Mulholland and Mulholland
[2007] FamCA 210
•16 March 2007
FAMILY COURT OF AUSTRALIA
| MULHOLLAND & MULHOLLAND | [2007] FamCA 210 |
APPEAL – FROM DECISION OF FAMILY COURT JUDGE – CHILDREN – COURTS AND JUDGES – BIAS – The parties commenced their relationship in mid-2002, married in late 2002 and separated in 2005 – There was one child of the marriage, aged two years at the date of the hearing – In proceedings for parenting orders, the father argued that the mother represented a risk to the child’s safety, highlighting that during the period of cohabitation the mother had sought assistance in relation to anger and losses of tempter towards her son from a previous relationship – The orders of the trial Judge provided that the child reside with the mother and the father have regular contact, increasing about six months after trial and again after the child commenced school – The father argued that trial Judge’s conduct of the trial gave rise to a reasonable apprehension of bias and prejudgment – The father’s argument was that, at trial, the trial Judge interrupted his cross-examination of the mother, was critical of his questioning and ultimately described incidents deposed to by the father, relating to the mother’s treatment of her son, as ‘trifling’ – There is nothing in the transcript of the mother’s cross-examination to demonstrate anything other than that the trial Judge was controlling the trial by giving the father directions about what constituted appropriate or useful lines of enquiry and the proper form of questions – The trial Judge was doing no more than indicating to the father his assessment of the weight of matters that the father was pursuing
LITIGANTS IN PERSON – PROCEDURAL FAIRNESS – The father argued, inter alia, that the trial Judge failed to outline equally to both parties the process and procedure of giving evidence and being cross-examined – It is clear that the assistance given by a trial Judge lies within the trial Judge’s discretion and should not be rigidly proscribed or prescribed – Bearing in mind that the mother was the first unrepresented party to give evidence, and the father was present during the information that the trial Judge gave her, there was likely no need for repetition to the father – Nothing to suggest there was any unfairness or prejudice in the differential between the instructions – The father generally misconceived the appeal process and principles
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 |
| APPELLANT: | MULHOLLAND |
| RESPONDENT: | MULHOLLAND |
| FILE NUMBER: | SYF | 2324 | of | 2005 |
| APPEAL NUMBER: | EA | 141 | of | 2005 |
| DATE DELIVERED: | 16 MARCH 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | COLEMAN, WARNICK & THACKRAY JJ |
| HEARING DATE: | 23 FEBRUARY 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 NOVEMBER 2005 |
| LOWER COURT MNC: | [2006] FamCA 347 |
REPRESENTATION
| APPELLANT: | In person |
| RESPONDENT: | In person |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER | Mrs O’Connor |
| SOLICITORS FOR INDEPENDENT CHILDREN’S LAWYER | Legal Aid Commission of New South Wales |
Orders
That the appeal be dismissed.
That the appellant father pay the costs of the independent children’s lawyer, of and incidental to the appeal fixed in the sum of $3,684.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA141 of 2005
File Number: SYF 2324 of 2005
| MULHOLLAND |
Appellant
And
| MULHOLLAND |
Respondent
REASONS FOR JUDGMENT
At the end of a five day hearing in November 2005, Cohen J made parenting orders concerning “E”, the two year old daughter of the parties. The orders provided that “E” reside with the mother and that the father have regular contact, increasing about six months after trial and again after “E” commenced school. Other orders addressed specific issues concerned with the interests of the child.
These reasons are in respect of the father’s appeal against all of the orders. He seeks that the child reside with him, that he have sole responsibility for decisions concerning her long term care, welfare and development and that, in the event that any contact be ordered between child and mother, that contact be supervised. In his notice of appeal, he also sought reference of various aspects of the litigation to particular bodies for investigation of fraud, forgery, perverting the course of justice and professional misconduct by legal representatives and a medical witness, but at the hearing he ultimately chose not to pursue these requests.
His third amended notice of appeal contained 34 grounds, many with numerous subparagraphs and altogether ranging across 10 pages. By his summary of argument he sought to add a ground 35 asserting:
Actual Bias on the part of the child representative.
and to add a particular to ground 14. By letter to the Appeals Registrar on 19 February 2007 he abandoned grounds 24 and 27.
As a broad grouping, the grounds asserted:
•Bias
•Denial of natural justice
•Denial of procedural fairness
•That the trial Judge was influenced by inappropriate conduct by the child representative
•Error in the trial Judge’s acceptance of the evidence of a “Dr M”, (a psychiatrist who prepared a report about the family)
•Errors of fact
•That the trial Judge misused his advantage in assessing the reliability of evidence
•That the trial Judge erred in the exercise of discretion, wrongly weighing the evidence
•That the trial Judge erred in relation to permitting the child to be taken overseas and to Adelaide
To assist in giving coherence to the appeal, the grounds of appeal are all contained in annexure A to these reasons, but re-arranged in respect of the topics listed above.
Despite the extent of the grounds, many of them are best dealt with by an overview of the father’s arguments on appeal. This is because the father, with respect to many grounds, failed to support them with specific references or submissions, but rather relied upon all the transcript, or all or most of the affidavit material, presumably to speak for itself.
As well, many of his submissions were afflicted by the misapprehension that by demonstrating that his evidence was contrary to a finding or conclusion of the trial Judge, error was shown.
We will return to the grounds of appeal after a short background and discussion of an application by the father to adduce further evidence.
Background
Unless otherwise stated, the following facts and quotations are taken from the reasons for judgment.
Though Australian born, the mother was from a wholly Middle-Eastern background and the father appeared to be “Anglo-Celtic”.
The parties commenced their relationship in July 2002 and married at the end of that year. The mother was working as a registered nurse. The father was at the time of marriage working as an accountant. However, he was unemployed at trial. The mother was about 33 years of age at trial, the father was a few months younger than her.
The mother had in her care her child “M”, born in 1999. The relationship between the mother and “M’s” father “…had been a troubled one. It ended not long before the wife and the husband first met. [M’s] father was violent…”
Having initially lived in rented accommodation, the family moved in with the father’s mother in April 2003. The parties’ relationship was:
…turbulent by mid-2004. They were already engaged in counselling, yet on 10 August 2004 the husband decided to exclude the wife and [M] from the home.…
The parties argued about [M’s] behaviour.…
The husband asserts that, by October 2004, because of the wife’s angry behaviour toward both himself and [M], he became concerned for his own and [E’s] safety. By November 2004, he was unwilling for the wife to be alone at home with the children.…
By mid-January 2005, the husband was contemplating expelling the wife from the home again. He says he was fearful that he and [E] might be harmed by the wife. He really feared that [M] would harm [E] when he returned from Adelaide.
…
On 31 January…
…the husband developed the belief that it was “too dangerous having them both”, meaning the wife and [M], in the home. He engineered an argument and became verbally abusive to the wife in the children’s presence and told the wife to “take [M] and get the fuck out”. She was afraid, so she left and took [M] but not [E]. She was fearful for her safety if she were to try to take [E] too. She was not permitted to see [E] until two days later when the husband allowed about two hours contact. Thereafter, until 16 February, the wife was permitted to see [E] about 9 times, usually for about an hour but sometimes longer.…On 16 February he told the wife he would not allow her to see [E] unless she had an order of the court.…
The mother obtained an urgent order from a Registrar of the Family Court on 23 February 2005. An order was made for the appointment of a separate representative for “E”. In the interim until the matter returned for “a formal interim hearing” the mother was to see “E” between 10.00am and 4.00pm five days each week.
It is apparent from a report of “Dr M” that she was requested by the child representative to see the family and prepare a report. As earlier seen, she is a psychiatrist. She saw the father, his mother, “E”, the mother and “M” on 27 April 2005 and provided a report on 12 May 2005.
On 18 May 2005, when the matter next came before the court, the parties agreed to interim orders which were quite different from those previously in force. It was ordered that the mother have residence of “E” and that the father have contact with her from 3.30pm on Thursday to 12.30pm on Friday and for four hours on five other days each week and on special days. At this time both parties were represented and the separate representative was also a party to the agreement. The father was represented by solicitors who specialise in family law. The regime agreed to by the parties was a consequence of “Dr M’s” report.
Before the trial Judge, both the mother and father were unrepresented.
Though Cohen J’s orders were made on 7 November 2005, they were subsequently amended on 17 May 2006, when the reasons for judgment were delivered.
The application to adduce further evidence
The husband seeks to have admitted into evidence two affidavits, one by him and the other by the mother, which were used for interim proceedings. As well, he seeks to put before us the transcript of a hearing before Lawrie J in August 2005 and the directions that she made. Arguments for the receipt of the further evidence are contained within an affidavit of the father filed with the application. He says:
25The further evidence the appellant requests the full court admit, establishes a profound error in the discretion exercised by the trial judge, in that the basis and foundations upon which his Honours discretion was exercised, particularly in relation to certain findings adverse to the appellant, as well as findings in relation to the subject child [E], and the respondent mother, that were central to a number of his honours conclusions, are unsafe, and that his Honour fell into appealable error to the extent he placed the reliance he did on those foundations.
26Those foundations being his honours reliance on the evidence, opinions and observations of [Dr M], the case and submissions of the Child representative’s, the observations of [Dr F], the evidence of the respondent mother.
27In essence the evidence clearly establishes that his honours discretion miscarried, and many of his honours findings fell into appealable error in relation to the appellant, the subject child [E] and the respondent mother and as a direct consequence the orders of the trial judge are plainly wrong. As a result had the further evidence been before the trial judge it would have produced a different result.
The hearing before Lawrie J was of an application (out of time) by the father to have the interim orders of 18 May 2005 (made by consent) set aside. The stated purpose of the father’s wish that the transcript of that hearing be before us was:
35That the Child representative was aware or ought to have been aware there was a direct challenge to the report of [Dr M] by the appellant, that the Child representative knew or ought to have known that she was obliged to be provided this material to [Dr M] and question [Dr M] in relation to that material particularly given her strong reliance upon the evidence of [Dr M].
The purpose for which the father wished to put the directions that Lawrie J made before us was to show that the child representative filed the affidavit of “Dr M” out of time. In his affidavit he argues that he was disadvantaged in the final hearing by late filing of “Dr M’s” affidavit, among other documents. That is an issue that can be considered irrespective of whether Lawrie J’s directions are before us or not.
As to his affidavit for the interim proceedings filed 21 July 2005 (and for that matter the rest of the “further” evidence), the father states that:
9The evidence is not “new” in the sense that the material has been known to and in possession of the parties for a considerable time.…
…The child representative referred to the affidavit of 21 July 2005 in a question put to the appellant on Day 4 of the final hearing.…
Later in his affidavit in support of the application to adduce further evidence, the father deposed:
29As it relates to the extent to which his Honours exercise of discretion was in error as a result of the reliance the trial judge placed upon the opinion evidence and observations of [Dr M], to the extent that reliance was adverse to the appellant, in that the application and affidavit of 21 July 2005 outlines;
i[Dr M] swore a false affidavit filed in the proceedings pursuant to Family Law Rule 24.05(2) by the child representatives,
iiA complete failure to comply with Part 15.5 of FLR,
iiiSome of the fraudulent misrepresentation of documents referred to in the report,
ivAn actual bias by [Dr M] against the appellant.
vThe direct challenge to a number of assertions made by [Dr M] that went unchallenged at the final hearing.
As to the affidavit of the mother filed 22 February 2005, the father argues in his supporting affidavit that we receive it because:
33…
a)[the mother’s affidavit was] [f]raudulently misrepresented in the report by [Dr M].
b) Sole and exclusive reliance on the respondent mother’s affidavit by expert is indicative of bias toward the appellant.
c)[Dr M] selects and includes in her report parts of the respondents affidavit that would have been most susceptible to objection exploiting s60 of the Evidence Act 1995.
d)The respondent Mothers subsequent assertions likely to be product of recent invention.
e)An affidavit referenced in the report of [Dr M] that the child representative failure to ensure was before court at the final hearing.
On the first day of hearing, Cohen J asked the parties to identify the material relied upon. The father commenced by referring to the affidavit he filed for the trial leading to the following exchange:
[THE FATHER]: …There are other, such as the application made to Lawrie J.
HIS HONOUR: Yes, but you’re obliged to combine all the material in one affidavit for me.
[THE FATHER]: I understand your Honour.
HIS HONOUR: Have you done that or?
[THE FATHER]: I have.…
The father then went on to refer to other documents but did not again refer to the affidavit of 21 July 2005. We say “again” because it is apparent from the dates inserted on it that the affidavit was for use in the hearing before Lawrie J.
Thus the father seems to have conceded that such of the content of his affidavit for interim proceedings as he wished to be before the trial Judge was contained in the father’s affidavit for trial.
We reject the application to adduce further evidence, because:
•The father’s claims in and about the further material are contentious;
•He effectively conceded at hearing that he had included in his affidavit for trial what he wanted from the affidavit of 21 July 2005;
•At the trial, the father challenged “Dr M’s” report and opinion at length and so had the opportunity to challenge “Dr M” (and any other witness) with regard to the assertions he made in or in respect of the material now proffered; and
•The transcript of the proceedings before Lawrie J and the directions she made do not assist the father in any of the arguments on appeal.
Overview of the father’s arguments on appeal
To enable the father’s arguments to be better understood, we set out something of his case at trial and the trial Judge’s treatment of that case and those of the other parties. Generally speaking, the reasons of the trial Judge impress as a detailed consideration of issues, across 39 pages.
As might be gathered from what has been already set out, the father’s case essentially was that the mother represented a risk to the child’s safety. He highlighted that during the period of cohabitation the mother had sought assistance in relation to anger, including towards her son, and losses of temper, including striking the child.
The trial Judge found that, until “E” was 8 months old, the wife was “E’s” principal carer. Then, in April 2004, the husband resigned from his employment, after which the wife returned to work and the husband cared for the children while she was working. The trial Judge said:
5…They expected she would obtain part-time agency work doing a few night shifts each week.…
6I accept her assertion that, when she was not at work, she remained the children’s primary care giver. I also accept the wife’s assertion that, while she was at work, the husband did not have to do much with the children except generally supervise them.…
…
8The wife did not work during the whole day because the husband said he could not cope with supervising the children in the morning. His excuse is that he had been diagnosed with Attention Deficit Disorder (ADD) and takes prescribed amphetamines on 5½ days in every 7.…
9From the beginning of the marriage the husband insisted that his will should always prevail over that of the wife. The wife was quite frustrated by this but usually complied. Resisting the husband’s will would result in arguments in which each was prone to outbursts of abuse. The husband could see nothing wrong in his actions but habitually pressured the wife to undertake counselling for psychological disturbances he purported to diagnose. He was, and still is, extremely sensitive to perceived criticisms or wrongs done to him. He is very rigid. His understanding is characterised by extreme literalism and little insight about himself or others. If he felt slighted he would resort to long periods of silence. Usually these lasted for 6 to 8 days. The largest was 15 days. Understandably, the wife became very frustrated and angry at this treatment. For the wife, the husband was a counsel of perfection; for himself, a counsel of toleration.
Later the trial Judge addressed the challenges by the father to “Dr M’s” evidence. Some particulars of that will be later set out. For present purposes we merely include Cohen J’s comments about “Dr M’s” impressions of the father and the conclusions of Cohen J about the father and the mother and where the child’s best interests lay.
38When the husband and his mother brought [E] to see [Dr M], [Dr M] noticed that they were well able to care for her. [E] was wary of [Dr M] at first, but the husband helped her settle and showed understanding of and sensitivity to her needs. [E] used the husband to provide a sense of security. The husband’s mother was knowledgeable about [E], but they did not interact at all during the 2 hours they were together. It was clear to [Dr M] that [E’s] main carer in the husband’s home is the husband.
…
40[Dr M] found the husband to be somewhat vague and evasive, but noticed no psychotic features. He did not appear to be restless or inattentive and displayed no “strong affect”. He was seen to behave appropriately with [E].
…
45She said of [E] and the husband that they have a “close affectionate relationship”. She said much the same about the interaction between [E] and the wife.…
…
85There are two facts or matters which I regard as relevant which have, so far, only been mentioned in passing.…
86The second is the husband’s behaviour in court.…
…
90[Dr M’s] report is to some degree undermined because she did not witness this event. In my opinion, her impression of the husband is too favourable to him. His behaviour in court raises great concern for the consequences to [E] if she is the cause of frustration to the husband, especially when she is older and attempts to assert herself or for other reasons the husband finds her difficult to cope with. After all, she is probably the focus of his greatest concerns in life.”
…
93I am satisfied he is, as the wife alleges, devoted to inflexible routine, obsessed with [E’s] safety to the extent that it is likely to be suffocating for her and incapable of a realistic assessment of her emotional needs because of his lack of insight and understanding of what those needs might be. He is, as the wife claims, quite blind to his own inadequacies as a parent but quite demanding and critical of the wife in respect of parenting. I accept he is subject to fits of anger and very controlling. I think that both the wife’s and the separate representative’s characterisation of the husband is largely accurate. So is that of [Dr M], but for the exception which I have already mentioned.
94By comparison, the wife seems to me to be unexceptional. She has parenting deficits but admits them. She is relatively honest. Where her version of events conflicts with that of the husband. I accept her version. I prefer her overall version of the situation which exists even if, in some specific detail; unimportant detail which the husband has gone to great lengths to prove to support his general version, the husband is correct. I accept the wife’s evidence of fact. I regard the later of her two affidavits as establishing that his criticisms of her are largely based on distortion and quite exaggerated.
95I regard the husband’s factual case as bound by triviality of detail which tends to distort a proper understanding of the situation as it was by the time of the hearing. The husband’s complaints are in many instances about trifling incidents. Where the incidents were not trivial when they happened, now, because of changes in circumstances, they no longer have the importance he places on them.
96The best example of this is the husband’s reliance on the wife’s loss of patience with and frustration at [M’s] behaviour resulting in what were ill disciplined, unduly emotional and violent punishments. If there had been no change, this would have been important. However, the wife sought and obtained expert help. She overcame her problem with [M] because the situation they were both in changed; that is, they ceased to live with the husband, and because she saw that she was behaving inappropriately, wanted to change and, on taking advice, modified her behaviour. Now [M’s] behaviour is no longer confronting and the problem of her inappropriate discipline of [M] no longer exists.
97I regard the wife as having satisfactorily answered all of the husband’s complaints about her parenting and as having established her complaints about the husband’s deficits relating to his parenting ability and capacity. I regard her as a loving mother who has the best interests of [E] at heart, is well balanced and able to put [E’s] needs above her own where necessary or appropriate. I have no fears for [E’s] emotional and physical safety in her care.
98I do not have the same confidence in the husband. In his case, I regard [E] as being at great risk of emotional abuse and consequent harm. Because of the husband’s volatility, aggression, rigidity, obsessiveness and intolerance to frustration, she is also at not discountable physical risk from him despite there being no history, so far, of any resort by the husband to attempts to control other than by verbal and emotional methods.”
…
100After weighing all the matters before me which have been dealt with above, I have come to an extremely firm conclusion that [E’s] best interests demand that she live with the wife and that the husband should have no right or responsibility to take part in or implement the decisions needed to rear [E] in the long term. The husband’s case for such control and residence is extremely weak. The case for supervision of the wife’s contact with [E] is quite unrealistically based.
As earlier indicated, the father failed to appreciate the fundamental nature of the appeal process. The appeal is one against a discretionary decision and the principles applicable are set out in House v The King (1936) 55 CLR 499 at 504-505, and in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, where Asquith LJ said:
… 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.
In respect of a number of his complaints, particularly those of bias and denial of natural justice, the father’s arguments were based on the proposition that, because the father’s evidence was contrary to findings or conclusions of the trial Judge, that demonstrated the trial Judge’s bias against the father. Similarly, he argued that because most, or even all issues, were resolved in the mother’s favour, of itself this indicated bias.
The father applied the same mistaken approach to the alleged errors of discretion, essentially pointing to his case and ignoring evidence which supported the trial Judge’s conclusions.
Though the father’s grounds asserted errors of fact, save for one inconsequential matter later mentioned, no arguments were put to us about this.
Bias (primarily grounds 1, 2, 3, 21 and 30)
Apart from matters referred to in the overview of the father’s arguments, he complains that the trial Judge interrupted his cross-examination of the mother, was critical of his questioning and ultimately described incidents deposed to by the father, relating to the mother’s treatment of her son, as “trifling”. He pointed in particular to the following exchange:
HIS HONOUR: …But you better understand that time is running out.
[THE FATHER]: I understand that your Honour.
YOUR HONOUR: Because I’m not going to extend the time of this case.
[THE FATHER]: No, not at all. As I said, I’m going as quickly as I can, I’m trying to state the major issues.
[THE FATHER]: They’re not major issues [Mr Mulholland].
[THE FATHER]: Sorry your Honour.
HIS HONOUR: They’re major issues in your mind, you’ll have to convince me they’re major issues rather than minor incidents.
In Johnson v Johnson (2000) 201 CLR 488, a majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles in relation to bias and said (at 493):
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 Vakuta v Kelly [(1989) 167 CLR 568 at 571] 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.
…No doubt some statements, or some behaviour, may produce an ineradicable impression of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation. (emphasis added)
The exchange quoted occurred on the morning of the third day, after the father had been cross-examining the mother for some time. By this stage of the trial, Cohen J had allowed each of the parties to open that party’s case at length on the first day. Before the mother had entered the witness box, a “Dr F” had given evidence led by the father and “Ms R”, an employee of the Department of Community Services, had also been called by the father and extensively questioned by him. The transcript indicates that Cohen J had read at least some of the material relied upon by the parties.
The trial Juge had also spoken to the father on more than one occasion about the length of time he was taking in and about cross-examination and organising his case generally.
We are unable to see, in the transcript of the mother’s cross-examination to the point where the exchange quoted occurred, that the trial Judge was doing other than controlling the trial by giving the father directions about what constituted appropriate or useful lines of enquiry and the proper form of questions.
Further, in our view, his Honour was doing no more at this stage of the case than indicating to the father his assessment of the weight of matters that the father was pursuing. He indicated that the father would have an opportunity to persuade him otherwise. We see no error in that approach.
Grounds 21 and 30 address the conduct of Cohen J “during the course of the hearing”. The only specific complaint which we think it necessary to address is that his Honour failed to enquire into “…important information immediately before him that related to central matters for determination.” One of the areas of scrutiny before Cohen J involved disturbed behaviour displayed by the child in the months following the separation of the parties. At one stage, “E” displayed a fear of strangers and men in particular. Some of the expert opinion suggested that the separation of the child from the mother was a factor in that disturbance. The father suggested that examination of the child to see if she had been sexually abused was, or might well have been, the cause of disturbed behaviour.
The father conceded before us that he did not put his proposition to the relevant witnesses during the trial. In our view, that is the end of the father’s argument as an appeal point.
Otherwise, we were not taken to any of the material by the father, and have not seen for ourselves any of it, which supports the contentions in the grounds of appeal under discussion.
Denial of natural justice (grounds 22 and 23)
These grounds assert an unfairness to the father arising from late service of affidavits, from the expedition of the hearing and from being denied access to crucial subpoenaed material. The only submission made in respect of ground 22 was:
Ground 22(b): CDJ v VAJ (1998) FLC 92-828 paragraph 160.
The father made no submission in support of ground 23.
When the parties were informing Cohen J of their cases at the outset of the hearing the father referred to the proceedings before Lawrie J and Cohen J pointed out that nothing that occurred before her affected the decision that he had to make. He said:
HIS HONOUR: I’m hearing this case to finality now.
[THE FATHER]: Of course.
HIS HONOUR: I presume that Lawrie J’s hearing was an interim hearing, and she can’t make a decision on the facts because she wouldn’t know all the facts.
[THE FATHER]: Yes, your Honour, it was on the basis of the application I made that the matter was expedited.
In our view there is no merit in any of the matters of which the father complains in grounds 22 and 23.
Denial of procedural fairness (grounds 25, 26 and 28)
The father made no submissions in respect of grounds 26 or 28. Ground 25 seems to borrow heavily for its particulars from the guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072 and indeed the only comment in the father’s written summary in respect of grounds 25(a) to (g) was that case reference.
In Re F, as well as revising the guidelines that had been formulated in Johnson and Johnson (1997) FLC 92-764, the Court said (at 88,277):
229.…we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case.
230.We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.
In the absence of submissions and any concern arising from our own consideration of the appeal papers, we think it unnecessary to say anything more of grounds 25(a) to (g) and 28. Grounds 25(i) and (j) were:
i)The trial Judge failed to adjourn at the request of the appellant, which was a reasonable request in the circumstances.
j)The manner in which the trial Judge outlined the process and procedure of giving oral evidence and being cross examined to each of the parties immediately prior to each entering the witness box to give evidence raised an apprehension of bias.
In support of these grounds reference was simply made to parts of the appeal book.
In relation to the refusal to adjourn, this simply comprised a refusal by the trial Judge towards the end of the second day, after two of the father’s witnesses had been interposed, to defer cross-examination of the mother by the father until the next day. The trial Judge took the view that the father should have been ready, as had the witnesses not been interposed, the mother would have been the first witness cross-examined. Cohen J expressed as a further factor that the case needed to finish two days later, at the end of the week. We see no error in the trial Judge’s approach but more particularly, no prejudice to the father. The transcript shows that he commenced his cross-examination at 3.24pm and an hour later, the matter was adjourned until the next day, when the father continued with his cross-examination for another hour.
In relation to ground 25(j) we have read the transcript references. There is a difference in the length and particulars of instructions which Cohen J gave to the father as against those he gave to the mother. However, bearing in mind that the mother was the first unrepresented party to give evidence, and the father was present during the information that the trial Judge gave her, there was likely no need for repetition to the father. Indeed, when the time came for the father to go into the witness box, he said:
Your Honour, what do you want me to take?
and the trial Judge replied:
HIS HONOUR: You take whatever you want to take. Remember what I said about keeping notes. Make a note – take a pen and paper so you can do exactly what the wife did in response to cross-examination when she got her chance to reply.
We are not satisfied that in the circumstances there was any unfairness or prejudice in the differential between these instructions.
Ground 26 read:
26.The trial Judge erred in the exercise of his discretion and denied the appellant procedural fairness by his Honour interposing two witnesses at the beginning of the hearing before the respondent mother had given evidence and without his Honour explaining the possible disadvantages to the appellant of this course and without his Honour informing the appellant of his right to object or affording the appellant the opportunity to do so particularly given his honour stated the previous day that the respondent mother would be first to give evidence.
At the commencement of the second day when evidence was to commence, the child representative informed the court that two witnesses subpoenaed by the father were present. Considerable discussion then ensued, including attempts by Cohen J to ascertain the evidence which the father wished to lead from the two witnesses, who were as previously seen, “Dr F” and “Ms R”. Relevant to the ground of appeal is the following exchange:
HIS HONOUR: Because I’m – what I’m inclined to do Ms Karagiannis and [Mr and Mrs Mulholland] is if [Dr F’s] here and there’s some evidence that really is worthwhile for him to give, I’ll put him in the witness box now and he can go.
MS KARIGIANNIS: I wouldn’t object your Honour.
HIS HONOUR: And the same with the caseworker.
[THE FATHER]: Your Honour, it was my expectation that the ordinary course of witnesses was first the mother, then myself - - -
HIS HONOUR: It was, but this court has the capacity to change those things in order to meet the needs of the community or other reasonable – or for other reason – good reason. Now, I see a doctor here, you don’t even know why you want to call him. You’re the one who subpoenaed him and you want him to go away and have to come back again.
After further discussion about the evidence that the father sought to lead, this exchange occurred:
HIS HONOUR: Yes, all right. Well, I’m going to do – what do you have to say about this, [Mrs Mulholland]? Do you have anything to say about the fact that I am considering allowing the husband to call both of these witnesses right now, out of order? You will have a right to cross-examine them after he gets to examine them in-chief. So if you want to dispute anything they say or he puts to them or add to it that will be your opportunity.
[THE MOTHER]: Yes, your Honour, I have no objections.
HIS HONOUR: You have none.
What about you, Ms Karagiannis?
MS KARAGIANNIS: No, your Honour.
HIS HONOUR: All right. Well, that’s what I’m going to do. So I think we’d better call [Dr F] straight away and I’ll get the caseworker to wait outside.
While we think it might be said that his Honour was perhaps brusque in his dealing with this issue, we think it also apparent that the father did raise his expectation that the ordinary course of witnesses would be followed. Cohen J recorded his reasons for taking the course that he did. Most significantly however, the father presented no argument to us to show in what way this caused any prejudice whatsoever to him.
Having regard to what we have already said, we see no error in this aspect of the conduct of the trial by Cohen J.
That the trial Judge was influenced by inappropriate conduct by the child representative (grounds 31, 32, 33, 34, and 35)
Ground 31 asserts that evidence accepted by the trial Judge was a fabrication but these assertions were simply not argued in any way which demonstrated error of fact by the trial Judge.
In so far as the grounds attacked the conduct of the child representative, even had the father demonstrated (which he certainly has not) some inappropriate conduct or deficiency in the conduct of the child representative, unless it could be shown that that led to appealable error, it would not found a successful appeal. No such nexus was forged.
Error in exercise of discretion (grounds 5, 6, 7, 8, 9, 10, 11, 12, 14 and 20)
Despite the number of grounds going to this proposition, we consider it unnecessary to say more than that the grounds, and such submissions as there were in support of them, were based on the misapprehension about the appellate process earlier referred to.
That the trial Judge erred in accepting “Dr M’s” evidence (grounds 15, 16 and 17)
The trial Judge was well aware of the father’s case concerning “Dr M’s” evidence. He said:
37The husband is very unhappy about [Dr M’s] report. He has attempted to undermine it with claims about errors, omissions and the fact that it, naturally, does not take into account occurrences after [Dr M’s] wrote her report and is somewhat out of date. The husband’s arguments, although there may be some elements of truth in them, provide no basis for any undermining of [Dr M’s] observations and opinions. Her written and oral evidence is quite convincing, so far as it can be taken with the limited opportunity she had to observe and assess the husband.…
…
56Another of the husband’s claims about [Dr M] is that she failed to give adequate weight to what he says is the wife’s outbursts of anger and history of violence against [M]. [Dr M] concluded precisely what I have independently concluded; that the husband has exaggerated but, in any event, the wife has successfully overcome such of these problems as she had and is likely, if she feels anger towards the children in future, to seek help and overcome her feelings in an appropriate manner and does not pose a problem for the physical or emotional safety of the children.
…
79The husband criticises [Dr M’s] report and opinion on bases which I have not already dealt with. I have already largely dealt with his claim that, because it is from April or May 2005, it is out of date. He also says it is out of date because [Dr M] did not see material which was produced or subpoenaed for the hearing or read the most up to date affidavits. He also says [Dr M] based her opinions on many errors, partly caused by the deliberate failure of those she spoke to other than the husband and his mother to be truthful and their failure to disclose facts adverse to the wife and partly because of [Dr M’s] failure to consider important matters which are adverse to the wife’s case. He goes as far as suggesting that DOCS, [Dr F] and [Dr M] are biased against him and deliberately attempted to harm his case and help the wife.
…
101I would have come to these conclusions independently of [Dr M’s] recommendations and opinions, if they had not been in evidence, but not, of her observations. I regard [Dr M’s] observations as accurate. It concerns me that [Dr M’s] opinion and recommendations have been said to be undermined by the fact that the material before me was different to that upon which [Dr M] relied. As is common, insufficient limitation was placed on the material [Dr M] was given access to in order to write her report. She was not then asked at the appropriate time; the time when it was largely known what evidence would or might realistically be put before the Court which might affect her opinion, what her opinion might be if such evidence was or was not accepted. This is a problem made worse when the parties are unrepresented. The simple answer to the husband’s claim that relevant matters were not considered by [Dr M] or that she relied on factual errors is that he cannot say that with any force because he could have and did not give her the opportunity to give her opinion on the facts he asserts differently from those which she assumed and did not put to her the matters he says she should have considered to give her the chance to express her opinion and recommendations based on them.
We see no error in the trial Judge’s dealing with the evidence of “Dr M”.
Specific issues
(a) passport and travel with the child overseas(ground 18)
The wife sought that orders be made relating to a passport for [E] and otherwise which would allow the wife to visit the wife’s relatives, including her own mother, overseas for three weeks each year. She also sought orders that allowed her to visit her father in Adelaide with “E” for two weeks twice each year.
The husband opposed the wife taking “E” overseas. He feared she would not return.
The orders that the trial Judge made were:
11…
(d)that the wife is hereby permitted to take [E] out of Australia provided the wife gives the husband not less than 3 months notice of the departure and return dates and not less than twenty-eight days prior to [E’s] departure supplies the husband with her contact address at her principal overseas destination and with the telephone number or numbers by which she can be contacted and she is hereby restrained from permitting [E] to remain outside Australia for any period of more than twenty-eight days and shall not cause or permit her to depart from Australia more than once in each calendar year;
(e)that the contact between [E] and the husband otherwise provided in these orders is hereby suspended for such period as is notified to the husband by the wife pursuant to (d) herein;
(f)that the wife shall compensate the husband for all lost contact with [E] resulting from (d) and (e) herein by providing make up contact of the same nature as that which is lost;
(g)that in the case of a lost single day or single overnight contact compensation shall be provided prior to the lost content period; and,
(h)that in the case of all other lost contact compensation shall be provided prior or as soon as possible after the lost period.
Cohen J’s reasons for those orders were:
99…
(f)…
There is no suggestion there will be any danger involved in a visit [overseas]. As the wife was born and raised in Australia, holds professional qualifications here and has a normal outlook on life, has close ties here with friends and relatives including her father’s family in Sydney, and because I assess her from seeing her and hearing her evidence as quite unlikely to decide to remain [overseas] if she is allowed to take [E] there, I can discern no reason why she should not be permitted to visit her family [overseas] with [E]. There is even less reason why she should not be permitted to go to Adelaide to visit her maternal grandfather.
The visits should not be so long that they unduly interfere with her need to spend time with the husband. The wife asks to be able to visit [overseas] for 3 weeks at a time. To do that she would need to be away for about 4 weeks at a time.
…
114Those who are part of her mother’s milieu but live overseas cannot reasonably be expected to travel to Sydney to see [E]. It is much more practical for her to go to them, than for them to come to her. If some do, they would not be experienced by [E] in the vastly different situation they are in in [their country]. I think the sooner [E] begins to experience her […] family [overseas] the better for her. She will also have the opportunity to live in an Arabic speaking world and meet her family in its appropriate context and to learn to understand it better. If she has these opportunities, she will probably benefit greatly from them. Travel, in general, is likely to be good for her, particularly as a foil for the husband’s tendency for isolation.
115It is reasonable for any contact with the wife’s family to be for more than a few days. The wife’s claim to be permitted to visit for 3 weeks is an appropriate one, but travelling time means she ought to be permitted to remain overseas for a few days more. This would permit stopovers for a few days which are bound to broaden [E’s] knowledge and experience and thereby benefit her.
116Nevertheless, I do not think the wife should be able to interrupt contact with the husband for more than 28 days each year or leave Australia more than once in each year, although she may stay away over the New Year. It is inappropriate to restrict the time of the trip to any particular period because I do not know what is the most appropriate time for the wife and [E] to visit [overseas]. That time is likely to change from year to year.
117The wife is not likely to abuse her right to travel with [E] by, say, denying the husband his Christmas school holiday contact each year. Once [E] commences school, I do not expect the wife to permit [E] to miss too much school by arranging visits [overseas] which impinge on school term. I am not of the view that it will disadvantage [E] to miss some school for the sake of a holiday [overseas]. A trip [overseas] […] will usually be of great overall benefit to a child despite missing some school.
We discern no error in the trial Judge’s reasons and conclusions about this issue.
(b) travel with the child to Adelaide
The wife’s father lives in Adelaide.
The trial Judge said:
119Although the wife wishes to be able to take [E] to visit her grandfather in Adelaide twice a year, I am not satisfied that [E] would be able to appreciate going to Adelaide to see her grandfather rather than having him come here sufficiently for the next few years to warrant denying [E] the frequent contact she needs with the husband, especially as she is likely to spend some weeks each year [overseas]. I do not think, therefore, that it is necessary, until she attends school, for [E] to travel to Adelaide in preference to her grandfather coming to Sydney to see her. Once [E] attends school, there will be adequate opportunities for the wife to take her to Adelaide during school holidays without the need for a specific order.
We see no error in his Honour’s treatment of this issue.
That the trial Judge misused his advantage in assessing the reliability of the evidence (ground 4)
We see no error in his Honour’s treatment of the evidence.
Errors of fact (ground 13)
The only factual mistake which the father established was that paragraph 33 of Cohen J’s reasons reads:
The husband took [E] to see [Dr F] on 17 March
In fact it was the mother who took [E] on that day. In the context of the surrounding paragraphs, we have no doubt that the trial Judge was well aware that it was the mother who took [E] to see [Dr F], not the father. The reference to “the husband” was clearly just a slip.
Conclusion
It follows from our discussions of the grounds, in none of which we have found merit, that the appeal should be dismissed.
Costs
Counsel for the child representative sought costs in the event of the appeal’s dismissal.
Information provided about the father’s financial circumstances lacks clarity. We consider that the result justifies an order for costs and accept the estimate given.
ORDERS
That the appeal be dismissed.
That the appellant father pay the costs of the independent children’s lawyer, of and incidental to the appeal fixed in the sum of $3,684.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 16 March 2007
ANNEXURE A
Bias
The trial Judge gave rise to a reasonable apprehension of a fundamental misapplication of principle as well as bias and prejudice, when his Honour stated that questions directed to the following, amongst others, were “not major issues”, and that the appellant would need to convince his Honour that they were “major issues rather than minor incidents;”
a)An incident described in a report to the Department of Community services by the mother psychologist that “when [M] was two she lost it once and kept hitting him on the back of the legs till they were black and blue because he started to regress in his toilet training (Due to domestic violence and his parents breaking up).”
b)An incident deposed by the mother in her affidavit sworn 25 October 2005 where she struck her then 4 year old son in the head with such force that the child said “Mum, I’ve got a headache and I can’t see properly” and the mother’s deposed response “I asked him not to lie and tell me the truth.”
c)The failure to seek medical treatment for the above incident (b).
d)An incident where the mother “snapped” in the shopping center
e)Another incident resulting repeated blows including to the head of her infant son, where the mother was quoted by the Department when investigating the incident as saying she was “beyond reasoning, lost control and once I click that’s it.”
f)The non-disclosure of the above incidents by the mother to her treating psychiatrist
g)The mother being put on Risperdal by her treating psychiatrist.
h)The Risperdal was to “Block aggression. ‘Gives me a chance to think before acting.’.”
i)He mother discontinuing the above medication without informing her treating psychiatrist.
j)The mother failing to attend the next scheduled appointment with her psychiatrist.
The trial judge gave rise to a reasonable apprehension of a fundamental misapplication of principle in his reasons for judgment by referring to the treatment of the respondent mothers sone by the respondent mother as “inappropriate discipline” as well as describing incidents deposed by the appellant as “trifling”.
Notwithstanding the misapplication of principles, the trial judge erred and gave rise to a reasonable apprehension of bias by failing to apply such principles between the parties in an impartial manner, giving disproportionate weight to issues and incidents adverse to the appellant.
The conduct of the trial Judge during the course of the hearing raised a reasonable apprehension of bias and/or either in combination or severally, denied the appellant a fair trial;
a)His Honours treatment of the appellant in that it was aggressive, abrupt and at times abusive. This had a destabilising, discouraging and ultimately debilitating effect on the appellants abitity to effectively present his case.
b)The manner nature and frequency of the trial Judges interventions and interjections during the appellants case, during cross examination and submissions, resulted in the appellant being unable to properly advance matters essential to his case and [E’s] best interests or present coherent evidence and effectively question witnesses.
c)The manner, nature and frequency of the trial Judges interventions and interjections and treatment of the husband compared to his Honours treatment of the respondent wife raised a reasonable apprehension of bias.
d)The breadth of issues the mother was permitted to address in her cross examination compared to the strict limitations imposed on the appellant raised a reasonable apprehension of bias.
e)The standards in relation to the admission of evidence imposed by the trial Judge on the appellant compared o the respondent wife and the childs representative raised a reasonable apprehension of bias.
f)The dramatically different manner in which the trial judge dealt with each party raised a reasonable apprehension of bias.
The conduct of the trial Judge, his honours treatment of the appellant during the course of the hearing, and his honours reasons for judgment establish an actual bias against the appellant, in that;
a)His Honour committed repeated demonstrable egregious errors in both the course of the hearing and in his Honours reasons for judgement.
b)The effects of these ‘errors’ were exclusively to the detriment of the appellant and his case.
c)Numerous adverse findings and the interpretation of events are inconsistent with contrary to and in some cases contradicted by the evidence,
d)His Honour acted with partisanship and over hostility toward the appellant throughout the duration of the hearing that overt hostility permeates his honours reasons for judgment.
e)His Honours conduct and statements clearly establish his honour was unwilling or unable to be persuaded out of his honours express views.
f)His Honours’ conduct was antithetical to the appellants interests,
g)His Honour failed to inquire into, and obtain readily available and important information immediately before him that related to central matters for determination.
h)His Honour acted with partisanship and overt hostility toward the appellant throughout the duration of the hearing.
i)His Honour acted contrary to and disregarded the rules and law he was obliged to apply, consequentially breaching his judicial oath.
Denial of natural justice
The following occurred in the lead up to the trial that prevented the appellant having a fair opportunity to effectively present this case, and as such amounted to a denial of natural justice;
a)Being denied access to crucial subpoenaed material resulting in the appellant being unable to present coherent evidence and effectively question witnesses.
b)Being served with 3 additional affidavits by the respondent mother 4 days before the final hearing, one of which the trial judge placed a significant degree of reliance.
The trial judge erred in exercising his discretion given the nature and gravity of the issues involved for determination by attaching so much weight and placing the emphasis he did on expediting the hearing to the point that [E’s] best interests and the appellant receiving a fair hearing became subjugated by and incidental to a quick resolution of the case.
Denial of procedural fairness
In the course of the trial the following occurred resulting in an absence of procedural fairness being afforded to the appellant and errors in the exercise of discretion giving rise to an apprehension of bias by the trial Judge:-
a)Trial Judge failed to ensure procedural fairness was afforded to the appellant to ensure a fair trial.
b)Trial Judge failed to inform the appellant of the manner in which the trial was to proceed.
c)Trial Judge failed to inform the appellant of any procedures relevant to the litigation.
d)The trial Judge failed to advise the applicant of any submissions and applications that ought to, or may have been put to the court.
e)The trial Judge failed to advise the applicant of his right to object and/or the nature of objection to be taken.
f)The trial Judge failed to advise the applicant of any procedural steps that may have been taken.
g)The trial Judge failed to advise the appellant of his rights in relation to privileged documents.
h)On numerous occasions questions were asked by the mother and the child representative to which proper objection could have been made without the appellant being given any express opportunity to raise objection to any particular question.
i)The trial Judge failed to adjourn at the request of the appellant, which was a reasonable request in the circumstances.
j)The manner in which the trial Judge outlined the process and procedure of giving oral evidence and being cross examined to each of the parties immediately prior to each entering the witness box to give evidence raised an apprehension of bias.
The trial Judge erred in the exercise of his discretion and denied the appellant procedural fairness by his Honour interposing two witnesses at the beginning of the hearing before the respondent mother had given evidence and without his Honour explaining the possible disadvantages to the appellant of this course and without his Honour informing the appellant of his right to object or affording the appellant the opportunity to do so particularly given his honour sated the previous day that the respondent mother would be first to give evidence.
The trial judge erred in the exercise of his discretion in the manner in which his honour conducted the trial particularly though his honours application of the rules, practices and procedures in that it resulted in at the very least an apprehension of bias and a significant denial of procedural fairness to the appellant.
That the trial Judge was influenced by inappropriate conduct of the child representative
The Trial Judge erred in the exercise of his discretion to the extent he was influenced by accepted or relied upon the submissions of the child representative in that they were materially misleading, contradicted by the facts and/or complete fabrications including but not limited to the following;
a)In relation to the evidence [Dr F], “His assessment was that the injury was not indicative of physical abuse of the child and your Honour will recall that in conclusion he submitted to your Honour that his overall assessment was that [E’s] behaviour was consistent with emotional abuse by someone in the family and that was likely to be the father”, which is a complete fabrication.
b)In relation to the evidence of [Ms R] “she said that the Department were in contact with the mother whenever these matters were raised. And on each occasion they were satisfied the mother showed insight into the difficulties she had and sought appropriate help.” which is a complete fabrication.
c)In relation to the evidence of [Ms R] “She also confirmed that she had received some reports with respect to [E] since the orders of May which were the consent orders that provided for [E] to be in the mother’s full-time care, and they were investigated and there was no further action taken by the Department, which is a complete fabrication.
d)That there was no evidence of [E] undergoing any examinations for sexual abuse.
e)In relation to the evidence of [Dr M] “I’d also add, and [Dr M] has mentioned this this morning, he responds poorly to criticism and he’s also prepared as I’ve also mentioned to seek out professional advice so long as that reinforces his view of what’s appropriate.” which is a complete fabrication.
The conduct of the Child representative denied the appellant a fair trial and gave rise to a reasonable apprehension of bias.
The appellant was denied procedural fairness by the conduct of the child representative affecting his ability to adequately challenge evidence that the trial judge placed a significant amount of weight and by;
a)The child representative failing to file the affidavit of [Dr M] in accordance with the direction of the honourable Justice Lawrie that all affidavits the parties intended to rely on be filed by 30 September 2005.
b)Only becoming aware that the child representative was intending to continue to rely upon the affidavit of [Dr M] when the child representative served her outline of case document on the appellant the morning of 1 November 2005.
The conduct of child representative in both the lead up to, and during the course of the trial, through her acts and omissions, wilfully and deliberately engaged in professional misconduct, resulting in the appellant having to in effect fulfill the role of the Child representative which amounted to a denial of procedural fairness. The child’s representative;
a)Knowingly and deliberately allowed the court to be misled.
b)Failed in their paramount legal and ethical duty of candor to the court.
c)Did not take any necessary steps to inform the court that the expert report of [Dr M] contained significant material misrepresentation and significant material omission of evidence and failed to comply with Part 15.5 of the Family Law Rules.
d)Continued to rely on the report and opinions of [Dr M] despite that the fact that she knew or reasonably ought to have been aware that the expert report was fundamentally flawed as a result of the application and affidavit of 21 July 2005 of the appellant and the hearing before the honourable Justice Lawrie on 5 August 2005.
e)Relied on and knowingly filed in the proceedings the false affidavit of [Dr M] and/or allowed a sworn false affidavit to be submitted to the court.
f)Failed to tender any documents that objectively a child representative would ordinarily be obliged to ensure were before the court.
g)Failed to ask questions or adduce evidence that objectively a child representative would ordinarily be obliged to do.
h)During the course of the trial at the bar table gave unsolicited gratuitous advice to the appellant to tender documents at times advantageous to the mother and not to tender other documents and attempted to prevent other material evidence being tendered to the court.
i)Interrupting and interjecting when witnesses gave oral evidence adverse to the position taken by the child representative even though the evidence was relevant to risks to which [E] was, and will be exposed.
Error in exercise of discretion
The trial Judge erred in the exercise of his discretion in relation to the determination of an unacceptable risk by;
iFailing to find the subject child [E] is exposed to an unacceptable risk of physical, emotional, and psychological harm while residing with the mother and being in the mothers day to day care.
iiFailing to find the subject child [E] is exposed to an unacceptable risk of physical, emotional, and psychological harm while in the unsupervised care of the respondent mother.
iiiFinding that the appellant poses an unacceptable risk to [E].
The trial Judge erred in finding that [E’s] best interests are best promoted by residing with and being in the sole care of the respondent mother rather than the appellant.
The trial Judge erred in his discretion in that matters to which his honour did not specifically refer, particularly incidents of violence and physical, emotional and psychological abuse inflicted on both children by the respondent mother, given their objective significance, would have, or ought to have had a profound, if not determinant influence of the exercise of his honours discretion.
The trial Judge erred in his discretion in that evidence to which his honour did not specifically refer or apparently consider, given its objective significance, would have, or ought to have had a profound, if not determinant influence of the exercise of his honours discretion.
The trial Judge in making crucial findings in relation to [E’s] emotional state in the period following the mother beginning unsupervised contact, failed to properly attend to all the evidence central to those findings, as such, his hours conclusions as to the cause of [E’s] emotional disturbance, the conclusions made by his honour about the mother’s role and conduct in relation to that disturbance and his finding that the disturbance is now “solved”, and are fatally flawed.
The trial Judge erred in failing to have any regard to the effect on [E], or in his honours assessment and conclusions of the mother, of the repeated examinations for sexual abuse only weeks apart, the second of which occurred when [E], the previous day, was considered to be so emotionally and psychologically traumatized that a general physical examination was not possible.
The trial Judges findings fail to recognize, appreciate or address the seriousness of the allegations and issues in relation to the respondent mothers pattern of abusive behaviour particularly given the weight of the evidence clearly establishing a propensity to abuse over a prolonged period.
The trial Judge erred in exercise of his discretion in making finding related to the respondent mother that were not open to him on the available evidence or were findings against the weight of the evidence including but not limited to:
i.The mother had successfully overcome her problems.
iiThe mother was likely to seek help for both herself and the children.
iii.[E] will benefit from the mother being a role model
iv.The mother has insight.
v.The mother does not pose a risk to [E’s] physical emotional or psychological welfare.
vi.The mother admits she has serious faults.
vii.That the mother will not obstruct a relationship between [E] and the appellant or her paternal relatives particularly the paternal grandmother.
His Honour erred in the exercise of his discretion in placing the reliance that he did on;
i.The report, recommendations and evidence of [Dr M].
iiThe opinion and evidence of the respondent mother.
iii.The submissions and case of the Child Representative.
The trial judge erred in the exercise of his discretion by failing to properly attend to the evidence in finding that there was insufficient evidence to establish that a relationship between [E] and her half-sibling was not in her best interests.
That the trial Judge erred in accepting [Dr M’s] evidence
Trial Judge erred in an apparent misapplication of the rule of practice commonly known as Browne v Dunn to the extent the rule is applicable given the appellant outlined in his application and affidavit sworn 21 July 2005 and his affidavit sworn 29 September 2005 the extensive misrepresentation, significant material omission and fundamental flaws in the report of [Dr M].
The trial judge erred in rejecting the evidence of the appellant in his response to the report and observations of [Dr M] in circumstances where the appellants evidence was inherently probable, logically consistent, had not been denied or answered in evidence by [Dr M], had not been directly challenged in cross-examination by the child representative and had been substantially corroborated by the documented evidence and the respondent mothers affidavit.
The trial judge proceeded on an apparent misapprehension as to the purpose of the appellant raising issues related to the limitations and omissions of the report and evidence of [Dr M], in that the limitations were not raised to highlight evidence that ought to and should have been adduced, but that the evidence of [Dr M], due to the limitations ought to have been rejected or given little weight.
Specific issues (a) passport and travel with the child [overseas]
The trial judge erred in the order allowing [E] to be taken [overseas] in that;
a)The process and premise his honour used to conclude there was no risk to [E] in making such an order was flawed.
b)The reasons his honour stated to conclude there was no risk to [E] in making the order were not supported by and against the weight of the evidence.
c)The trial judge further erred in failing to afford the appellant during the hearing when this issue was raised a right to object or make submissions as to why such an order should not be made.
d)The trial judge failed to give any or sufficient weight to the fact that [the travel destination] is not a signatory to the “Hague convention”.
e)The trial judge failed to give any or sufficient weight to the evidence of the mothers admitted history of frustrating, obstructing and denying a child’s right to contact with a parent and significant family members, and failing to facilitate or appreciate the importance of such contact.
Specific issues (b) travel with the child to Adelaide
The trial judge erred in finding there was no evidence against making orders permitting [E] travelling to Adelaide.
That the trial Judge misused his advantage in assessing the reliability of the evidence
The trial Judge erred in making findings of fact that depended to any substantial degree on the credibility or demeanour of the parties in that his honour failed to use or palpably misused his or advantage and/or acted on evidence which is inconsistent with facts incontrovertibly established by the evidence and/or which is glaringly improbable.
Errors of fact
The trial judge in his reason for judgement made repeated material errors of fact and exercised his discretion upon the basis of erroneous findings of fact to such an extent that;
a)Amount to appealable error.
b)Constitute a discernable pattern from which a reasonable inference of bias could objectively be drawn.
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Appeal
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