidence, was prompted by the receipt by the letter dated 31 October 2006 from the Independent Children’s Lawyer of the Father’s letter.  The Mother sought the following orders:

    1.      That the Family Court of Australia Orders dated 26 June 2006 be dismissed.

    2.      That the children of the relationship [C] born […] 2000 and [D] born […] 2004 and [E] born […] 2004 live with the Mother.

    3.      That the Mother be solely responsible or the long term care, welfare and development of the children.

    4.      That the Father’s contact with the children be reserved.

    5.      Such further and other Orders as this Honourable Court deems fit.

41. This application commenced the proceedings which were before Brown J.

42. Brown J was satisfied at [8] that the prospect of the Father bringing enforcement proceedings against the Mother or the possibility of him seeking to vary the orders of 26 June 2006 was not the Mother’s “principal motivation” for filing her application but rather the Gatehouse report of 14 December 2006.  Her Honour said at [10]: “From the mother’s perspective, Gatehouse had given her what Murray J’s judgment had not, which was proof (in her eyes) that [C] has been sexually abused.  Armed with that proof, she sought to achieve what she had failed to achieve before Murray J, which was no contact at all between the father and the twins”.   

43. Brown J also observed at [14] that in her affidavit filed with the application, the Mother “took the position that abuse was neither confirmed nor disproved by Murray J and that ‘provisions were made in the orders if the abuse was established at a later date’, an objectively absurd proposition.  I have no doubt that she believed she could stop the father seeing [D] and [E] if she could prove he had abused [C], and was determined to achieve that aim”. 

44. In December 2006 the Father met Mrs Malak and they commenced a relationship in February 2007.  At some point, the Father and Mrs Malak commenced to live in Sydney.  Mrs Malak was previously married “for many years” and has four children from that marriage, namely, V (15), A (13), L (10) and B (8).

45. On 18 January 2007 the Mother filed a second notice of child abuse.

46. On 22 February 2007 a Senior Registrar heard applications for interim orders and delivered a short judgment.  At that time both parties were represented.  The Registrar made the following orders:

    1.      That the Form 2 application of the mother filed 22 December 2006 be dismissed.

    2.      That the mother comply with paragraphs 4 and 6 of the orders of Murray J made 26 June 2006.

    3.      That pursuant to Section 68L(2) an independent children’s lawyer be appointed on behalf of the children [C] born […] 2000, [D] and [E] both born […] 2004 AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

    4.      That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

    5.      That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

    6.      That the costs of the father this day and of and incidental to this application be reserved.

    7.      That all extant final application be referred to the Trial Notice List on a date to be fixed.

1. Brown J observed at [108]:

   The Senior Registrar found nothing new in the allegations and that Murray J. had considered the risks to the twins when making her orders.  [C] had not seen the father since well before the Adelaide trial so there could be no allegations of fresh abuse.  The registrar concluded that he should not interfere with Murray J’s orders and ordered the mother to comply with the paragraphs of those orders relating to the father’s contact with the twins.

2. On 2 March 2007 the Mother attended an intake interview at Y Centre.  Brown J observed at [109] that the Mother told the manager inter alia that there were criminal charges pending against the Father in South Australia.  The Mother also said that she was concerned about the Father absconding with the children; that the Father had sexually abused all three children; that the Father had hit the maternal grandmother; and that all the children were subjected to the parental domestic violence.  Her Honour observed that when the Mother was cross-examined about this she agreed that no allegations of sexual abuse of the twins had been made in the Adelaide trial but said it was “always an assumption”.

3. On 6 March 2007 the Father filed his response to the application for final orders.  He sought numerous injunctions against the Mother and the maternal grandmother and that the Mother be declared a vexatious litigant.  He sought to commence to spend time with the children D and E as ordered by Murray J and to spend time with the child C at such times and on such conditions as the court deemed fit.  Only his application for parenting orders was pressed before Brown J.

4. On 17 March 2007 the first supervised contact session between the Father and the children D and E took place at Y Centre.  Brown J at [111] to [113] dealt with what happened.  The session report noted that the children “presented as comfortable with [the Father], regularly approached him during play and chatted with him”.  The Father “offered praise and encouragement and cuddled and kissed them during contact”.  Brown J also observed that given the Father had not seen the children for a period that extended some 21 months (save for two brief periods) “the positive interaction between father and sons is noteworthy”.

5. By letter dated 12 April 2007, Ms T received from the Independent Children’s Lawyer a copy of the reasons for judgment of Murray J.  Brown J observed at [14] that the Mother “did not, as she swore” give a copy of the reasons to Ms T.

6. On 16 June 2007 the second supervised contact session between the Father and the children D and E took place at Y Centre.  Brown J at [114] referred to what happened during this session.  Her Honour observed that the session report noted inter alia that the boys separated easily from the Mother and they “greeted their father with a hug”.  

7. On 19 September 2007 the third supervised contact session between the Father and the children D and E took place at Y Centre.  Brown J at [115] referred to what happened during this session.  Her Honour observed that the session report described inter alia a “comfortable and happy interaction between the father and boys”. 

8. In November 2007 Mrs Malak’s daughter, L, made allegations of child sexual abuse perpetrated by the Father involving herself and her sister A.  When the child A denied these accounts and the child L was challenged, she said that maybe it had been a dream.  In any event, Mrs Malak called the police.  Brown J observed at [117] that Mrs Malak “was sceptical about the allegations from the outset, particularly as [A] (then about 12) is a very light sleeper, and at that time [L] was being very disruptive and seeing a number of counsellors.  However, Mrs [Malak] also thought that the allegation needed to be investigated and that it was important [L] understood how serious it was”.  Brown J observed at [118] that the child L was not supported by the child A and ultimately the police and the Department of Human Services (“DHS”) took no action.  Her Honour found at [121] that there was no substance in the allegations made by the child L in November 2007.

9. On 16 December 2007 the fourth supervised contact session between the Father and the children D and E took place at Y Centre.  Brown J at [122] referred to what happened during this session.  Her Honour observed that the contact session proceeded in a similar manner to the previous sessions with “the children relating well to each other and with their father”.

10. On 23 January 2008 the parties’ applications for final parenting orders were listed for the first day of the trial.  On that day the following orders were made by consent:

    1.      That paragraphs (4) and (6) of the orders made by the Family Court of Australia at Adelaide on 26 June 2006 be discharged.

    2.      That the father spend time with the children [D] and [E] both born […] 2004 as follows:

    a.on one occasion every two months on dates and time to be agreed in consultation with the [Y Centre] in [N] (“[Y Centre]”)

    b.for three hours at the [Y Centre], supervised by the said service;

    c.immediately following the time provided for in paragraph (2)(b) hereof, for two hours in the [N] metropolitan area on an unsupervised basis;

    d.all changeovers shall take place under the supervision of, and at, the [Y Centre].

    3.      That the father keep the mother informed of his residential address.

    IT IS FURTHER ORDERED

    4. That pursuant to s.62G of the Family Law Act 1975 a Family Report be prepared, the date or dates for the attendance of the parties and children to be fixed in consultation with the parties and to coincide with an occasion on which the father is to spend time with [D] and [E] in July 2008 PROVIDED THAT:

    a.it shall be within the absolute discretion of the family consultant as to whether he observes the father with the child [C] born […] 2000; and

    b.the Family Report be released by 29 August 2008.

    5.      That the independent children’s lawyer have leave to file and serve subpoena addressed to the Gatehouse Centre and to [Y Centre].

    6.      That the father have leave to issue a subpoena addressed to South Australia Police.

    7.      THAT IT IS REQUESTED that [Y Centre] prepare a report in respect of the time the father has spent with [D] and [E] from the time supervised contact commenced in 2007, and such report be prepared after the father has spent time with [D] and [E] in May 2008, and be provided as soon as practicable thereafter to the parties and to the court.

    8.      That all extant applications be otherwise adjourned for a mention by telephone at 9:30 am. on 5 September, 2008, and provided they are legally represented, the parties be excused from attendance.

    9.      That there be general liberty to apply on written notice to the other parties.

    IT IS DIRECTED:

    10.    That pursuant to s.62B and s.65DA(2), 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 who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

    IT IS CERTIFIED:

    11. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

    AND THE COURT NOTES

    It is intended that the father’s time shall involve the father alone with the children and no other persons.

11. Brown J was asked to determine the Mother’s application filed 22 December 2006 and the Father’s response to it.

12. Brown J observed at [125] that until 23 January 2008, “putting aside the long gap prior to its commencement, contact had gone very well”.

13. On 15 March 2008 the fifth supervised contact session took place followed by two hours of unsupervised time. Brown J dealt with what happened at [126]. Her Honour observed that the interaction between the Father and children at Y Centre was positive with nothing unusual in the children’s presentation on their return from unsupervised time when the children D and E each gave the Father “a hug and kiss goodbye before animatedly informing their mother of the toys he had bought them”.

14. On 17 May 2008 the Father arrived at Y Centre for the next scheduled contact session.  Brown J dealt with what happened at [127] to [129].  Her Honour observed that the Father was advised that the Mother’s solicitor had written to Y Centre advising that the Mother “was no longer going to attend on a Saturday, but could not discuss why”.  This occurred despite the Father receiving on 5 May 2008 a letter dated 3 May 2008 from Y Centre confirming the time and date of the next agreed supervised contact.  As her Honour observed the Father had “made the nine hour drive to [N]”.  The Father was living in Sydney.

15. On 21 May 2008 the Father received a letter from the Mother advising she had commenced work.  Brown J observed at [128] that “it transpired that it was a new job which had interfered with the contact on 17 May”.

16. In June 2008 Mrs Malak gave birth to a daughter K.

17. On 4 June 2008 the Father filed an application and on 18 June 2008 a response was filed by the Mother.  On 20 June 2008 interim orders were made, by consent, which provided for the Mother to provide make-up time to the Father.  Arrangements were to be made by the Father with 7 days notice given to the Mother.  The Father was to nominate the date being a date after 28 June 2008 and agreed in consultation with Y Centre and a further order provided “otherwise in accordance with paragraph 2 of the orders made by the Family Court of Australia on 23 January, 2008”.  Brown J observed at [131] that “the order is a little hard to decipher but I am satisfied the intent was to give the father makeup time (to compensate for the cancelled May visit) on a day on which he would routinely be seeing the children”.

18. On 19 July 2008 the Father was scheduled to have the sixth supervised contact session and the second period of unsupervised time.  The Father also contended that he was to have the make-up time.  Brown J dealt with what happened at [132] to [138].  Her Honour observed at [132]: “A great deal of evidence went to events of this day and the various accounts were inconsistent and confusing”.  It is not necessary for us to repeat all of what happened.  However, the Father informed Y Centre that he would be exercising his rights pursuant to court orders to take the children for a two hour unsupervised period.  The Father was told this could not occur because Y Centre could not facilitate a two hour changeover.  The Father said he would drop the boys back at the police station, if the return changeover could not be facilitated by Y Centre. 

19. The Father also advised that his partner and new-born child had travelled with him from New South Wales to meet the children D and E and spend some time with them before a court assessment on the following Monday.  Appointments had been made for the Father to meet with the family consultant at the Melbourne Registry on the Monday after the contact visit on 19 July 2008.  The Father had received the standard letter from the court which provided some information about the assessment and noted that “other members of your family or immediate household may also be required to attend”.  From this, the Father inferred that Mrs Malak would be required to attend and that it was vital that the children D and E meet her and her children, and the child K, prior to that attendance.

20. Brown J observed at [137] to [138]: “In the face of sustained opposition from the manager, executive manager and the mother, the father left with [D] and [E] at 1:00 pm and … returned the children at 2:15 pm”.  Her Honour observed at [134]: “What occurred on 19 July, 2008 reflects well on neither party, but reflects particularly badly on the father”.

21. Brown J also dealt with at [139] to [145] what was described as the “Photo allegation”.  The Mother’s evidence was that the child D told her that during the unsupervised time with the Father on 19 July 2008, the Father “took a photo of his penis when he was sitting on the toilet at [a restaurant], after soiling his pants”.  The Mother repeated this account to the family consultant who she saw on 21 July 2008, and again in her affidavit sworn on 2 December, 2008.  Under cross-examination, the Mother maintained the allegation however, deposed it was the child E who made the disclosure which was repeated by the child D despite conceding that the boys denied to her and the police that a photograph had been taken whilst maintaining that the Father had coached the children D and E to deny it.

22. Brown J also at [142] referred to evidence of the maternal grandmother of hearing the child D “talking about the photograph when he was in the back seat of the car” and recalling the “twins laughing when it was said but did not recall [E] saying anything”.

23. Brown J observed at [143] that the Father learnt of the allegation when he saw the family consultant on 21 July 2008 and he denied the allegation and “was never questioned by DHS or police” in relation to the allegation.  The allegation lead to a DHS and police investigation with police from Sexual Offences Child Abuse Unit interviewing the children D and E and the child C.  DHS workers also spoke with the child C.

24. Brown J had no hesitation in accepting Mrs Malak’s account of the unsupervised time on 19 July 2008 and the Father’s evidence.  Her Honour found at [144] that the Father did not take a photograph of either child’s penis in the toilet or in any way deal sexually inappropriately with either of the children on 19 July 2008.  Her Honour also said at [139]: “I have no hesitation in finding this is a malicious allegation”.

25. Brown J had the benefit of a family report that was released on 28 August 2008.  The family report was prepared by Mr S, Family Consultant.  Her Honour at [146] to [156] referred to the contents of the report and also evidence given by the family consultant in cross-examination.

26. In the family report it was recommended:

    ·       The children continue to live with the Mother;

    ·       The children D and E cease to spend time with the Father on a supervised basis and continue to spend increasing periods of unsupervised time with him progressing initially to whole days, with the changeovers to occur at Y Centre every two months;

    ·       The children D and E be introduced to Mrs Malak and have the opportunity to meet and interact with her children and particularly their youngest sister K during unsupervised visits;

    ·       After three such visits, being over a period of six months, the Father’s time with the children D and E progress to two consecutive days on a weekend every two months;

    ·       The child C commence spending periods of supervised time with the Father in accordance with the services provided by Y Centre with such periods to coincide with the weekends that the Father sees the children D and E and the children D and E to be present during those sessions if deemed appropriate by the staff at Y Centre;

    ·       The child C be referred to individual counselling specifically to assist her as she adapts to the recommencement of her relationship with the Father and that reports from the staff at Y Centre be made available to her counsellor;

    ·       After a period of six months, Y Centre prepare a progress report in respect of the Father’s time with the child C “in order to assist in determining whether it would then be appropriate for any unsupervised time to commence”; and

    ·       The Mother undertake individual therapeutic counselling to assist her in relation to her concerns regarding the children and the implementation of orders of the court.

27. On 20 September 2008 the sixth supervised contact session and third period of unsupervised time occurred.  Brown J dealt with this occasion at [157] to [159].  The Father was observed to interact with the children on a positive level and upon their return from unsupervised contact the twins gave the Father a goodbye hug. 

28. During the unsupervised time on 20 September 2008 the Father “interrogated” the children D and E and subsequently tendered a tape recording he made of the conversation.  Brown J stated at [158] that it reflected “poorly on him”.  The motivation for what the Father did was because the children had said something to him about the maternal grandmother hitting them on the previous occasion.  The recording included questions relating to the boys being hit by their grandmother, a few about being hit by the Mother and some about the occupants of their home.  Her Honour concluded at [159]: “It is understandable that the father was angry and frustrated about the photo allegation, which was blatantly strategic and completely untrue.  Nevertheless, this interrogation was unnecessary and potentially stressful and implicated the boys in the dispute between their parents”.

29. A report dated 9 November 2008 was prepared by Ms N, the manager of Y Centre.

30. On 15 November 2008 the seventh supervised contact session and fourth period of unsupervised time occurred.  Brown J observed at [160] that the evidence of Ms N was that the visits “had been unremarkable”. 

31. Brown J observed at [160]:

    On 15 November, 2008 the Father had advised that during his unsupervised time with the children, a car parked near the park in which they were playing, and the boys told him that police were coming to take him away.  Asked why, they said that “mum said that”.  It is clear that the mother is very concerned about the potential for the father to abduct the children and this stems, no doubt, from the circumstances in which the father took [C] soon after separation in 2005.  Nothing in the evidence satisfies me that the children are at risk in that way when with him.  

32. On 21 November 2008 the Father and Mrs Malak were married.

33. Soon after their marriage, the Father and Mrs Malak commenced to live in regional New South Wales.  Brown J observed at [24] that the move to regional New South Wales “was designed to put some distance between [Mrs Malak] and [Mr P] (who lives in [Sydney]), while being close enough to facilitate a shared parenting routine with their three younger children” namely A, L and B. 

34. The trial before Brown J continued on 15 December 2008.  However, the Independent Children’s Lawyer sought an adjournment as information was received that either the Department of Community Services of New South Wales or New South Wales Police were investigating another allegation of the Father’s inappropriate sexual behaviour with a child.  The enquiries made by the Independent Children’s Lawyer revealed that the allegations made at the time were old allegations which the Department of Community Services and the police did not believe warranted investigation.

35. On 17 December 2008 Brown J delivered judgment in relation to the application to adjourn the trial.  Her Honour made interim orders which provided for the Father to spend 15 minutes with the children D and E on 18 December 2008, supervised by a family consultant, for the purpose of giving the twins Christmas presents.  The hearing was adjourned to 16 January 2009.

36. On 17 December 2008 the child V returned to live with his mother, siblings and the Father.  Brown J observed at [23] that the child V “had a turbulent time since his parents’ separation and was sufficiently aggressive to his mother, siblings and the father to warrant a magistrate granting an application for an apprehended violence order in 2008”.  Her Honour said that for some time he lived with his father and with others but after he resumed living with his mother he returned to school and Mrs Malak deposed that he “is happier and more stable”.  Her Honour observed: “He faces a charge of breaching the apprehended violence order; the conduct constituting the alleged breach occurred well prior to his return to live with his mother”.

37. The trial resumed on 16 January 2009 and continued on 19 and 20 March 2009.

1. On 17 January 2009 the eighth supervised contact session and fifth period of unsupervised time occurred which Ms N gave evidence was “unremarkable”.

2. On 8 April 2009 Brown J pronounced judgment.  On 5 May 2009 the Father filed his notice of appeal.

3. By letter dated 17 July 2009 the principal of the child C’s school wrote to the Father referring to a discussion which the principal and the Father had and advised: “I have checked on the email protocol for students.  The student can email each other but the security settings do not allow them to access addresses outside the education cache”.  In his affidavit of 21 September 2009 the Father attached a copy of the letter from the school principal and contended that it was explained that the child C is unable to email outside the school as Brown J suggested in her orders of 8 April 2009.  The Father contended that this information was not available at the hearing before her Honour “and the possible difficulties for my daughter to establish contact if she chooses to do so”.  The Father contended that “[w]ith the ongoing litigation and the mother’s attitude towards me, it is very unlikely that she will provide my daughter with any other type of contact information, such as address and telephone number for my daughter to be able to contact me.  This is why it is important to adduce further evidence before the full court as to the difficulties with your honour [sic] orders” (paragraph 2).

4. At the time of the hearing before Brown J the Father was undertaking Helpdesk work for a company which provides services to home users of computers and involves working from home as well as attending clients at their homes within an 80 kilometre range.  Mrs Malak was employed as a personal care assistant in aged care, working six, ten hour shifts in one week and having the next week off.  The three children A, L and B are with their father Mr P in the week in which Mrs Malak was in paid work.

5. At the time of the hearing before Brown J the Mother was employed at a call centre, working Monday to Friday.  For a period she worked on a Saturday, which as mentioned earlier Brown J observed at [128] was her rationale for cancelling a contact visit in May 2008. 

The Reasons Of The Trial Judge

1. After some introductory remarks, Brown J dealt with the following matters under the following headings. 

Witnesses

1. Brown J dealt with the evidence of the Mother at [12] to [15].  Her Honour observed at [13]: “[The Mother] presented as composed, even glib, but a sense of repressed anger permeated her evidence.  She was relentless in her campaign to prove the father sexually abused [C] and should see none of the children and I am satisfied she was prepared to do and say anything to achieve those aims”.  Her Honour found at [15]: “A court could have no confidence in [the Mother’s] capacity for objective recollection or her commitment to telling the truth”. 

2. Brown J dealt with the evidence of the maternal grandmother and said at [16] that she placed “little weight on [the maternal grandmother]’s evidence of disclosures allegedly made by [C]”.

3. Brown J dealt with the evidence of the Father at [17] to [21].  Her Honour said at [20]: “I do not doubt his commitment to do whatever is necessary to develop his relationship with his sons and start to see [C]; I find no substance in the mother’s opinion that he neither loves nor cares about the boys”.  At [21] her Honour said “I am satisfied he did his best to tell the truth as he now recalls it and find him a more reliable witness than the mother”.

4. As to Mrs Malak, Brown J said at [22] that she “was an impressive witness; she made appropriate concessions, answered questions directly and without qualification and presented as a thoughtful woman.  I find her a witness of truth.  She told the court: ‘I won’t lie for him (the father)’ and I accept that is her position”.

5. Brown J at [26] to [29] made some observations about the evidence of Ms N.  Her Honour observed at [27] that “the father had never displayed any aggression to workers or the children and that having regard to the consistency and quality of his relationship with the children, the centre decided to maintain its service”.  Her Honour observed at [29] that even on the occasion of the incident in July 2008 the Father “did not raise his voice or act in an aggressive way;  he simply stated his position and that he intended to act on it, regardless of the consequences”. 

6. As to Ms T, Brown J observed at [30]:

   It is probable she identified swiftly and completely with the mother’s stated position and was keen to adduce evidence supportive of it while ignoring any evidence to the contrary”.  Her Honour said: “I cannot find her an impartial witness.  The opinions she expressed were based on a significantly flawed history and I do not place weight on them”.  At [102] her Honour found that [Ms T] “was not an impressive witness.

7. At [31] to [33] Brown J dealt with the evidence of Mr S which we refer to elsewhere in our reasons.

Proposals

1. Brown J at [34] to [45] described the proposals of the parties and the Independent Children’s Lawyer. 

2. Brown J observed at [34] that the Mother’s case was conducted on the basis that the Father should have no time with either the children C or D and E.  However, in final submissions the Mother proposed a continuation of the existing interim orders made on 23 January 2008 relating to the children D and E, which provided for three hours of supervised time, followed by two hours of unsupervised time, every two months.  Her Honour observed that the submission “did not engage with the practicalities of the proposal” and importantly “did not consider the viability (or lack of it) of long term supervision”.  The evidence from Y Centre was of an ability to provide a supervised service for only some six to 12 months.

3. Brown J observed at [35] that the Independent Children’s Lawyer drafted a proposal which was provided to counsel for the Mother and to the Father prior to final submissions commencing.  Her Honour observed at [36] that the Independent Children’s Lawyer submitted that there were “no new facts or circumstances which would justify changing the situation” in relation to the child C.  Further, that the court should not make any orders providing for the child C to spend time or communicate with the Father. 

4. Brown J observed at [37] that in relation to the children D and E, the Independent Children’s Lawyer proposed a four phased regime which her Honour described as follows:

   37.    In relation to [D] and [E], the ICL proposed a four phased regime.  Phase one would operate for the balance of 2009.  In May and July the father should spend four hours of unsupervised time with [D] and [E], extending to six hours on one day in September and November.  All changeovers would be at [Y Centre]. 

   38.    In the second phase, [D] and [E] would spend time with their father in each second month, from 10:00 am. to 4:00 pm. on Saturday and 10:00 am. to 4:00 pm. on Sunday.  On the last such weekend in 2010, the boys should be with him on Saturday until 4:00 pm. on Sunday; that is, a first overnight stay. 

   39.    In the third phase, [D] and [E] should spend four days and three overnight periods with their father in the January school holidays.  In the first term holidays they should spend four nights and five days with him; in the second school term holiday period, five nights and six days; in the third school term holiday period, seven nights and eight days.  The holiday time would be conditional on the father coming to Melbourne for one weekend in each school term, and spending time with [D] and [E] from 10:00 am. Saturday until 4:00 pm. Sunday. 

   40.    In the final phase the ICL proposed that [D] and [E] spend ten days with their father in the summer school holidays in January 2012 and, thereafter, two weeks in each long summer holiday period.  They should spend half of each school term holiday with him.  While orders could provide for him to see the boys in Melbourne in mid-term, that would not be a requirement.

   41.    The ICL proposed telephone contact on alternate Sundays at 5:00 pm. from the beginning of 2010.

5. Brown J observed at [42] that having been advised of the Independent Children’s Lawyer’s proposal, the Father did not take issue with it as it related to the children D and E.  However, the Father submitted that the child C should spend time with him and that he was content for their initial time together to be supervised.  The Father proposed that after 12 months of supervised time, another report should be prepared and the court should determine whether unsupervised time with the child C would be appropriate.  Her Honour said that the Father made it clear that the child C’s “wishes should be honoured” if she did not want to see him on any given day.  Her Honour also observed at [43] that as the orders the Father proposed for the child C would involve the Father travelling each second month to spend supervised time with the child, the Father proposed that the unsupervised time with the children D and E follow the periods of supervised time with the child C in N for the 12 months following the orders as he would be travelling to Y Centre every second month.

6. The Father also sought an order that the Mother provide him with copies of the children’s school reports and photographs, including reports and photographs relating to the child C.  Brown J observed at [45] that the Mother opposed any such order in relation to the child C.  The Mother would consent to an order which provided that the child C could correspond with the Father by cards or letters, if, and only if, “[C] felt it right”.

New facts and circumstances

1. Commencing at [52] Brown J considered whether there were any new facts and circumstances since the judgment of Murray J. 

2. Brown J observed at [52] that the Mother “relied on the evidence of [Ms T] as the new facts and circumstances which warranted a reopening of the question of the father’s time with [D] and [E]”.  It was submitted to her Honour that if the Mother failed to satisfy the court that those new facts and circumstances existed then the Father should not be allowed to relitigate the question of his time with the child C, or seek any variation to the orders relating to the children D and E, as the Father himself had not advanced any new facts and circumstances which would justify that course.  Her Honour observed at [53] that the Mother submitted that “absent new facts and circumstances relied on by [the Father] at the time he filed his response, a finding that [the Mother] had not satisfied the onus should mean that the court go no further”.

3. Brown J observed at [54] that while maintaining this argument in final submissions, counsel for the Mother conceded its weight was affected by the fact that the Mother sought, as final orders, a continuation of interim orders relating to the Father’s time with the children D and E which were made in the course of the proceedings, and that she did not seek their discharge and a reversion to the final orders made by Murray J.  Further, the Mother relied on evidence of events which allegedly occurred in July 2008 when seeking to discharge all orders for the Father to spend time and communicate with the children D and E, alleging – for the first time – sexually abusive conduct by the Father towards the child D. 

4. Brown J noted at [55] that the Father “was not legally represented and, understandably, did not really grapple with this submission”.  Her Honour said that if the Father had, “he might have made submissions referrable to the necessity for variation to the orders, given that, on their face, they provide for supervision of all his time with his sons until they turn eighteen” which is “neither viable nor practicable”.

Legal principles

1. Brown J referred to various authorities, including Moose and Moose (2008) FLC 93-375 per the Full Court (Boland J with whom May and O’Reilly JJ agreed); SPS and PLS (2008) FLC 93-363 per Warnick J and Miller and Harrington (2008) FLC 93-383 per the Full Court (Warnick, Boland and Murphy JJ).

Conclusion - New facts and circumstances

1. At [67] Brown J observed: “Thus, the question for this court is whether, in the present circumstances and having regard to changes in circumstances since June 2006, the best interests of the children require that the orders of June 2006 be reconsidered”.  Her Honour concluded:

   68.    The father’s circumstances have changed substantially since June 2006.  He has formed a new relationship and married his present wife.  She has four children of her own and they have a daughter, [K], who is now ten months.  He lives in New South Wales, not South Australia.  Albeit later than envisaged by Murray J., he has re-established his relationship with his sons. 

   69.    The children’s circumstances have changed.  [D] and [E] are now almost five.  The father has had unsupervised time with them, something not envisaged by Murray J’s orders, and the mother does not now seek to stop their unsupervised contact.  Based on the family report, it is arguable that [C], who had not seen the father for over two years when the interviews were held in October 2008, is no longer frightened of him and that she responded warmly and comfortably to him.

   70.    On one analysis, the mother’s circumstances have not changed.  She lives in Victoria, as envisaged by Murray J’s orders, and maintains her conviction that [C] has been sexually abused by the father.  However, by asking the court to vary the original orders, which provided for the father to have only supervised time with [D] and [E], and make orders providing for him to have supervised and unsupervised time with them, the mother tacitly acknowledges that the best interests of [D] and [E] require a reconsideration of the time they spend with their father. 

   71.    [Y Centre] has supervised contact for longer than is its usual practice and is prepared to continue for another year, at most.  At some point, absent agreement between the parties, the father could reasonably ask the court to consider the duration and practicality of continuing supervision and whether it was in the best interests of [D] and [E]. 

   72.    I am satisfied that the best interests of all three children require the court to consider their present circumstances and make final orders which are in their best interests now and that the court’s capacity to do so is not dependant on the mother satisfying the court that [Ms T]’s evidence establishes a change of circumstances or a new factor.  

Reasons for judgment of Murray J

1. Then at [73] to [96] Brown J dealt with the reasons for judgment of Murray J and commenced by observing at [73]:

   The court has always been able to take into account findings in earlier litigation between the parties, a proposition given statutory force in s.69ZX(3) of [the Act].  I do adopt the findings made by Murray J. on 26 June, 2006.  In those circumstances, it is useful to summarise them. 

   Thereafter, Brown J referred to a number of findings made by Murray J, some of which we have already referred to. 

Mother’s contact with Gatehouse Centre

1. Brown J at [97] to [106] dealt with what she described as “Mother’s contact with Gatehouse Centre: 28 May, 2005 to 31 July, 2007”.  In so doing her Honour came back to the evidence of Ms T.  Her Honour was very critical of the role of Ms T and what she said in her report of 14 December 2006.  We observe that her Honour said at [101]:

   After [Ms T] was cross-examined, counsel for the mother conceded that her evidence had not been as envisaged; this was a tacit acknowledgement of the probability the court would find [Ms T] to lack objectivity, the process undertaken flawed and her conclusions unreliable.  I do so find.

Orders of Registrar

1. Brown J at [107] to [109] dealt with the orders made by a Registrar on 22 February 2007 and at [110] the Response filed by the Father on 6 March 2007. 

Father’s attendances at contact sessions and other matters

1. Thereafter, her Honour dealt with at [111] to [160] what happened at the contact sessions commencing on 17 March 2007; the allegations made by the child L; the photograph allegation concerning the child D; and the family report.

Primary considerations

1. Brown J at [161] to [167] dealt with the primary considerations in s 60CC(2) of the Act.

Additional considerations

1. Brown J commenced at [168] to deal with the additional considerations in s 60CC(3) of the Act.

Section 60CC(3)(a)

1. As to the additional consideration in s 60CC(3)(a) of the Act, being any views expressed by a child and any factors, such as the maturity or level of understanding of a child, that the court thinks are relevant to the weight it should give to the views of a child, Brown J at [168] dealt with the child C. As to the children D and E her Honour observed at [169]: “[D] and [E] are too young for their views to be determinative; it is their attachments which are more important”.

Section 60CC(3)(b)

1. Brown J dealt with at [170] to [173] the additional consideration in s 60CC(3)(b) of the Act being the nature of the relationship of a child with each of a child’s parents; and other persons.

2. Brown J found at [170] that she was satisfied that the relationship of the children D and E with the Father “has developed into an appropriate, affectionate and meaningful one”.  Her Honour also found at [172] that although Mrs Malak has not spent much time at all with the children D and E, her Honour was satisfied that Mrs Malak “would deal with them in a sensitive and appropriate way and manage their interactions with her children, and with [K]”.

3. Brown J then at [173] dealt with the relationship of the Mother with the children and observed: “Her own evidence was that just because she does not get down on the floor and play with the children, does not mean they do not interact with her, and there is no reason to doubt the strength of the relationship between [D] and [E] and their mother”.

Sections 60CC(3)(c), (f) and (i) and ss 60CC(4) and (4A)

1. Brown J dealt with at [174] to [177] the additional considerations in s 60CC(3)(c), (f) and (i) of the Act. These are the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between a child and the other parent; the capacity of a child’s parents and any other person to provide for the needs of a child, including emotional and intellectual needs; and the attitude to a child, and to the responsibilities of parenthood, demonstrated by each of the parents. Her Honour also dealt with the matters in s 60CC(4) and s 60CC(4A).

2. Brown J observed:

   175.  The evidence supports a finding that there is no parental alliance between the parties.  The mother failed to keep the father informed of the children’s residential address and saw no point in providing him with information about [C]’s schooling or photos of the children.  Each of the parents exercised poor judgment by interrogating the children and implicating them in the adult dispute and the court could not be confident that that will not continue in the future.  Murray J. has previously considered events following the parties’ separation and this court should not reconsider them.

   176.  I am satisfied the father has the capacity to provide for the children’s needs if they were to spend holiday time with him, as proposed. 

   177.  There is little chance the parents would be able to truly discuss and negotiate decisions relating the children’s long term care.  There is no reason to think that a truce will be called in the future. 

Section 60CC(3)(d)

1. Brown J dealt with at [178] to [180] the additional consideration in s 60CC(3)(d) of the Act being the likely effect of any changes in a child’s circumstances, including the likely effect on a child of any separation from either of his or her parents; or, any other child, or other person with whom a child has been living.

2. Brown J said:

   180.  The mother was not able to accept that [D] and [E] benefited by the existing relationship.  She agreed that if that relationship ceased, they could suffer some emotional harm in the short term but saw that as essential to protect them against the sexual abuse she alleged was occurring;  she said he “shouldn’t have time if he is sexually abusing the children”.  The proposal advanced on her behalf in final submissions cuts across that evidence. 

1. There was no complaint that Brown J was in error in finding that the presumption of equal shared parental responsibility had been rebutted.

2. Brown J then at [198] to [200] set out her conclusion, and as we have observed, her Honour at [198] set out her ultimate findings in relation to the child [C].  Her Honour accepted that what she proposed would mean that the child C would not have a meaningful relationship with the Father.  However, her Honour was of the view that “the potential risks to her emotional development and her relationship with her mother outweigh the potential benefits”, particularly as her Honour could not be confident that supervised contact could move to unsupervised time.  Her Honour was mindful at [198] that what she proposed to order would have the consequence, as did the orders of Murray J, that there would be a different regime for the children D and E.

3. In determining that it was in the best interests of the child C that there be no orders for her to spend time with the Father, in our view, her Honour made clear in her reasons why she came to this conclusion. 

4. When consideration is given to what Brown J said, and the evidence that was before her, we have considerable difficulty in being satisfied of any error by her Honour, or that the outcome was beyond a proper exercise of her discretion.  It is, however, necessary that we now satisfy ourselves that there is no substance in any of the grounds of appeal.

Ground 1

1. In the first ground of appeal the Father complained that there was no independent expert appointed under Pt 15 of the Family Law Rules 2004 (Cth) (“the Rules”) to provide a psychological or psychiatric report relating to the children and the likely effect of any orders that might be made in regards to the children spending time with the Father. The Father contended that when Brown J made comments about the likely emotional effect of orders on the child C she was doing so without any evidence before her on which to base her comments. In his submissions to us at the hearing, the Father submitted that there was no psychological or psychiatric evidence to support a finding that there may be undue stress or emotional conflict for the child C if she spent time with the Father (Transcript, 13 October 2009, p 5).

2. Sections 62G(1) and 62G(2) of the Act provide that where, in any proceedings under the Act, the care, welfare and development of a child who is under 18 is relevant, the court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.

3. Rule 15.04 of the Rules provides:

   If a family report is prepared in a case, the court may:

   (a) give copies of the report to each party, or the party’s lawyer, and to an independent children’s lawyer;

   (b) receive the report in evidence;

   (c) permit oral examination of the person making the report; and

   (d) order that the report not be released to a person or that access to the report be restricted.

   Note The filing of an affidavit does not make it become evidence. It is only when the affidavit is relied upon by a party at a hearing or trial that it becomes, for that hearing or trial (subject to any rulings on admissibility), part of the evidence.

4. In the dictionary to the Rules the term “family report” is defined to include a report concerning the best interests of a child prepared under sub-s 55A or s 62G of the Act. In the dictionary the term “family consultant” has the meaning given by sub-s 4(1) of the Act.

5. In s 4(1) of the Act the term “family consultant” is defined to have the meaning given by s 11B which is in Pt III of the Act. Section 11B(a) provides that a family consultant is a person who is appointed as a family consultant under s 38N. Part III also deals with the functions of family consultants, the court’s use of family consultants and other matters relating to family consultants.

6. Part 15.5 of the Rules deals with “expert evidence”. We observe that r 15.41(1)(d) provides that Pt 15.5 does not apply to evidence from a family consultant employed by a Family Court.

7. Section 11A of the Act provides:

   The functions of family consultants are to provide services in relation to proceedings under this Act, including:

   (a) assisting and advising people involved in the proceedings; and

   (b) assisting and advising courts, and giving evidence, in relation to the proceedings; and

   (c) helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and

   (d) reporting to the court under sections 55A and 62G; and

   (e) advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.

   Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.

8. We observe that in the revised explanatory memoranda to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 it was said at paragraph 177:

   Section 11A specifies a number of the functions to be performed by family consultants, which include:

   ·assisting and advising people involved in the proceedings (eg. grandparents) by, for example, providing expert advice on the effect on children of different ages of separation from a grandparent who has been a major caregiver to the child. (emphasis added)

   ·assisting and advising courts, and giving evidence in relation to the proceedings. For example, a family consultant may assist the court by providing expert evidence on an issue raised in the case, such as how a child’s age may affect his or her perception of a parental separation. (emphasis added)

   There are other functions to be performed by family consultants which, for the purposes of these reasons, we need not repeat.

9. In Friscioni and Friscioni [2010] FamCAFC 108 (17 June 2010) the Full Court (per Thackray, O’Ryan and Ryan JJ) said at [96]:

   Although the Family Consultant was an expert appointed by the Court to prepare a family report she was not in a privileged position and was required to give her evidence in the ordinary way.  As Gibbs CJ observed in Re JRL;ex parte CJL (1986) 161 CLR 342 at 348: “In the performance of this function the court counsellor becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court”: See also BBT and JMT (1980) FLC 90-809 per Wood J.

10. In this case, an order was made pursuant to s 62G of the Act that a report be prepared by a family consultant. A report was then prepared by Mr S. Mr S was a family consultant employed by the Family Court. Mr S was appointed pursuant to s 38N of the Act.

11. Mr S gave evidence that he had a Bachelor of Social Science degree, majoring in psychology and a graduate diploma in counselling (Transcript, 20 March 2009, p 504). Although the provisions of Pt 15.5 of the Rules did not apply to the evidence of Mr S, he gave expert evidence.

12. It is clear from the family report, and also the oral evidence of Mr S, that evidence was given as to the likely effect of any orders that might be made in regards to the children, and in particular the child C, spending time with the Father.  In our view, there is no merit in this ground. 

Ground 2

1. In the second ground of appeal the Father contended that Brown J, having found that there was no evidence to support that any of the children had been sexually or physically abused by the Father or that there was a risk of such abuse, failed to consider all the options that may be available to allow the child C to develop a meaningful relationship with the Father in furtherance of the principles of the Act. The Father also complained that without the benefit of an independent expert report her Honour made orders after considering the discredited report written by Ms T and declined to adopt the recommendations of Mr S.

2. The Mother relied on the evidence of Ms T, including what was in her report.  Brown J was very critical of the evidence of Ms T and her report was discredited.

3. As we have already observed, her Honour set out in her reasons the proposals of the Father and the Mother and the Independent Children’s Lawyer.  As her Honour observed at [42], the Father did not take any issue with the proposals of the Independent Children’s Lawyer for the children D and E.  Her Honour observed that in relation to the child C, the Father was content that the child should spend supervised time with him for 12 months and then another report be prepared and the court should determine whether unsupervised time with the child C would be appropriate. 

4. In the family report Mr S recommended that the child C commence spending supervised time with the Father and after a period of six months Y Centre prepare a progress report in respect of the Father’s time with C “in order to assist in determining whether it would then be appropriate for any unsupervised time to commence”.  In other words, subject to a period of 12 months as opposed to six months, the proposal of the Father was consistent with the recommendation of the family consultant.

5. We observe that in Hall and Hall (1979) FLC 90-713 the Full Court (Evatt CJ, Asche SJ and Hogan J) said at 78,819:

   In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.

   (a)     There is no magic in a Family Report.  A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities.  In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.

   (b)    Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions.  When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.

   (c)    While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.

   (d)    Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

   (e)    Sometimes the Family Report will necessarily be neutral.  While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.  

   (f)     Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation.  A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.

   (g)    It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations.  Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner.  To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged.  Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.

   (h)    Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors.  No expert should cavil at any questioning of his role or the foundations of his opinions.  We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation.  We draw attention to an article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry — “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia”.  The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:

   “Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report.  It is seen as an advantage by counsellors that they can in this way be held accountable for the Report”.

   (i)     Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied.  In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p.289:

   “It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue.  Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases.  Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.” 

   Similarly, in M. and M (1978) FLC 90-429 at p. 77,182; (1978) 30F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:

   “If the contents of such a report are not open to challenge by cross examination the Court would leave itself open to the criticism of conducting a trial `by report' rather than on the whole of the evidence.”

   This Court is in full agreement with the views set out above.

6. In Friscioni the Full Court observed at [98]:

   Although the Act has been significantly amended since 1979, what the Full Court said in Hall and Hall remains apposite to the situation before the trial Judge in this case: see also D & P [2006] FamCA 170 (unreported, Finn, Holden & Boland JJ, 22 March 2006) and Andrew & Delaine [2009] FamCAFC 182 (unreported, May, Boland & Strickland JJ, 6 October 2009).

7. Brown J clearly considered the proposal of the Father and came to the view that she would not adopt what was sought by him.  Her Honour was not bound to accept the recommendations of Mr S in his report.  However, as we have observed, in cross-examination Mr S, in our view, qualified the opinions he expressed and what her Honour found was consistent with what Mr S ultimately said.  We therefore reject the second ground.

Ground 3

1. In ground 3 the Father identified various findings that Brown J made in relation to the report and evidence of Ms T.  There is no complaint by the Father about her Honour’s findings and thus we reject this ground.

Ground 4

1. In ground 4 the Father referred to the evidence of Mr S that the child C responded positively to the Father and did not present as a conflicted child and there was no indication that she is scared of the Father.  Again, there is no complaint by the Father about her Honour’s findings and thus this is not a ground of appeal.  However, as we have observed, during the hearing before us, the Father complained that Brown J was in error in that she failed to place any or any sufficient weight on the evidence of the family consultant about the relationship of the child C with the Father (Transcript, 13 October 2009, p 9).

2. In the family report Mr S set out at paragraphs 30 to 33 his observations of the interaction of the Father and the children including the child C.  We observe that at paragraph 32 of the family report Mr S said: “At no time did [C] or the boys display any sign of discomfort or anxiety while in their father’s presence”.  In that part of the family report at paragraphs 34 to 40 where Mr S set out his evaluation he observed at paragraph 37: “When given the opportunity to see her father, [C] responded with a natural curiosity and was then drawn to the idea of spending time with him, without the influence of [the Mother]’s presence, and so she chose to remain in the same room with him”.  Mr S made other observations, which we need not repeat, which were supportive of a relationship between the Father and the child C.

3. Although Brown J did not specifically refer to this evidence when her Honour was dealing with the considerations in s 60CC(2)(a) and s 60CC(3)(b) of the Act, in our view, her Honour took this evidence into account. At [148] her Honour referred to some of what Mr S said about the interaction of the Father and the child C. At [149] her Honour observed: “[Mr S]’s opinion was that … [C] clearly enjoyed interacting with her father”: see also what her Honour said at [156]. Her Honour observed at [168] that the child C’s “willingness to be involved with the father when with [Mr S] is indicative of some curiosity about the father”.

4. However, Brown J also said at [168]: “Nevertheless, the court would need to be careful about extrapolating from her involvement with [Mr S] that [C] would feel equally safe and keen to pursue the relationship in less contained circumstances and in circumstances which made her mother very anxious”.

5. In conclusion, without going through all of what Brown J said, we are satisfied that her Honour was aware of the evidence of Mr S as to the positive interaction between the child C and the Father and that her Honour took this evidence into account and gave it appropriate weight.  We therefore reject this complaint.

Grounds 5 and 6

1. We do not propose to repeat the contentions of the Father in grounds 5 and 6.  However, they appear to be related and complain about how Brown J dealt with the interests of the child C differently from her consideration of the interests of the children D and E.  The Father complains about her Honour’s failure to consider the impact on the child C of being treated differently from the children D and E. 

2. As we have observed, during the hearing before us the Father contended that her Honour failed to adequately consider the importance to the child C of having a relationship with members of the paternal family and that her Honour failed to consider the impact on all three children of a different regime for the child C from the arrangements for the children D and E. 

3. Consideration of what Brown J said demonstrates that her Honour was mindful that what she was proposing would have an outcome that there would be different arrangements.  However, her Honour was not only considering the best interests of the child C but also the best interests of the children D and E.  For example, we have already referred to what her Honour observed at [179] in relation to the Father’s proposals, namely, that it would mean that [D] and [E] did not spend overnight time with the Father for quite some time, or time with him and his family at home in regional New South Wales. 

1. We reject grounds 5 and 6.

Ground 7

1. In ground 7 the Father said that the Mother admitted under cross-examination that she did not have a strong bond with the child C and that Mr S’s opinion of this was that it may indicate merit in an outcome which is most likely to reduce the pressure on the children. 

2. Brown J observed:

   151.  Cross-examined, the mother was asked whether she had a strong bond with [C], and answered “No”.  [Mr S] was not surprised by that response; he saw the lengthy litigation and the mother’s focus on the alleged abuse as something with the capacity to “get in the way” of a close and enjoyable relationship.  In his opinion, the mother’s answer may reflect a degree of insight and may indicate that there is merit in an outcome which is most likely to reduce pressure on the children. 

3. It is not clear to us what the complaint in this ground is.  What is apparent to us is that Brown J was concerned to achieve an outcome that was most likely to reduce pressure on the children and in particular on the child C.  We reject this ground.

Ground 8

1. In ground 8 the Father set out the recommendation of Mr S in relation to the child C and said that it appears to ignore the possibility that even if unsupervised time were at some time considered as being against her best interests that supervised time could still continue to allow her to develop and maintain a relationship with the Father in accordance with s 60CC(2)(a) of the Act. We would understand the Father’s contention to be that Brown J was in error in failing to consider indefinite supervised time for the child C with the Father.

2. Brown J provided reasons as to why, having regard to the relevant statutory considerations, and the evidence before her, she resolved it was in the best interests of the child C that she spend no time with the Father.  As we have already observed, her Honour considered the recommendations of the family consultant. 

3. We also observe that there would be significant practical difficulties if there were an indefinite supervised arrangement for the child C and indefinite unsupervised arrangements for the child D and E.  Again, we observe that Brown J was also concerned about the best interests of the children D and E and of the need to ensure that these children spend time with the Father and have a meaningful relationship with him.  We see no merit in this ground.

Grounds 9 and 10

1. In ground 9 the Father observed that at [166] Brown J said that she was not satisfied that the child C would be at risk of sexual or physical abuse in the Father’s care.  However, her Honour then gave reasons why she would not order that the child C spend time with the Father.  The Father contended that her Honour’s reasons included the involvement of the child C with the litigation over many years; the difficulty in extrapolating the experience of moving from supervised time with the Father in a secure environment to unsupervised time in a less secure environment; the child’s uncertain response to longer periods of supervised time with the Father; the risks to the child’s emotional development; the potential for an adverse effect on the child’s relationship with her mother; and the emotional effect on the child if contact with the Father started and then ceased.

2. In ground 10 the Father contended that most, if not all the factors he identified in ground 9 could also apply to the children D and E and that it is difficult to identify why Brown J should make separate orders for the child C. 

3. The Father also contended in ground 10 that Brown J gave no consideration to the relationship of the child C and the child K.  The Father also contended that her Honour gave no consideration to the psychological effect this would have on all the children.

4. Brown J was a very experienced trial Judge and it is clear to us that her Honour was aware of the effect of a different regime for the children.  By way of further example we have already observed that at [167] her Honour said that the benefits of a meaningful relationship of the child C with the Father “are far more finely balanced against the need to protect her from psychological harm than is the case with the boys”. 

5. Brown J was also mindful of the relationship of the child C with the child K and the Father’s step children.  As we have observed, in cross-examination, Mr S said, referring to the child K, that there “is another significant relationship” (Transcript, 20 March 2009, p 540).  We reject these grounds.

Grounds 11 and 12

1. In ground 11 the Father complains that Brown J gave no consideration to the possible emotional cost or risk between the children C, D and E.  In ground 12 the Father complains that Brown J gave no consideration to the emotional risk or cost that may be caused to the child C if she is unable to interact with the Father’s step children.

2. Grounds 11 and 12 are related and, on one view, they simply repeat contentions of the Father in other grounds as to the impact on the child C of a different arrangement from that for the children D and E.

3. Brown J made orders which provided that the children C, D and E ordinarily reside with the Mother.  The children D and E will spend time with the Father and thus have the opportunity to maintain a meaningful relationship with him and also a relationship with the child K and other members of the paternal family including step brothers and sisters.  The child C will not have this opportunity and that is most unfortunate.  However, her Honour explained, why she decided that this was in the best interests of the children C, D and E and we do not accept that her Honour made any appellate error.  We reject these grounds.

Other matters

1. During the hearing before us the Father contended that Brown J was in error in placing undue weight on her consideration of the possibility of future proceedings. Her Honour specifically dealt with at [188] to [189] the additional consideration in s 60CC(3)(l) of the Act. We have already referred to what her Honour found in relation to this important consideration and are of the view that there was no error by her Honour in relation to how she dealt with this matter.

2. During the hearing before us the Father also complained that Brown J failed to consider the wishes of the children. As we have observed, her Honour at [168] and [169] dealt with the additional consideration in s 60CC(3)(a) of the Act. We are of the view that it has not been established that her Honour was in error in her treatment of this matter.

Conclusion

1. As we have found no merit in any of the grounds of appeal, the appeal will be dismissed.  As we indicated earlier in [179] of these reasons, we consider that Brown J’s decision was within a proper exercise of her discretion.  Another Judge might not have reached the same decision, but that does not mean that her Honour’s decision was wrong.

2. Given what we propose in relation to the appeal, we also propose to dismiss the application in an appeal filed by the Father on 21 September 2009.  If there are any ongoing difficulties in relation to the orders, including those in relation to communications between the Father and the child C, then we see no reason why an application could not be made addressing such issues.

Costs

1. At the conclusion of the hearing we received submissions in relation to the costs of the appeal. The Mother sought an order that in the event that the appeal was dismissed, the Father pay the Mother’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Rules.

2. In discussion, we were informed by the Mother’s counsel that the Mother’s financial circumstances are modest and that she does not own her own home.  The Father does pay some limited child support.  We were also informed that the Mother is in receipt of a grant of Legal Aid.

3. In response, the Father said: “There is not much really I can say except that I am in a similar situation.  In fact at the moment I’m not working, and I also have a child as well.  So that’s about all I can say on that matter” (Transcript, 13 August 2010, p 33).

4. Notwithstanding that the Mother has established, for the purposes of s 117 of the Act, a justifying circumstance, namely, that the Father was wholly unsuccessful in the proceedings, there was no controversy as to the financial circumstances of each of the parties’. Further, we take into account that the Mother is in receipt of a grant of Legal Aid and the Father appeared before us without legal representation. In these circumstances we propose to make no order as to costs.

I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Finn, O’Ryan and Stevenson JJ delivered 7 September 2010

Associate:

Date:7 September 2010