MERCIER & DEAGAN
[2015] FamCAFC 207
•29 October 2015
Family Court of Australia
| MERCIER & DEAGAN | [2015] FamCAFC 207 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals orders where the child is to live with the father – Where the mother submits the trial judge failed to provide adequate reasons – Whether the reasons were inadequate – Whether the trial judge ignored essential facts – Whether the trial judge’s decision was manifestly unreasonable – Whether there was a denial of natural justice – Whether the mother was incompetently represented – Where the mother made allegations of actual and apprehended bias – Where allegations are not made out on the evidence – Whether the father gave misleading evidence – Where no error demonstrated – Appeal dismissed. FAMILY LAW – APPEAL – Application to adduce further evidence – Where part of the evidence had not been served on the other parties – Where the evidence is controversial – Application dismissed. |
| Family Law Act 1975 (Cth) s 60CC, s 117(1) |
| Bennett and Bennett (1991) FLC 92-191 Bienstein v Bienstein (2003) 195 ALR 225 CDJ v VAJ (1998) 197 CLR 172 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gronow v Gronow (1979) 144 CLR 513 Johnson v Johnson (2000) 201 CLR 488 Norbis v Norbis (1986) 161 CLR 513 OP & TP & The Child Representative (Conduct of Counsel) (2003) 30 Fam LR 281 |
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447
| Appellant: | Ms Mercier |
| Respondent: | Mr Deagan |
| Independent children’s lawyer: | Ms Harrington |
| File Number: | BRC | 10185 | of | 2010 |
| Appeal Number: | NA | 58 | of | 2014 |
| DATE DELIVERED: | 29 October 2015 |
| Place Delivered: | Sydney |
| Place Heard: | Brisbane |
| Judgment of: | Strickland, Aldridge and Forrest JJ |
| Hearing date: | 5 August 2015 |
| Lower court jurisdiction: | Federal Circuit Court of Australia |
| lower court judgment date: | 3 October 2014 |
| LOWER COURT MNC: | [2014] FCCA 1967 |
REPRESENTATION
| SOLICITOR FOR THE Appellant: | Appellant in person |
| COUNSEL FOR THE RESPONDENT: | Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | Springwood Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr Sayers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Harrington Family Lawyers |
Orders
The appeal be dismissed.
The Application in an Appeal filed on 20 July 2015 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mercier & Deagan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE Family Court of Australia at brisbane |
Appeal Number: NA 58 of 2014
File Number: BRC 10185 of 2010
| Ms Mercier |
Appellant
And
| Mr Deagan |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Ms Mercier (“the mother”) appeals against parenting orders made by Judge Cassidy in proceedings between her and Mr Deagan (“the father”). The child of their relationship, M (“the child”), was born in 2009. The trial judge ordered that the parties have equal shared parental responsibility for the child who was to live with the father. The orders also provided that from 3 October 2014, the child was to spend time with the mother for two days each alternate weekend and for half of school holidays.
As one of the grounds of the mother’s appeal is that the trial judge gave inadequate reasons for her decision, it is necessary to traverse her Honour’s reasons in some detail which we shall do after we refer to some relevant history.
Background
The mother has a child from a previous relationship, S, who was born in 1996. She lived with the mother until October 2010 when she was removed by the mother’s then partner. S lived with that partner for a while, then with relatives in New South Wales before returning to live with the mother. At the time of the hearing she was living in shared accommodation with her boyfriend.
The father has two children from a previous relationship born in 1998 and 2001. Those children live with their mother and the father sees them but there are no orders in place.
The parties commenced cohabitation in July 2007. In September 2008 they separated for six months, then reconciled. They then lived together until March 2010.
On 13 July 2010 the father obtained a temporary protection order against the mother. On 3 August 2010 a protection order was made until 2 August 2012.
On 27 October 2010 the child was taken from the mother’s home by her then partner who passed her into the care of the father. The Department of Community Services, Child Safety & Disability Services (“the Department”) records show the following:
On 27 October 2010, the notifier contacted the South East Regional Intake Service with the following concerns: [S] was very distressed after an incident last night between the mother and [the mother’s partner] which involved her as well. The situation became so bad that [the mother’s partner] removed the children, [S] and [M], with the help of the Police. He took them to a friend’s house where they stayed the night. [The mother] drinks beer daily up to 12 stubbies a day. She leaves [S] with [M] home alone 2-3 afternoons a week whilst she goes to the [local Tavern]. She comes home in the middle of the night drunk. When [the mother] is drunk, she is verbally abusive calling [S] names and swearing and yelling loudly. [The mother] is intolerant of [M] crying and yells at her. The situation has gotten worse over the last year.
On the following day the mother asked the police to recover S who told the police that she did not want to return to the mother and “that [the mother] is an alcoholic and does not care for her”.
On 29 October 2010 the mother filed an application in the Federal Magistrates Court of Australia (as it then was). On 1 November 2010 an interim order was made that the child live with the mother and spend time with the father for three periods of two hours until the next court date. On 8 November 2010 the Federal Magistrates Court ordered that the child live with the mother and spend time with the father each Wednesday, Saturday and Sunday for three hours at a time. An Independent Children’s Lawyer (“ICL”) was appointed.
On 1 December 2010 S attended the local Police Station stating that she no longer wanted contact with her mother and that she held concerns for the child. She alleged that her mother was drinking heavily and daily, often starting around 12:00 pm.
On 10 December 2010 S was interviewed by the Department. She told the Department that she was concerned about the child’s safety as her mother was drinking a lot of alcohol.
In the meantime, in early December 2010 the father married Ms Deagan. At the time of the hearing below they remained married.
On 30 May 2011, after a family report was released, the parties agreed to consent orders which provided for the child to live with the mother and spend one overnight and one evening each week with the father pending a final hearing.
On 1 April 2011 the Department informed the mother that as a result of their investigation of the notifications of S referred to earlier, they found that the outcome was “Substantiated – Child Not in Need of Protection”. The outcome of the investigation in relation to the child the subject of these proceedings was “Unsubstantiated – Child Not in Need of Protection”.
Subsequently, at one of the changeovers between the parties, the mother was engaged in an altercation with another woman at McDonalds. Although the mother described the incident as her being “king hit” by this woman, it is clear that there was at least some element of retaliation by the mother. The assailant was described by the mother as “an on-off partner of a friend of mine”.
On 7 October 2011 the father advised the mother he was no longer prepared to have any contact with her.
Ultimately, on 6 December 2011 final parenting orders were made by consent. The mother was to have sole parental responsibility, the child was to live with her and see the father on alternate weekends with changeovers at a contact centre in Town W.
It was not until June 2012 that the father commenced having time with the child in accordance with these orders.
The reasons of the trial judge
After recording these matters the trial judge commenced an extensive survey of the contact centre and Department records. According to the Department’s records on 9 September 2012, they described the following event as set out in the trial judge’s reasons at [63]:
At 2.00pm on 09/09/2012 the child and parents were observed at [the local hotel]. The child was crying ‘on and off’. The mother yelled at the child and threatened to smack her a number of times. The child continued to cry and the mother was seen to pick up the child and give her three “hard” smack (sic) “across the bottom”.
The child sat on a bench near her mother and continued “whimpering”. The mother was heard to say “shut up or I’ll give you another one”. At times the mother was seen to pick up the child and shake her. On other times, both the mother and father were seen to pick up the child by the top straps of her dress. On all occasions the child responded by crying further.
At one point the child was sitting next to her mother, crying and hitting herself.
The mother’s manner towards the child was described as “very aggressive”. On one occasion, the mother picked up the child and “threw” her into the pram. The act was so aggressive that a person in the Hotel intervened and told the mother that she was abusing the child.
There was no issue in the proceedings that the report was referring to the mother and the child.
On 18 September 2012 the Department records state that a notifier had informed it that:
- After the first overnight visit with [the father] in July 2012, [M] stated that “a man was looking at her bottom”. Since this visit, [M] has stopped using the potty, has become distressed when having her nappy or pants changed, and has regressed in her toilet training and is wearing nappies full-time.
As found by the trial judge, it emerged that the “man looking at my bum” was, in fact, a doctor to whom the child had been taken by the father. The father had noticed bumps on the child’s torso and had taken her to a doctor who diagnosed molluscum contagiosum (a mild skin disease), the diagnosis of which required inspection of the child’s genital area.
The trial judge found that the mother was aware of the child describing her visit as being a visit to the doctor and that the doctor had looked at her bottom but made the allegations notwithstanding. The mother said that her allegations and concerns were justifiable because some months later the child was still referring to a man, as opposed to a doctor, who had looked at her bottom.
The trial judge found that the allegations of the mother as to the changes in the child’s behaviour were not corroborated by the W Child Care Centre who had found the child to be very well-adjusted. The contact centre records indicated that the child got on well with the father and seemed keen to see him. On a number of occasions they recorded that the child would cry after her father left and not immediately acknowledge her mother on arrival.
On 17 March 2013 the contact centre notes show that the child was refusing to leave when her mother arrived to collect her.
The trial judge found that it was the mother who had made the notification to the Department, including about the changes in the child’s behaviour. Of the notification the trial judge said:
115.I do not consider that there is any evidence to make a finding of risk in the father’s home in relation to that allegation. The timing of the allegation raises concerns for me given that on 9 September 2012 the Department recorded a notifier, unknown to either parent, being concerned about the mother’s treatment of the child at [the local hotel].
The concern was that the notification made by the mother was in retaliation for the notification of 9 September 2012 and not out of genuine concerns arising from the child’s comments.
On 22 March 2013 the mother moved with the child to the Sunshine Coast. On 9 April 2013 she filed an application seeking a variation of the parenting orders.
In late 2013 the father and his new partner had a child, T.
The trial judge then found that, notwithstanding that the mother had taken the child to a doctor on 21 November 2013 complaining of “anxiety issues” resulting from seeing her father, neither the doctor’s records nor the contact centre records disclosed any anxiety issues related to the child seeing her father.
The trial judge then noted that the mother had made numerous complaints to the Department as identified and concluded:
116.The mother has made numerous complaints to the Department as I have identified in the background facts. The mother alleged to the Department that [the father] and [Ms Deagan] had previously admitted to purposefully feeding [M] foods that she was allergic to, just to make the mother’s life difficult. There is no evidence that I have that would allow me to conclude that the father did that. In fact the father spoke to the treating doctors about the child’s lactose intolerance and he sought to have the child tested to better define the intolerance, but the mother would not agree to that process.
117.The mother also complained that [Ms Deagan] worked in a brothel and brought large amounts of cash to the home. That is not an issue for me to be concerned about.
118.There is also an allegation the mother made to the Department that [M] returns from time with her father underdressed for the weather, tired, sick and hungry. These allegations are not borne out by the notes from the Contact Centre.
119.The mother also complains that the father associates with local police officers on the weekend, so that the police never conduct welfare checks on the family.
120.The mother has a long list of concerns about the father in terms of risk of abuse in his household, however I am not able to find that there is any risk in his household of abuse to [M]. I accept that the father is untested as a primary carer for this child and he has not really been responsible for the primary care of any of his children.
The trial judge referred to the mother’s drinking problems and accepted that S’s statements accurately described what was occurring in the house.
The trial judge then referred to a report of who she incorrectly referred to as Dr B, a psychologist. The notes of Ms B refer to the mother having had drinking problems in 2007 and 2008. The trial judge found:
127.This notification and [S]’s interviews suggest to me that the mother did have a serious problem with alcohol. The concern that I have is that the mother does not admit to that at all. In the absence of vigilance, this is an issue that might return and impact on the mother’s capacity to care for [M].
…..
131.I find the mother has had a serious problem with alcohol which she is not prepared to admit to.
After discussing the principles to be applied, her Honour then turned to s 60CC of the Family Law Act1975 (Cth) (“the Act”).
As to the meaningful relationships between the parties, her Honour concluded:
143.It is important that [M] has a meaningful relationship with both her mother and her father. At this juncture, I accept that she has a very positive relationship with her father that I can attribute to the mother’s attitude to a certain extent, because the child is primarily in her mother’s care.
144.The nature of the relationship that the child has with her mother has been brought into question by the interaction with Ms A [family report writer], where she describes in her second report:
“[50] Observations (continued)
[M] became very distressed and oppositional at the end of the session. She began crying and said that she didn’t want to leave with her mother but wanted to stay with the report writer. [The mother] said that it was probably because she had missed her sleep. [The mother] asked if she could leave [M] with me briefly while she went to the toilet. Even with her mother absent, [M] continued to cry. She repeatedly said “I want to stay with you” and “No Mummy. No go home with Mummy.” When her mother returned, she continued crying loudly and saying “I want to stay with the lady.” Finally, [the mother] simply had to pick [M] up and carry her out, still screaming that she wanted to stay with me.
[51] Note: During our subsequent telephone interview, [the mother] said that [M] settled within 5 minutes of leaving the office and slept in the car on the way home. While not wanting to over-state the implications of [M’s] behaviour at the end of this session, it was very unusual and therefore troubling, possibly indicating problems in relation to [M’s] attachment to her mother.”
This led to the trial judge being concerned “about the nature of the relationship the child has with her mother” [148].
As to the risk of abuse or harm, the trial judge found that there was no such risk in the father’s household. There was such a risk in the mother’s household because as the trial judge held, a “present concern is that the mother does not acknowledge the risk”.
As to the child’s relationship with the father, it was found to be somewhat untested as the child had never lived with him and there were extended periods of time when he spent limited time with her. The relationship, however, was described as positive.
As to the concerns as to the mother’s relationship with the child, the trial judge noted that it remained as a concern but that she could not make a finding about their relationship. The trial judge found that the child had two half-sisters in the father’s household with the potential for them to be significant relationships for the child.
As to the parenting abilities of the parties the trial judge concluded:
162. I have some concerns about the mother’s attachment to the child and they are not allayed because of the concerns about the mother’s relationship with her older daughter, [S]. The history of the mother’s relationship with [S] heightens the concern I have in relation to [M’s] relationship with her mother. The report by a stranger in relation to the mother’s care of [M] whilst she was at the [local hotel] is also a concern. There does not seem to be any evidence of the father or his partner not being able to care for the child and there do not seem to be any reports of that household coming under review by the Department.
163.So in terms of the parenting and the discharge of parenting responsibilities, the mother has been solely responsible for decision making for [M] for the majority of the child’s life and she has been responsible for her care. The father has had periods of time where he was not engaged with the child and elected basically not to be involved in decision making in relation to the child by virtue of the consent order that he signed that provided the mother with long term decision making solely. However the care that he has provided in the meantime, during the periods that he has had the child, has not really raised any concerns in my view, although the mother has raised many questions about it.
The trial judge then considered the effect of any changes in the child’s circumstances and found that moving the child to live with her father would be a very significant change for her because her mother has been her primary carer for the whole of her life. The trial judge said “[t]he one constant in this child’s life has been her mother”.
The trial judge then found that it was appropriate for the parents to be given equal shared parental responsibility due to the child’s age and needs. As a result, her Honour turned “to consider equal time and significant and substantial time” (at [170]).
The trial judge then concluded:
171.As Counsel for the Independent Children’s Lawyer said in submissions, if these parties did not live so far apart, this may well be a very different case. I accept that submission but it is just not practical for this little girl to enjoy equal time or substantial and significant time with either parent. The mother is living on the Sunshine Coast in circumstances where she has indicated that she is committed to living there, they own a property there, she has a business there and her partner has been there for thirty-five years of his life. The father is equally committed to where he is living and where he is staying. So this is a case where I am left with restrictions on what time a parent can have.
172.I am satisfied that the Independent Children’s Lawyer’s proposal is in the child’s best interest for the child to live with the father for the following reasons.
173.This is a finely balanced case because the child has always lived with the mother and the father has had limited time to demonstrate his parenting capacity. However the concerns I have about continuing to leave the child in the mother’s care outweigh the benefits in that fine balance.
174.The concerns are that the mother has raised constantly significant concerns about the care that the father provides for the child in circumstances where I do not consider there is any evidence to support them. The mother has been diagnosed, provisionally, with a borderline personality disorder. Of itself this is not determinative but it is a factor I have taken into account in looking at the extensive history of complaints the mother makes about the father.
175.A concern I have if I leave the child with the mother is the seeming risk of alcohol abuse in her household, which is supported by Dr [L’s] report. This risk is made more compelling because of the mother’s complete denial of any risk.
176.Another concern relates to the nature of the mother’s relationship with [S]. While I make no criticism of the mother for not involving [S] in the family reports or indeed, inviting [S] to give evidence, I am left with [S]’s report to the Department of a fairly chaotic lifestyle in the mother’s household that the mother completely denies. The mother really totally blames the father in this matter, her then partner and [S’s] father for creating this mind-state in [S] that the mother says had no bearing with reality. I simply do not accept that.
177.[S] had spent the majority of her life with her mother. She had spent very little time with the father in this matter. I consider that the evidence that [S] provided to the Department in [Town G] more likely than not represented her reality in the mother’s household.
178.For those reasons, where the mother totally externalises the blame for any incidents or scenarios in her life, including the “king hit” in the McDonalds at changeover, I do not consider that the mother can address issues as and when they arise in her home, which might put the child at risk. As a consequence of that, I am satisfied that it is appropriate for the child to live with the father and spend time with the mother as provided for in the Independent Children’s Lawyer’s draft orders.
179.The balance favours the untested father because of the deficiencies I have identified in the mother’s capacity to parent [M].
The Grounds Of Appeal
The grounds of appeal were broadly stated but were the subject of detailed written submissions. Difficulty arises in relation to the grounds because interwoven into each ground were complaints made about the mother’s incompetent representation at the hearing (which was a ground of appeal itself) and references to the extensive further evidence that the mother sought leave to adduce on the appeal. For reasons that will appear, leave will not be given to the mother to rely on that evidence.
The headings that follow are the headings used by the mother that served as her grounds of appeal.
Inadequate reasons given
In Bennett and Bennett (1991) FLC 92-191 the Full Court said at 78, 266:
In Sun Alliance Insurance Limited v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
In Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 Gleeson CJ, McHugh and Gummow JJ said at [62]:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The mother submitted the trial judge failed to provide reasons as to:
·“why she was confident that the Father would not relapse into his alcoholism, given his considerable and concerning long term history…”
·“why the Father’s significant long term, and recent, history of documented alcohol abuse was not a current risk to the child in the same way that the Mother’s prior short term use of alcohol, prior to the Child’s existence, is considered to be a risk, to the Child.”
·“why it was in the Child’s best interests to be abruptly removed from her Mother...”
·“why it was in the Child’s best interests to be abruptly removed from her siblings and step-father...”
·“why it was in the Child’s best interests to be placed in the untested care of the Father...”
·“why [the trial judge] considered it in the Child’s best interests to be placed in the untested primary care of the stepmother, [Ms Deagan].”
The trial judge had noted that the father had filed an affidavit in which he detailed five drink driving offences committed by him. The first was 12 years prior to the hearing before the trial judge and the last in January 2009. The trial judge did not refer further to that drinking but held that she was “not able to find that there is any risk in his household of abuse to [the child]”. The trial judge considered that there was no evidence to support the mother’s significant concerns about the care the father provides for the child.
The mother relies, in particular, upon a statement by the father made to Dr L in January 2014. Dr L provided a psychiatric report on the parties and Ms Deagan for the purpose of the proceedings. After referring to his drink driving charges, the father informed Dr L that he now has a hand held breathalyser which he uses prior to driving. The father went on to explain to Dr L the number of units contained in a range of alcoholic drinks and “described a clear awareness of the labelling of wine and beer which indicates a number of units contained in such a drink dependent on the percentage of alcohol”. Dr L concluded:
As a result of my assessment, it is my clinical opinion that [the father] is not currently suffering from alcohol dependence/ abuse. Whilst he may have met criteria for alcohol abuse in the past, his testimony and that of his current wife (see later) indicates that this has been in remission for a number of years.
The mother then refers to cross-examination of the father where he agreed that other than to provide a liver function test he had not called any medical evidence to support his position that he was not suffering from alcoholism or any alcohol related illness. There was, however, no evidence that the father was currently suffering from any alcohol related issues. The use of a hand held breathalyser and a reluctance to call evidence, when none was called for, does not establish that he was.
The trial judge’s findings were supported by Dr L’s opinion. The trial judge is not obliged to specifically refer to every piece of evidence relevant to that issue.
As to the mother, it is not correct to say that the trial judge found that the mother currently had a problem with alcohol. The trial judge found that she certainly did in the past. What the concern of the trial judge was, however, was the failure of the mother to accept that at any time in the past she had such a problem. The reasoning that led to that finding is clearly identifiable from her Honour’s careful consideration of the evidence relating to this issue.
As is apparent from the above passages, the trial judge was acutely aware that the child had only lived with her mother and that taking the step of moving her primary care to the father was a significant and serious one. The trial judge was acutely aware of the fact that the father and Ms Deagan were untested full time parents of the child.
The passages quoted above from her Honour’s trial judgment clearly identify the reasons why, taking those serious considerations into account, she made the orders that she did. Whilst the mother may not agree with those reasons or think that those reasons would not justify such a course, that is a different thing to establishing that the trial judge did not give sufficient reasons for the orders that were made.
This ground does not succeed.
Mistake of fact and ignored essential facts
Under this ground the mother argues that the trial judge ignored or failed to give weight to a number of facts, made inconsistent findings, ignored evidence and made mistakes of fact. It will be necessary to deal with each in turn.
The mother submitted that the trial judge either ignored or failed to place any weight upon “pre-notification checks of 18 September 2012” contained within the Department records which speak positively about the child’s presentation at day care, letters submitted by the child’s day care provider, evidence given by the maternal grandmother regarding the mother’s use of alcohol, a letter provided by Dr C, blood and liver function tests undertaken by the mother and the father’s history of non-involvement in the child’s life and decisions affecting the child. All of these, the mother submitted, were strongly in her favour.
There was also a complaint by the mother that the trial judge placed significant weight on reports to the Department despite the obvious animosity between individuals that could have led to a vexatious notification.
The trial judge conducted an extensive survey of the Department’s records, contact centre notes and day care records. This included setting out the 18 September 2012 pre-notification check in full. The trial judge also quoted extensively from the records which dealt with the child’s presentation at day care. It is true that the trial judge did not specifically refer to a letter from the director of the child’s child care centre or a letter from Dr C but the child care centre’s notes for the period both before and after 5 March 2013 (when the letter was written) were set out in the reasons as were passages from Dr C’s notes. The trial judge also recorded notes taken by a Departmental officer on 12 November 2012 who had interviewed the child care director. The director held no concerns with the mother’s parenting.
As we have already pointed out, a trial judge is not obliged to refer to every piece of evidence in his or her reasons. There is no basis for accepting the suggestion that the trial judge ignored these matters.
A large part of the trial judge’s reasons consist of the survey of the documents from the Department, the contact centre and child care centre. This led to an express finding by the trial judge, at [102], that “The Department records speak very positively about the child’s presentation at day care”.
Thus not only were these records not ignored, the express finding contended for by the mother was in fact made by the trial judge. The essential complaint then became that this finding should have been determinative of the proceedings.
An appellant who seeks to advance as a ground of appeal that the trial judge gave inadequate weight to particular facts faces a high bar.
In Gronow v Gronow (1979) 144 CLR 513 at 519 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge…
In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539 - 540:
… Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
(References omitted)
Finally in CDJ v VAJ (1998) 197 CLR 172 at 218 - 219 McHugh, Gummow and Callinan JJ said at [151] and [152]:
151.…absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge...
…
152.…It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require...
The above finding was but one of a number of findings made by the trial judge relevant to the outcome. Whilst it is possible that other judges may have weighed those factors differently, that does not, of itself, establish error.
The trial judge did not refer to the mother having a blood test in 2009 and a liver function test in 2011, neither of which were positive for alcohol. Neither of these results is material to the complaints made about the mother including those made by S as to the mother’s drinking in 2010. The failure to mention them is, therefore, not material.
The maternal grandmother gave the following evidence:
At no time has the Mother appeared, or seemed, to be suffering from substance abuse problems. She has not sounded or appeared to be under the influence of drugs or excessive alcohol.
This evidence is broad, unqualified and uncertain as to time. Given that the trial judge had evidence from a number of sources as to specific instances of the mother drinking at times when it was not suggested that the grandmother was present, the trial judge was entitled to give it little weight. The fact that the evidence was not specifically referred to does not mean that it was ignored by the trial judge. That evidence does not compel a different finding.
The trial judge was aware that the father had played a limited role in the child’s life. At risk of repetition, at [154] the trial judge said:
[M] has, to a large extent, a somewhat untested relationship with her father in that she has never lived with him and there have been extended periods of time when he spent limited time with her, some through his own failure to seek that time, some because of a misunderstanding of the mother where she did not realise she had to orchestrate the Contact Centre arrangements rather than the Court organising them. However since the orders have been put in place that provide the father with the alternate weekends, he has been very diligent in attending and spending time with the child during those times. The relationship seems positive from a review of the Contact Centre notes and Ms [A’s] reports.
That issue, and in particular the father’s largely untested parenting, was later described by the trial judge on more than one occasion as a significant factor. It is clear that the trial judge gave this matter significant weight. This complaint is not established.
The mother then contended that the trial judge made inconsistent findings as to the mother’s problems with alcohol saying at [123] “I do not consider that there is any evidence of a current problem [with alcohol]” but later at [131], “I find the mother has had a serious problem with alcohol which she is not prepared to admit to”.
We have addressed this complaint in [53] above, and we need not repeat what we have said. In summary, the findings are not inconsistent.
It is true that the trial judge gave significant weight to the reports as to child safety. She gave particular and significant weight to the complaints made by the mother’s daughter S. That was a course the trial judge was entitled to take.
The mother then submits that the trial judge’s finding that there was no risk in the father’s household of abuse to the child was not supported by the evidence. We have already set out the evidence as to the father’s relationship with the mother and the child, his history of involvement with the child, the evidence as to his early drinking issues all of which supported the finding that the trial judge made. The finding made by the trial judge was open to her on the evidence and the fact that another finding may have also been open on the evidence does not indicate that the trial judge made an error.
The mother is critical of the trial judge referring to the “king hit” at McDonalds at changeover. That assault, on the evidence, was committed by someone known to the mother. The trial judge did not blame the mother for the incident but, rather, said that the mother’s reaction to it gave rise to concerns as to the ability of the mother to address issues that might put the child at risk.
The evidence does not establish that the father was in any way otherwise involved with the incident. It follows that the submissions of the mother that the father “was involved in the incident” cannot be accepted.
The mother submitted that the trial judge ignored all reports and information from contact centres from mid-2012 until the 2014 hearing. This is not so. The trial judge referred to contact centre notes made as late as 17 March 2013. On 22 March 2013 the mother relocated to the Sunshine Coast with the child. This complaint is not established.
The mother contends that the trial judge ignored the evidence of the Family Consultant to the effect that the child was well cared for by her mother. That evidence was accepted as the trial judge found that both parents seemed to have been able to provide for and maintain the child. The concern noted by the trial judge was the nature of the relationship between the mother and the child. In doing so the trial judge expressly relied on evidence from the Family Consultant which she was entitled to do.
The trial judge set out in great detail notifications made to the Department. The identity of the notifiers is, of course, not known. Accordingly there is no substance in the complaint of the mother that the trial judge ignored the fact that the notifiers lived several hundred kilometres away from the incidents.
As we have mentioned, a protection order was granted against the mother on 3 August 2010. The mother asserts that the trial judge should have found that the mother consented to the order without admissions. The order itself indicates that it was made by consent but does not contain the words “without admissions”. In the absence of any further evidence on the issue the trial judge could not find that the orders were consented to on a without admissions basis. The material to which the mother took us does not compel a finding that the order was made “without admissions”.
In cross-examination the mother accepted that she had hit the father in the face. That incident led to the protection order. In that circumstance, it does not appear to be of significance whether the consent order was obtained “without admissions” or not.
The mother complains that the trial judge failed to take into account evidence in subpoena documents which, she asserts, the ICL deliberately failed to submit or deliberately withheld from experts. The material before us does not establish that this occurred. Even if it had occurred the mother was free to tender such evidence as she saw fit and to put further material to witnesses in cross-examination.
The mother then submitted that the trial judge had mistaken a number of facts. These were that the trial judge mistook the notifications made to the Department as facts rather than allegations, namely that the mother had precluded the father from obtaining information about the child, that the trial judge found a reason for concern about matters investigated by the Department notwithstanding they found the allegations were unsubstantiated, that Ms B’s notes were incorrectly described as Dr B’s report (Ms B is a psychologist) and that the mother had a number of partners that had come and gone. We do not accept that all of these mistakes were made by the trial judge. The trial judge was clearly aware of the nature of the allegations made to the Department, their evidentiary value and the findings that she could appropriately make. As to the balance, they are not material errors of fact and any correction would have no impact on the outcome.
The final matter raised under this ground relates to the mother’s complaint that the child had told her of a “man looking at my bum”. The trial judge found that the child originally told the mother this in July but the mother did not raise it until September and only after the incident where the mother was attacked at McDonalds, as referred to earlier. That finding is capable of standing notwithstanding any attempts that the mother may have made to get the father to explain how it was that the child made these statements. It is important to recall our earlier discussion from which it appears that there was always an innocent basis for the comment by the child, which was well-known to the mother.
Overall these challenges have not been established.
As well as making a general submission that the exercise of the discretion by the trial judge generally miscarried, the mother relied upon two specific matters. The first is that the trial judge erred in not considering that the father had alienated the child. This, however, was not the subject of evidence or submissions before the trial judge. The only reference to alienation or to the child being alienated occurs in a submission made to the trial judge that the child has not been alienated from the father.
The second complaint is that the trial judge granted the ICL leave “to explore historical issues” but denied the mother’s application to adduce evidence that addressed issues arising out of that leave. Whilst it is true that the trial judge refused the mother’s leave to adduce evidence (that application was made some time after the evidence had closed) the trial judge did not give the ICL any such leave.
On the first day of the trial the ICL tendered a bundle of documents concerning events that went back to 2010. Immediately after it was marked as an exhibit, counsel for the mother indicated that he sought to lead some oral evidence from the mother. That leave was granted.
Accordingly, there is no substance in either of those specific complaints.
The approach of an appellate court to an appeal against the exercise of a discretion is well established.
In House v The King (1936) 55 CLR 499, Dixon Evatt and McTiernan JJ said at 504 – 505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
As Brennan J observed in Norbis v Norbis (1986) 161 CLR 513 at 540:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
No error of principle has been established.
This ground is not made out.
Decision manifestly unreasonable
In her written submissions directed to this ground the mother goes through each sub-section of s 60CC and identifies the evidence that she submits the trial judge failed to consider. For example, in relation to s 60CC(3)(b) (which deals with the nature of the relationship of the child with each of the child’s parents and other persons), it was submitted “her Honour failed to consider the significant emotional and psychological impact on abruptly removing the Child from her life time primary caregiver, her stepfather, sibling and grandmother, all of whom had been significant in the Child’s life”.
As is clear from what has been set out from the trial judge’s reasons earlier, the trial judge gave active consideration to those matters. It appears to us that the complaint is not that the trial judge failed to consider those matters but rather the trial judge failed, after consideration of those matters, to make the findings contended for by the mother. The difficulties attended by a submission that a decision is manifestly unreasonable have already been set out.
Whilst it is true that the mother raised some issues that were not specifically referred to by the trial judge (such as the child’s relationship with the maternal grandfather and with the mother’s partner), a consideration of those matters would not compel the finding that the child should live with the mother. We hasten to add that merely because they were not mentioned, it cannot be assumed that they were not considered by the trial judge.
Similarly, the mother raised the issue of travel between Brisbane and the Sunshine Coast. Since the child was to spend substantial time with whichever parent she was not living with, we do not see how the travel is a relevant consideration.
As to the balance of the matters, the difficulties in such an appeal have already been well pointed out. The findings made by the trial judge were well open to her Honour on the evidence and are not manifestly unreasonable. This ground is not established.
Denial of natural justice and improper procedure
This ground raises four matters.
The first is the issue of the ICL being granted leave to “explore historical issues” which we have dealt with earlier. The mother secondly submitted that the subpoenas issued by the ICL were too broad, constituted fishing and therefore “opened the door to prejudice and actual bias against the Mother”. The third matter concerns what is said to be the ICL’s conduct in relation to subpoenas.
The subpoenas are not before us and any complaint about the subpoenas ought to have been addressed, at the latest, at the trial. It was not.
The next complaint is that the ICL did not serve a copy of the subpoenas on the mother’s lawyers when the subpoenas were issued but did so only at the commencement of the trial.
The ICL disputes this allegation. There is no material before us in the appeal books to determine which version is correct. Again, no point was taken about this at trial.
The final complaint is that the psychologist’s notes of interviews with the mother were used as evidence, “freely interpreted to support the father’s case”, whereas in fact those notes were not designed for use in court proceedings but rather for the psychologist’s assistance in treating the mother. The mother was free to call the psychologist or such other evidence as she thought might assist with the true interpretation of the notes. She did not do so.
The mother has not established any of the matters complained of and this ground is not established.
Incompetent representation
The mother engaged solicitors and counsel for the trial. They appeared for her in the preparation stage of the hearing and for the first three days of the hearing. Thereafter the mother acted for herself. The submissions identify, in a general sense, a number of failings alleged by the mother.
Incompetent representation can be the basis for a new trial. In OP & TP & The Child Representative (Conduct of Counsel) (2003) 30 Fam LR 281 the Full Court said:
123. We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
…
128.We think it is the fact of the best interests principle that further distinguishes child related cases under the Family Law Act. Applying the above principles we think that there are two issues to be established. One is as to whether incompetence on the part of counsel has been established, and we would adopt the view taken by O’Connor J in Strickland (supra) as the appropriate one in applying this test. The other is the issue of prejudice and we think that the appropriate test to be applied to the issue of prejudice is that adopted in DB’s case (supra), that is, but for the incompetence of counsel, is it reasonably probable that the result of the trial would have been different? There may, as was pointed out in DB’s case, be cases where the procedural irregularities are such as to demonstrate a miscarriage of justice regardless of the result. In our view such cases would be less common and we do not regard this case as falling into that category.
The test of O’Connor J in Strickland v Washington 104 S.Ct.2052 [1984] was referred to at [107] – [108] of OP & TP:
107. In that judgment Martin J also cited the decision of the Supreme Court of the United States in Strickland v Washington 104 S.Ct.2052 [1984]. The opinion of the Court in that case was delivered by O'Connor J who said, (at 2068):
"The defendant must show that there is a reasonable probability that, but for Counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
108. Her Honour further said (at 2065):
"Judicial scrutiny of Counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess Counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining Counsel's defence after it has proved unsuccessful, to conclude that a particular act or omission of Counsel is unreasonable. (references omitted). A fair assessment of Attorney performance, requires that every effort be made to eliminate the distorting affects of hindsight, to reconstruct the circumstances of Counsel's challenged conduct, and to evaluate the conduct from Counsel's perspective at the time."
The test of prejudice in British Columbia in DB & the Director of Child Family and Community Service [2002] BCCA was also referred to in OP & TP as follows:
115. Saunders JA said (at 28):
"In the language of GDB, the issues are of competence and miscarriage of justice, not necessarily in that order. In this case the appeal judge, adopting the approach derived from Strickland, considered first the performance question and then the issue of prejudice. This appeal lends itself to the same sequence and, in my view, the same analysis. Given the conclusions on the performance issue, of the two questions, performance and prejudice, the critical question is prejudice. Whether there is a reasonable probability that the result of the hearing would have been different, but for Counsel's errors. That is, the focus of this appeal in considering the fairness of the hearing is the effect, if any, of the deficiencies of representation upon the reliability of the result."
116. Her Honour found that counsel had been in significant dereliction of his duty and in considering the question of whether the deficiency required a new hearing, she said (at 31):
"This question may be answered by asking another: is there a reasonable probability but for the deficiency of representation, the result would have been different? If there is such a reasonable probability, then confidence in the outcome is undermined then one must say there is an unacceptable risk that the custody order is not in the child's best interest. While a child custody proceeding does not engage the same liberty interest as does a criminal proceeding, the interests of the parties and the community, in my view, bear that quality which engage as the caution of the courts where egregious flaws in representation are established."
These tests pose a significant hurdle. The mother called no evidence in attempting to meet them. Rather she merely relied on her written submissions which were general in the extreme. For example it was alleged that the solicitors “failed to prepare for trial proceedings and failed to prepare Affidavits”. Without specific evidence as to what the solicitors are alleged to have done or not to have done and what prejudice arose from those failures, there cannot even be a consideration of whether, with appropriate representation, there would have been a different outcome to the hearing, let alone a finding to that effect. The mother has not established that she was incompetently represented or that that representation prejudiced a fair trial. This ground is not established.
Actual and apprehended bias
Once again this ground raises a number of issues. First, it is submitted that the trial judge gave the impression of bias and prejudgment by virtue of a number of comments made by her. The emphasis in the following passages has been added by us.
On the second day of the trial the mother handed up a new set of proposed orders. The following exchange then occurred:
HER HONOUR: Is it – it still has the children living – child living with the mother, I take it?
MS McDIARMID: It does. Yes.
HER HONOUR: That’s the big ticket item. My question I am asking myself is whether I change this little one from mum’s care to dad’s care and, I mean, if you’re – if it’s still at the time with mum is that she’s the primary carer and there’s a bit of extra time to dad, I mean, I can make that order anyhow. If she’s offering it now, you can make some fairly positive submissions about the difficulties that creates.
The trial judge also said:
HER HONOUR: She has just thought that there’s a real risk that the child might go and live with dad and I think there is. And I think that has always been, you know, the big ticket item in this case.
After judgment had been reserved the mother brought an application to re-open and to adduce further evidence. That came before the court on 29 August 2014. The court was not in a position to deal with the matter on that day so a discussion ensued about setting an appropriate date for the hearing of the application. The following occurred:
HER HONOUR: I’m not very happy about leaving my judgment outstanding for that long.
MS SLOCOMBE: Your Honour, it makes it difficult for my client. We would have to brief another counsel in a three-day trial.
HER HONOUR: Yes, I understand. All right. What arrangements are in place for the trial in the meantime?
MS SLOCOMBE: Well, your Honour ‑ ‑ ‑
HER HONOUR: Hopefully the child is spending more time with the – could spend a little bit more time with the father if that’s going to be the sort of delay.
MS SLOCOMBE: Well, my client would certainly welcome any additional time that he could spend with the child.
HER HONOUR: I’ve already formulated my judgment. The child is to go to the father on the evidence that I’ve read.
Later the trial judge said:
HER HONOUR: And I don’t. It has left me with the independent evidence that I have – by independent, I mean not from the mother or the other party – about the events on that occasion. And I have formed a view about them. But I wouldn’t be giving you leave for [S] to give evidence at this stage.
MR SELFRIDGE: I don’t seek leave for [S] to give evidence, your Honour, on behalf of the mother.
HER HONOUR: Yes. And ‑ ‑ ‑
MR SELFRIDGE: And the mother is clear to me ‑ ‑ ‑
HER HONOUR: And I don’t really seek further information from [S] because I don’t have any and I don’t consider I need any. So I don’t see any utility in her being called to speak to Ms [A]. But what I can say – and I will probably put it over to the other two parties for this – is, look, I’m not sure that it will make a difference to the case but I didn’t draw an adverse inference when the mother didn’t call her mother. But Ms [A] said her mother was a real positive in the case when she was interviewing mum, when [M] was a littlie, when this matter first came before the court. I probably – it crossed my mind when I was actually thinking of orders and options, because it is a children’s matter. It’s not as strict in terms of the property requirement to open evidence as you have set out.
MR SELFRIDGE: I understand. Yes.
[All as per original]
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the majority of the High Court said at 344 - 345:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [41] . That principle gives effect to the requirement that justice should both be done and be seen to be done [42] , a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In Johnson v Johnson (2000) 201 CLR 488 the majority said at 492 - 493:
11. …It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
…
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
The passages emphasised above are comments made during the course of the trial by the judge directing attention to what she saw as important issues that remained to be dealt with. For example after having heard all the evidence and reserving the case, the trial judge’s observation that “[t]he child is to go to the father on the evidence that I’ve read” does not indicate that the trial judge would not give appropriate consideration to any further evidence to be adduced. The qualification “on the evidence I have read” is significant. At that stage of the trial the trial judge had heard all the evidence then before the court as well as final submissions. The comment indicates that, even so, her Honour was open to the consideration of further evidence in the event it was appropriate to admit it. In fact, leave was granted for further evidence to be adduced which was then taken into account by the trial judge.
As to the balance of the comments, the trial judge was merely highlighting that the significant issue in the case, from her perspective, was with which parent the child should live.
No application was made to the trial judge to disqualify herself.
We are not satisfied that this matter has been made out.
The next matter complained of is that the trial judge refused to hear evidence from S. As part of the application to adduce further evidence, the mother filed an affidavit and written submissions. It appears from the affidavit that the mother did not wish S to give evidence but sought to have her participate in further interviews with a Family Consultant, presumably with a view to S’s evidence coming before the court in a family report. On the hearing of the application, the mother’s counsel specifically informed the trial judge that he was not seeking leave to call evidence from S. If the mother did not wish S to give evidence directly, it is difficult to see why she should be permitted to do so indirectly. In those circumstances this challenge has no substance whatsoever.
The next complaint is that the trial judge displayed an apprehension of bias in the reasons by failing to note the mother’s concession that she previously had a problem with alcohol, that the father had communicated and spoken to other witnesses during an adjournment, that the trial judge granted leave to the ICL to explore historical issues, ignored the evidence of the maternal grandmother and frequently interrupted the father’s cross-examination but not the mother’s.
Most of these matters have been dealt with before. None is indicative of bias or the apprehension thereof.
The next complaint is that the trial judge, the ICL and the counsel for the ICL have been actively involved in a number of law events over the years including social events. No further particulars were given. There was no application made in relation to the judge or the ICL in relation to these matters.
In Bienstein v Bienstein (2003) 195 ALR 225 at 232, McHugh, Kirby & Callinan JJ noted:
33. Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corp Pty Ltd, this court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise. Similarly, ordinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge. Cases might arise where the conventional rules that govern such professional associations have been exceeded and require the judge to disqualify himself or herself. But Hayne J did not err in refusing to disqualify himself on the ground relied on by Mrs Bienstein.
It is not at all uncommon for judges to attend law conferences and the like and to be involved in surrounding social events. That does not, of itself, establish bias or the apprehension of it.
The mother then repeated her complaints about the ICL and the subpoenaed documents, and then made a serious suggestion that the ICL had removed documents that related to acts of family violence against the mother from the subpoenaed documents and placed “filtered” documents to the report writers and expert witnesses. These are very serious allegations. No evidence was put before us to establish these complaints. They were not the subject of the complaint before the trial judge. In those circumstances they are not made out.
The next complaint is that the psychiatrist who provided an expert opinion as to the mental health of the mother, the father and Ms Deagan was biased, went beyond her scope of knowledge and expertise, incorrectly recorded matters, lacked ability and professionalism, used outdated DSM (IV) guidelines, and that there were inconsistencies in the psychiatrist’s curriculum vitae.
In an affidavit sworn on 1 August 2014 the mother said:
238.I had filed an Application in a Case to change the report writer, the psychiatrist and have another ICL appointed because I was not satisfied with the performance of any of them.
239.I have had time to reflect on that application and I have withdrawn it because it is not appropriate.
240.I was concerned about inaccuracies in the report of [Ms A]. I was also concerned about inaccuracies in the report by the psychiatrist. It has been explained to me that the inaccuracies do not go to the heart of the reports.
There was no objection to the psychiatrist’s report being admitted into evidence and the psychiatrist was cross-examined. There is accordingly no substance in these grounds which we do not propose to deal with in further detail.
This ground is not established.
Deliberately false and/or misleading statements by the father
In the mother’s written submissions she sets out a number of the father’s statements to the court that she said were false. Some were tested in court and, in those cases, the mother’s assertions were not accepted. As to the others, there is no evidence other than the mother’s assertions in her written submissions that these were false. The court cannot act on such a basis and this ground is not established.
Conclusion
Having found no merit in any of the complaints of the mother, it follows, therefore, that the appeal will be dismissed.
Application to adduce further evidence
By an Application in an Appeal filed on 20 July 2015 the mother sought to adduce further evidence on the appeal. She sought to adduce evidence from her daughter S, the maternal grandmother and herself. The evidence from S was to the effect that the statements she had made to the police and the Department about the mother’s drinking and care of the child were not true. The evidence from the mother consists largely of descriptions of events occurring after the orders were made. There are sections that deal with the conduct of the ICL and the mother’s representation but those allegations are general and substantially in inadmissible form.
A large part of the mother’s evidence consists of transcripts of telephone conversations between her and the child. At the hearing of the appeal the mother sought to tender a USB stick which contained recordings of conversations between the child and the mother. As far as we could tell from what we were informed by the mother, 37 hours of such calls were recorded by the mother but the mother had edited those into 16 hours. It was those 16 hours that were on the USB stick.
The USB stick had not been served on the other parties. The original 37 hours of recordings had not been served on the other parties so they could determine whether the 16 hours that remained were accurate, complete and that no other relevant conversations had been omitted. For those two reasons the mother’s oral application to rely upon the USB stick was refused.
Turning then to the mother’s present application, the principles applying to further evidence on appeal are set out in CDJ v VAJ (1998) 197 CLR 172 as follows:
111. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
113.In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
The evidence of S is clearly controversial. If admitted, real issues would need to be considered as to the weight to be given to it, as that evidence is that previous statements made by her were not truthful. That would involve an examination, presumably, of both the circumstances that led to the making of the original allegations to the Department and to the police and to the subsequent retraction of them.
Further, the evidence of the mother suggests that the child is not happy living with the father and is not being cared for appropriately. As is pointed out in CDJ, there will often be a period of some difficulty in a child adjusting to the orders made in final parenting proceedings. That difficulty of itself does not justify re-opening an appeal. If, indeed, there are changed circumstances, that is the basis for a new application rather than an appeal.
The application to adduce further evidence will be dismissed.
Costs
In the event that the appeal is unsuccessful, both the father and the ICL seek an order for costs. The financial position of neither of the parties is strong. The mother is not working and her partner works part time. She is not in receipt of Centrelink benefits. The father works in his own business as a tradesman earning some $50 000 per year and has no real estate. Section 117(1) of the Act provides that subject to the balance of the section, the parties to proceedings are to pay their own costs. We are not satisfied that circumstances exist that would justify a different order. Accordingly, there will be no order for costs.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Forrest JJ) delivered on 29 October 2015.
Associate:
Date: 29 October 2015
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