MYRON & MILSON
[2020] FamCAFC 151
•19 June 2020
FAMILY COURT OF AUSTRALIA
| MYRON & MILSON | [2020] FamCAFC 151 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals against orders that he have no contact with the children – Family violence – Risk of emotional and psychological harm to the children – Best interests of the child – Procedural fairness – Application to adjourn trial dismissed – Trial conducted without father’s participation – Where father did not apply to reopen the trial – Failure to apply to vary or set aside orders – No error established – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – REOPEN APPEAL – Where the father sought to adduce further evidence on appeal and later sought to reopen the appeal for the purpose of adducing further evidence – Evidence of limited probative value – Reopening to address evidentiary weakness exposed at appeal hearing – Both applications dismissed. FAMILY LAW – APPEAL – COSTS – Where the father wholly unsuccessful – Father an undischarged bankrupt – Costs order made in favour of the mother. |
| Australian Constitution s 73 Family Law Act 1975 (Cth) Pt VII, ss 4(1), 60CC, 93A(2), 94, 117(4) Family Law Rules 2004 (Cth) r 17.02 |
| Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9 Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125 Farmer & Rogers [2010] FamCAFC 253 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Langley & Tarelli and Anor (No. 2) (2020) FLC 93-963; [2020] FamCAFC 126 Moller v Roy (1975) 132 CLR 622; [1975] HCA 31 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Watkins & Watkins (2004) 31 Fam LR 590; [2004] FamCA 381 |
| APPELLANT: | Mr Myron |
| RESPONDENT: | Ms Milson |
| INDEPENDENT CHILDREN’S LAWYER: | TLG Law |
| FILE NUMBER: | BRC | 3628 | of | 2018 |
| FIRST APPEAL NUMBER: | NOA | 18 | of | 2019 |
| SECOND APPEAL NUMBER: | NOA | 26 | of | 2019 |
| DATE DELIVERED: | 19 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Watts JJ |
| HEARING DATE: | 31 October 2019 and further written submissions received |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 February 2019; 22 February 2019 |
| LOWER COURT MNC: | [2019] FamCA 69 [2019] FamCA 84 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wilson QC |
| SOLICITOR FOR THE APPELLANT: | Waller Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Downes |
| SOLICITOR FOR THE RESPONDENT: | KLM Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Taylor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | TLG Law |
Orders
The Application in an Appeal to adduce further evidence in the appeal filed on 17 October 2019 be dismissed.
The Application in an Appeal to reopen the appeal filed on 21 February 2020 be dismissed.
Appeal NOA 26 of 2019 be dismissed.
The father pay the mother’s costs of and in relation to the appeals in the amount of $12,999.90 within twenty-eight (28) days.
The Application for costs by the Independent Children’s Lawyer be dismissed.
Notation
Appeal NOA 18 of 2019 was withdrawn.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Myron & Milson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Numbers: NOA 18 of 2019; NOA 26 of 2019
File Number: BRC 3628 of 2018
| Mr Myron |
Appellant
And
| Ms Milson |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 22 February 2019, parenting orders were made in relation to the parties’ four children pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The effect of those orders was to confer sole parental responsibility for the children on their mother, Ms Milson (“the mother”), for the children to live with her and to not have contact with their father, Mr Myron (“the father”). The father, who is a solicitor, filed an Application to adjourn the trial on the Friday immediately preceding the Monday when the trial was listed to commence. That application was also listed for hearing on the Monday. Although the father did not appear on the Monday or arrange to have someone appear for him, he emailed documents to the Court which showed that over the weekend he attended two doctors who certified he suffered an unstated medical condition and was unable to attend court. The mother and the Independent Children’s Lawyer (“ICL”) appointed to represent the children’s interests, opposed an adjournment and it was refused.
Although the primary judge accepted that the father has a history of anxiety [53], the medical certificates were “deficient” [54] and insufficient to establish that he “suffer[ed] from a medical condition of such significance that requires an adjournment” [40]. However, it was the effect of an adjournment on the children that was given greatest weight which in turn was closely followed by the impact that an adjournment would have on the mother. She was the only viable carer for the children and any diminution in her parenting capacity would adversely affect the children [61].
It is not possible to overstate the trauma which beset this family after the parties separated in late 2015. Orders were made against the father for the mother’s protection, and more recently for the protection of her partner, the children and others. The two elder children have threatened suicide and required in‑patient psychiatric care. The eldest child stopped mainstream school and absconded interstate. He was charged with indecently dealing with his sister and falsely accused the mother of sexually assaulting him. The father snatched one child on Easter Sunday 2018, which resulted in him being charged and the mother and the three younger children moving into emergency accommodation because they were scared about what the father might do next.
The mother managed to reunite the children and there was a fragile stability to this smaller family unit which saw the children faring as well as might be hoped. But the strain on the mother of ensuring the children’s needs were met was enormous and there was an obvious imperative to finalise the proceedings so as to enable the mother to care for the children without the attendant stress of this litigation.
Much more could be said, but at this point it is sufficient to say that the mother and children’s situation has been dire and at the time of trial the three elder children opposed any contact with the father. The youngest child wanted to see the father but he was anxious that the father would take him.
It is against this background that the primary judge accepted evidence given by the family report writer as to “the crisis which has engulfed the family” [60] and of which the primary judge said:
60.… [The family report writer] noted that both older children had been highly depressed with suicidal angst and the risk to their welfare was the priority then and remains a priority now. In [the family report writer’s] opinion:
[The eldest child] still presents as vulnerable, depressed and emotionally raw and there is a sense that he is trying to find some direction. A mainstay for him is the bond he has renewed with his mother.
61.Both [the elder children] have expressed very negative feelings about the father. [The family report writer] describes the family as being:
…at a fragile equilibrium, the welfare of the older children is at a critical point, and I think the capacity of the family (particularly the parents) to manage arrangements cohesively and peacefully, is more important in this family than most, even in the highly litigious arena of this Court.
I am doubtful that this can occur here, and it is my view that the welfare of all four children will be severely compromised if their mother’s confidence and obvious capacity to care for them was weakened, and the possible benefit of them spending time with their father would be negligible if this were to be a possibility.
The father presented two appeals, the first (NOA 18 of 2019) sought leave to appeal the primary judge’s dismissal of his application that the trial be adjourned. The second appeal (NOA 26 of 2019) concerns the final parenting orders. Generally speaking, an interlocutory order which affects the final result can be challenged in an appeal against the final judgment (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 478. Whilst there may be some limits to that rule, before us it was accepted that the father could challenge the refusal to grant an adjournment in the appeal against the final orders. Thus, the adjournment appeal was withdrawn and the arguments made in support of that appeal became part of the appeal against the parenting orders.
Two applications filed in the appeal must also be considered. The first application was filed on 17 October 2019, by which the father applied to adduce as further evidence in the appeal, an affidavit by Dr U affirmed on 16 October 2019. Dr U is a general medical practitioner. He saw the father on 10 February 2019 and is the author of one of the medical certificates emailed to the Court in support of an adjournment. Annexed to Dr U’s affidavit is his report dated 7 October 2019, which provides an account of his consultations with the father and a more detailed explanation about why he said the father was unable to attend court at the time of the trial.
The second application was filed on 21 February 2020 to reopen the appeal so as to adduce a further report from Dr U dated 24 January 2020. Dr U has now diagnosed the father as having Bipolar One Disorder and provides further information about the father’s inability to participate in court proceedings at the time of trial and while judgment was reserved.
The applications are opposed by the mother and the ICL. It was agreed that the application to reopen the appeal would be determined without an oral hearing.
Brief Overview
So as to provide context to the appeal, it is necessary to refer to some background facts.
The parties commenced cohabitation in 1997 and were married in 2000. They have four children: B who was born in 2003, Z who was born in 2005, X who was born in 2009 and Y who was born in 2011.
The parties separated in 2015, albeit they continued to reside in the family home. An incident occurred in early 2016 which resulted in the first protection order being made against the father for the protection of the mother. The father consented to the order, without admissions on 3 March 2016, for a period of two years.
Following the incident which resulted in the protection order, the mother left the family home (in about January 2016) and moved into rental accommodation. The parties were able to agree about the children’s living arrangements and a routine developed whereby the three younger children’s time was divided approximately five nights per week with the mother and the remaining two nights with the father. For the younger children, there was a period of equal time too. However, the mother retained the younger children in 2016 because of alleged physical abuse by the father towards their daughter. Something of an impasse developed and in about May 2016, the eldest child stopped spending time at the mother’s house. The parties’ daughter resumed spending time with the father, as did her younger brothers, but the amount of time she spent with him was reduced. From that time until April 2018, the eldest child had contact with the mother when the younger children were delivered or collected and on special occasions.
The children spent 25 March 2018 with the father. That evening, the parties’ daughter told the mother that during the afternoon her elder brother attempted to have sexual intercourse with her. The mother took their daughter to a children’s hospital where a medical examination corroborated the allegation. Doctors reported the matter to the Department of Communities (Child Safety) and advised the mother to report it to Queensland Police, which she did. Thereafter, the mother withheld the three younger children from the father and on 28 March 2018, the mother’s solicitors wrote to the father to this effect.
The eldest child spoke to the father about the incident with his sister and, according to the father, he disclosed that he had been sexually abused by the mother when he was about 10 or 11 years of age.
On 30 March 2018, the father took the eldest child to a police station where, with the father present, the boy was interviewed by police.
The father decided that the parties’ daughter was the instigator of the sexual contact between the siblings and that there was a risk to the two younger boys from her and the mother. Between 29 March 2018 and 31 March 2018 the father telephoned numerous agencies (including police) seeking advice about the situation. Ultimately, he came to the view that he would snatch the boys. An elaborate plan was developed to take them on Easter Sunday. Even the father’s account is chilling. It is sufficient to observe that he and the eldest boy lay in wait in the wee hours of the morning, a getaway car was arranged and an awful scene unfolded at the mother’s partner’s home on Easter Sunday morning. The father managed to take X and the elder boy’s attempt to grab Y was foiled when the mother’s partner locked the child in the house.
With two boys in his possession, the father went on a trip. He was arrested on 3 April 2018 and taken into police custody. Arrangements were made for the two boys to go to a paternal aunt. Police interviewed the eldest child for a second time concerning the allegations of sexual abuse he had made against the mother, but on this occasion, the father was not present. X was returned to the mother on 4 April 2018 and arrangements were made for the elder child to stay with friends. An application was made by police for a temporary protection order in favour of the mother, which was granted.
On the mother’s application, interim parenting orders were made by consent, for the elder child to continue to live with family friends and the three youngest children to live with the mother.
The mother was interviewed by police on 12 April 2018 in relation to the allegation that she had sexually abused the eldest child. The following week, accompanied by the friends with whom he had been staying, the eldest child attended police and retracted his allegations against the mother. He told the family report writer that the allegation was false and made under his father’s influence.
During April 2018 the eldest child disclosed suicidal ideas and in May 2018, the parties’ daughter was admitted to the mental health unit of a children’s hospital. Both children were self-harming. By then, criminal law processes concerning the sexual contact between the siblings were underway as were charges laid against the father and his partner concerning the incident on Easter Sunday.
The family law proceedings were transferred to the Family Court of Australia and came before the primary judge on 8 June 2018. Interim orders were made for the two younger children to have supervised time with the father and the process commenced to take the matter to trial.
At the behest of the ICL, the parties attended Dr Q, who is a psychiatrist, so that a report could be provided for the Court. Of the father, Dr Q said in his report dated 21 August 2018:
On cross sectional assessment there was no evidence of psychosis. [The father] is concerned about the mother’s infidelity, but it did not appear to be held with delusional conviction and was based on his own experiences. He may well have developed a depressive disorder in the context of recent stressors, with pronounced anxiety, as well as neurovegetative disturbance, for which he sought appropriate treatment, but there was not any ongoing evidence that he was suffering from a Major Depressive Disorder. He does describe long-term difficulties with anxiety, consistent with a Generalised Anxiety Disorder, as well as obsessive-compulsive personality traits, as well as past anger management issues.
In relation to the mother, Dr Q said:
On cross sectional assessment I could find no evidence of any major metal illness, in particular there was no evidence of psychosis or Major Mood Disorder. She does report some mood and anxiety symptoms in the context of the current dispute and some associated neurovegetative disturbance, but certainly did not present cross sectionally as being burdened by a Major Depressive Disorder nor an Anxiety Disorder, and that this would best be described as an adjustment reaction.
In the meantime, a family report was ordered and, based on his interviews, including with the children, the family report writer said that as at 22 August 2018:
216.At the point of publication of this report, the crisis of the family has continued to escalate. The fragile mental health of the older children are of great concern. There are different features to this; [Z] has problems with anxiety, depression and self-esteem and she requires – and is conducive to – very close personal support.
217.The risk to [B] is different. He is very angry but his plight in my view is his perception that he has no family to which he can return. He is at a sensitive point of adolescent development in any case, is probably defensive about accepting any help, and whilst it might be conceived that he is rejecting help or support, my view is that his internal sense is one of abandonment.
218.His relationship with his father is damaged for a number of reasons, some of which have been already noted. The more significant breach is now that of [B’s] claim that his father put him up to making allegations against his mother and his father’s denial of the same. His relationship with his mother is contingent upon when he can settle long enough to conclude the restorative justice process and whether he could adjust to living at home with her and the other children given the passage of time and events.
219.If the Court were to accept the views expressed above, and pending other findings in relation to incidents of which this writer is unaware, it is firstly my view that it is not in the interests of either [Z] or [B] to have contact with their father at this stage. I am [of] the view that the time between the younger children continue on an unsupervised basis until it can be considered at future proceedings.
220.The nature of the risks to both children will at time require immediate responses and decisions. Although it is not usually the practice of this writer to comment upon the exercise of parental responsibility, I am of the view that this matter is an exception, in that the capacity to make quick decisions about the children is very relevant to their safety and future welfare. I am of the view that the mother is better placed to do so, at least on an interim basis.
(As per the original)
It should be noted that the elder children continued to struggle and both returned to hospital in relation to their mental health.
At supervised contact on 27 January 2019, X refused to spend time with the father and only Y did so.
An updated Family Report was obtained and by a report dated 30 January 2019, the family report writer said that:
·the two elder children did not want to see the father and were opposed to the younger children continuing a relationship with him;
·the elder children made the younger children aware of these views;
·the elder children’s feelings about the father had had an effect on X, who was easily swayed and his anxiety easily aroused, all the more so given what occurred at the Easter Sunday incident; and
·Y was happy to see the father and wanted to spend time with him.
As to the ultimate disposition of the matter, the family report writer recommended:
111.Added to this is the intense and fractious disposition of [the father]. If the Court were of the view that this is the case, and that it is likely to continue, it raises the question as to whether it would be destabilising for the children in [the mother’s] care and affect their sense of security. I am of the view that this is a significant risk for the children, more so in this family wherein they have been very dependent on their mother’s resilience.
112.There is a benefit to [Y] and [X] if arrangements with their father can be properly managed, and not cause an increase in stress. There is an historical attachment between them with many common interests which came out in the first assessment, when both boys clearly identified with him. A continuing bond with him would be positive for their developing identity as long as it does not add any further stress to that which they have to historically endure.
113.The family is at a fragile equilibrium, the welfare of the older children is at a critical point, and I think the capacity of the family (particularly the parents) to manage arrangements cohesively and peacefully, is more important in this family than most, even in the highly litigious arena of this Court.
114.I am doubtful that this can occur here, and it is my view that the welfare if all four children would be severely compromised if their mother’s confidence and obvious capacity to care for them was weakened, and the possible benefit of them spending time with their father would be negligible if this were to be a possibility.
On 4 October 2018 the final parenting hearing was set down for seven days commencing on 11 February 2019. Throughout October – December 2018 and January 2019, each of the parties filed affidavits, including by supporting witnesses. The father filed applications for interlocutory orders and a detailed Notice of Risk of Abuse. As well as the two family reports, the Court had evidence from Dr Q and five Magellan reports.
On 7 February 2019, the father filed an application to adjourn the trial for a period of three months or such time as ordered. In an affidavit filed in support of that application, the father deposed:
·although he had inspected documents produced under subpoena, his counsel had not and there was a disagreement following which, on 7 February 2019, his counsel ceased to act;
·although the father had the carriage of his own matter, his employer advised that they were unwilling to remain on the record unless counsel was arranged for the hearing;
·the father contacted about 40 barristers and asked that they appear on his behalf at trial pro bono but no one agreed;
·in a report dated 30 November 2018, Dr BB, who is a psychologist, reported on her assessment of him undertaken the same day and said he lacked the capacity to manage the proceedings;
·the remaining trespass charge (stalking and wilful damage charges had been withdrawn) arising from the Easter Sunday incident was set down for a summary hearing on 12 February 2019; and
·he sought the appointment of another court expert.
The trial continued for four days and judgment was reserved and given on 22 February 2019.
Grounds of Appeal
By his Amended Notice of Appeal filed on 28 May 2019, it is said that the primary judge erred by:
·proceeding to hear and determine the merits of the application for final parenting orders in the absence of the father (Ground 1);
·making orders that the father not spend time with the children (Ground 2);
·restraining the father from communicating with the children (Ground 3); and
·referring the father to relevant professional bodies, including without hearing from him first (Grounds 4 and 5).
Four specific challenges were raised against the decision to refuse the father’s application for an adjournment. Specifically, that the primary judge erred:
·in the assessment of the merits of the father’s application for an adjournment (Ground 1);
·in exercising the discretionary power to adjourn in an unreasonable manner (Ground 2);
·by failing to afford the father procedural fairness on his application for an adjournment (Ground 3); and
·by failing to give reasons as to why an adjournment was not in the best interests of the children (Ground 4).
It is common ground that in deciding whether to grant or refuse an application for an adjournment of parenting proceedings, the best interests of the child is the paramount consideration. This does not require the Court to apply s 60CC of the Act, for example, but it does require that the decision should serve and certainly not thwart the best interests of the child (Langley & Tarelli and Anor (No. 2) (2020) FLC 93-963 at [28]; Farmer & Rogers [2010] FamCAFC 253 at [197]). These principles are discussed in greater detail in Cooke & Morton (2018) FLC 93-820 (“Cooke”) which also concerned the approach to parenting orders made in the absence of a party.
We agree with what is said in Cooke and highlight the principle that a party to litigation has “a prima facie entitlement to have the proceedings heard in the party’s presence and to be given an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made” [33]. Next, that parenting orders made under Part VII of the Act are never final in terms of determining once and for all the rights of any party (Cooke at [37]). Thus, natural justice considerations apply to parenting proceedings but there may be countervailing considerations which pertain to the welfare of a child that will be of even greater weight (Cooke at [43]).
The assertion that the father was denied procedural fairness on his application for an adjournment is appropriately considered first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128). Other than to make the assertion, nothing more was said in relation to it in the father’s Summary of Argument filed in the appeal. However, in oral addresses the submission was made that more should have been done by the Court to enable the father to participate on 11 February 2019 and by the Court and the ICL, to establish precisely what had occurred at the hospital and the medical centre. We know of no obligation reposed in a court to make such enquiry and to gather evidence so as to supplement a party’s case for an adjournment.
Furthermore, given that the father is a practising solicitor and he had effective management of the proceedings in the Federal Circuit Court and then this Court over a prolonged period, it could have been safely inferred that he understood his medical certificates were deficient and that his emails to the Court were unlikely to be persuasive of an adjournment. However, the primary judge left nothing to chance and as soon as the emails came to light, the Court attempted to ensure that the father understood that an appearance was required and, that if the application for an adjournment was not granted, the trial would proceed as listed. There was nothing more that the Court could or ought reasonably to have done.
As to the submission that the ICL should have made contact with the father’s medical practitioners and ascertained, for example, the presently unidentified medical condition attributed to the father, we fail to see how, without the father’s consent, that information could have been given. The point being, the father was the person with control over that information and it was his decision to rely on limited information.
The Adequacy of the Medical Evidence
Turning then to the challenge made concerning the assessment of the merits of the father’s application for an adjournment. The submission is made that the primary judge ought to have been satisfied that the totality of the medical evidence established that the father was unable to participate in a trial commencing 11 February 2019. In a skilful attempt to avoid the obvious deficiencies in the medical certificates, it is submitted that because they were obtained at a time of crisis, those deficiencies should have been overlooked. We do not agree. It is no small matter to adjourn a parenting trial concerned with the welfare of extremely vulnerable children. The mere assertion of unfitness for work or inability to attend court, even by a medical practitioner, is unlikely to carry weight. It is expected that some explanation is given concerning the person’s medical condition and, unless the consequences of the condition are obvious, some explanation as to why the person is unable to attend court is necessary. This can be done briefly and it is not suggested that in the circumstances of this case, busy medical practitioners were expected to provide lengthy medical reports. However, the paucity of information provided in the medical certificates as to the underlying facts and the basis upon which the conclusion as to incapacity was reached, more than justifies the primary judge’s decision to give them little weight.
The next question to be answered is whether there was other evidence which ought to have persuaded the primary judge, with or without regard to the medical certificates that the father lacked the capacity to represent himself at the time of trial. This is a reference to the approach taken to reports provided by Dr BB and Dr CC, referenced at paragraphs [41], [42] and [45] of the adjournment reasons. As has already been mentioned, Dr BB assessed the father as lacking the capacity to manage the proceedings. Dr CC, who is a psychiatrist, agreed, and in a letter written to Legal Aid Queensland dated 3 December 2018, said that the father’s anxiety disorder meant that he did not have the capacity to represent himself in any of his current legal matters. At paragraphs [43]–[46] of the adjournment reasons, the primary judge analysed those reports and noticed factual matters of which neither medical professional was aware. It is apparent that significant weight was given to the father’s active participation in the proceedings, which included attending court, during the period when both of them said he lacked capacity [43]. In other words, the primary judge took into account facts which were not known to the psychologist and psychiatrist and saw that those additional facts undermined their opinions as to his capacity.
The primary judge then considered a more recent medical report provided by Dr CC which said that as at 14 January 2019, the father reported a significantly improved mental state which the doctor accepted. On his own account, he had not required psychotropic medication for more than two weeks and had been fully compliant with the doctor’s recommended treatment. Notably, the doctor did not repeat her earlier opinion concerning the father’s incapacity. An updated report by Dr BB was also considered which supported the father’s position that he spend time with the children and, we observe, did not repeat the earlier observations as to his lack of capacity.
It is not accepted that the primary judge should have given greater weight to the earlier medical reports, nor that the opinions as to the father’s lack of capacity demanded greater weight than his demonstrated capacity to participate and manage the court process. Otherwise it would have been mere speculation for the primary judge to consider that the unspecified conditions referred to in the medical certificates had any nexus to the matters raised in the earlier of Dr CC and Dr BB’ reports. The primary judge did not err in the approach taken to the medical evidence.
The next aspect of this challenge concerns paragraphs [38] and [49] of the adjournment reasons which address whether an adjournment would improve the father’s prospects of retaining counsel to appear at trial. It was understood that counsel would be asked to appear pro bono and the one counsel who had agreed to appear on that basis had withdrawn. During the period when the father says he lacked capacity to conduct the proceedings, he made enquiries of 40 counsel but all declined to appear for him. It is accepted that the timing of those enquiries meant that the chances of finding counsel on short notice and for a reasonably long trial under these conditions were slim. However, it was open to the primary judge to conclude that even with an adjournment and greater notice to counsel, the father’s prospects of securing representation were still slim. We do not agree that the conclusion to this effect is erroneous.
The next issue concerns the approach taken to the effect of an adjournment on the children. The primary judge expressed the view that “[a]n adjournment of this trial is not, in my opinion, going to be in [the children’s] interests” [58]. The challenge is expressed thus:
There was no evidence before the learned primary judge that a short adjournment of the final hearing would have an adverse impact on the children. At the time of the hearing, only the youngest child was spending any time with the father. The statement made in the last sentence of paragraph 58 of the Reasons is without any adequate reasoning. That is, of course, appellable error.
(Father’s Summary of Argument filed 9 September 2019, p.5 paragraph 19)
This submission ignores the primary judge’s observation that the Court could not say with any confidence when a further five to seven days of hearing time might become available. The implication being, that it was not safe to proceed on the basis that an adjourned trial would take place shortly. We have already recorded very worrying matters about the children, particularly the elder children. These factors were properly taken into account, as were paragraphs 4 to 7 of the mother’s affidavit filed on 31 January 2019, which recount her very great distress caused by the proceedings. These matters amply explain the conclusion that an adjournment would not be in the best interests of the children.
As has been demonstrated, the primary judge exercised her discretion to grant or dismiss the application for an adjournment carefully, by reference to the correct principles and the relevant facts and without error.
The Applications to Adduce Further Evidence and to Reopen
It is thus necessary to consider the two Applications in an Appeal. Both applications seek to establish that the father was too ill to attend the trial commencing 11 February 2019. The Application to Adduce Further Evidence engages s 93A(2) which gives this Court a discretion to receive on appeal further evidence upon questions of fact. As a general proposition, only evidence which, if accepted, would demonstrate that the order under challenge is erroneous should be admitted (CDJ v VAJ (1998) 197 CLR 172) (“CDJ”). Furthermore, where the appeal concerns the upholding, varying or setting aside of a parenting order, the effect that evidence may have in determining what is in the best interests of the child is a factor of great weight (CDJ at [88]).
It is also uncontroversial that this Court has the power to reopen proceedings following the hearing of an appeal and whilst judgment is reserved (Watkins & Watkins (2004) 31 Fam LR 590 (“Watkins”) at [28]). Watkins established that the principles governing the exercise of power to reopen an appeal hearing for the purpose of receiving further evidence are analogous, if not identical, to the principles governing the power to allow further evidence to be adduced on the hearing of an appeal [31]. However, the power to reopen is not to be exercised “for the purpose of reagitating arguments already considered by the court” nor “simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put” (Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 (“Autodesk Inc”) at 303).
The application to adduce further evidence
It will be recalled that Dr U is the author of one of the medical certificates that the primary judge determined was inadequate. By his report dated 7 October 2019, Dr U provides information none of which, other than the date of the consultation, was given in the certificate. In this report, Dr U explains that he saw the father for one hour and 45 minutes on 10 February 2019. This was the first time he met the father albeit the father had been a patient at the practice since 2003. Dr U understood that the father was under the care of a psychiatrist and a psychologist and he was compliant with prescribed medication. The father gave a history of chest pain, left neck tightness and pain, which symptoms commenced on Thursday night after his counsel withdrew. The father attended an emergency department on the Saturday night where he had a normal electrocardiogram (ECG) and blood results. However, the father’s symptoms continued to deteriorate and when Dr U saw him, the father was distressed and crying, his thoughts were disjointed and he poked his tongue out to gain relief from severe throat tightness.
Although no mention is made of it in the medical certificate, Dr U said he diagnosed the father as having somatoform disorder which is a psychiatric condition marked by multiple, medically unexplained, physical or somatic symptoms. He pointed out that it can take years for the disorder to become evident and thus, the diagnosis should be viewed as tentative and provisional. Dr U was of the opinion that the father was acutely severely sick and possibly at risk of mental or physical collapse with any further concurrent stressors. Hence, Dr U was of the opinion that the father was unfit to attend Court up to and including 16 February 2019. Attached to Dr U’s affidavit is a referral letter addressed to Dr NN dated 25 February 2019, a medical certificate for Centrelink and another medical certificate but with no addressee which certifies that the father is unfit to attend court “from 16/02/2019 to 01/02/2019 inclusive, apart from appearing briefly to excuse his attendance”. The referral letter suggests that the father consulted with Dr U on 18 February 2019 and that the father reported feeling less distressed.
In opposing the receipt of this evidence, the mother pointed to evidence which demonstrates that the father was able to participate in other court proceedings at that time or to at least arrange to have someone attend on his behalf and which otherwise demonstrates that he was far from being incapacitated. For example, the father’s emails sent to the Court which, albeit brief, are coherent and apt. More tellingly, she points to his affidavit dated 12 February 2019 filed in the parenting proceedings. The father is the author of the affidavit and he sets out in logical detail the position concerning the charges against him arising out of the Easter Sunday incident and advances argument as to the significance to the parenting proceedings of changes in his bail conditions made by a Magistrates Court on 12 February 2019. In the final portion of his affidavit, the father analysed the effect of those changes thus:
There has been a significant amendment in the type and number of bail conditions which I am subject to, reflecting that the Magistrates Court does not consider that I am [not] an unacceptable risk to [the mother] or [the mother’s partner] or anyone else.
(Father’s affidavit filed 13 February 2019, paragraph 7)
By reference to the trial transcript, there was consensus before us that the father retained counsel to appear on his behalf at the Magistrates Court on 12 February 2019 and the same day the father attended a police station to meet his bail conditions and enter into new bail conditions. The certifying police officer was satisfied that the father understood the nature and extent of the obligations and conditions of his bail.
The mother contends that this affidavit is also significant for what it does not disclose. For example, the father gives no evidence about his movements on 11 February 2019, there is no evidence from him that he attended a doctor or hospital, as he intimated to his employer he might. No explanation is given as to how he was able to retain counsel to appear for him in the criminal proceedings but is silent about any attempts to secure counsel to prosecute his adjournment application or to apply to reopen the proceedings after the initial period Dr U said he was incapacitated had expired.
We agree with the mother that this further evidence demonstrates that the question as to whether the father was unable to participate in the trial and/or to seek an adjournment is far from clear cut.
It also needs to be borne in mind that the trial continued for four days after which judgment was reserved. It is common ground that the father did not pursue any application after 16 February 2019 to reopen the evidence prior to the delivery of judgment. Nor was any application made by the father pursuant to r 17.02(1)(a) of the Family Law Rules 2004 (Cth) (“the Rules”) to vary or set the judgment aside. Of course, any such application would have required that the father established a reasonable explanation for his failure to attend on 11 February 2019 and to take steps to participate prior to the delivery of judgment, and as this hearing has demonstrated, to permit the evidence upon which he relies to be tested. The father’s failure to take those steps weighs heavily against the exercise of discretion in his favour.
The application to reopen
As to the application to reopen, the father submits that the more recent evidence (including the second report from Dr U) should be received by this Court as it demonstrates that the father has Bipolar One Disorder and that he was suffering with the disorder at the time of trial. It is submitted that the evidence is “highly probative” of the issue to be determined, namely whether he was unable to participate in the trial when his application for an adjournment was refused (father’s Written Submissions filed 2 April 2020, paragraph 14). The mother submits that the further evidence cannot be relevant to this issue, as the father abandoned his appeal against the order dismissing his application for an adjournment. This submission misstates the facts for, although the father abandoned his appeal against the adjournment order, the appeal proceeded on the understanding that this issue would be dealt with in the substantive appeal (Transcript 31 October 2019, p.3 lines 9–19).
The mother correctly points out that the medical evidence the father now seeks to introduce is at odds with the other medical evidence on which he relies. Prior to obtaining Dr U’s diagnosis of Bipolar One Disorder, the father had been referred to and/or attended upon four psychiatrists and one psychologist, each of whom considered that he had an anxiety disorder. The father attended Dr Q in 2018, Dr CC in 2018 and 2019, Dr MM in 2019, he was referred to Dr NN in 2019, and had seen Dr BB. None of these practitioners made a diagnosis of Bipolar Disorder (or any provisional diagnosis of Bipolar One Disorder) and one specifically rejected it.
Evidence of a mental health diagnosis made almost one year after the time at which the father contends he was suffering with the condition has limited probative value. And even less value when the general practitioner who now makes the diagnosis did not himself make that diagnosis at the time. Furthermore, Dr U suggested to Dr MM, who is a specialist in the field, that it be considered and then took it upon himself to reject Dr MM’s opinion that he did not have it. Whatever limited probative value Dr U’s opinion might then have, is destroyed by the evidence given by Dr CC which did not reveal any diagnosis or speculation of Bipolar Disorder of any type, but rather indicated that the father was coping better with the symptoms of his Generalised Anxiety Disorder.
As to Dr U’s revised opinion that the father was medically unable to participate in court processes for the longer period up until when judgment was given, that is after 16 February 2019 as stated in his certificate, this evidence falls foul of the principles in Watkins and Autodesk Inc in the sense that it is called to address an obvious evidentiary weakness exposed during the appeal hearing.
Again, it was open to the father to apply to present this evidence in support of an application to vary or discharge the orders pursuant to r 17.02(1)(a) of the Rules. This evidence would have been tested and a determination made having regard to all the medical evidence and other facts relevant to the father’s capacity. His failure to take those steps weighs heavily against the exercise of discretion in his favour.
As we have already explained, in deciding to proceed with the trial, greatest weight was given to the welfare of the children and the effect that prolonging the proceedings would have on the mother who was their primary carer. The primary judge was right to recognise these as pivotally important matters and that the best interests of the children should drive the determination of this question. The father has failed to establish that he was denied the opportunity to participate in the hearing or that there has been a denial of procedural fairness. But even if he was, the children’s particular needs justified the decision to proceed.
It follows that the challenge raised against the decision to proceed with the trial has not been made out.
Were the orders in the Children’s Best Interests?
Grounds 2 and 3 of the Amended Notice of Appeal assert that the primary judge erred by making orders that the father not spend time with the children and restraining him from communicating with them. There is no challenge against the orders granting the mother sole parental responsibility or that the children live with her, nor in relation to her Honour’s obviously correct statement of the principles by which the case would be determined. No submissions were made in support of these grounds and as best we can discern, the contention became that had the primary judge considered the father’s evidence, somewhat different orders might have been made. It is submitted that unspecified evidence might have been different or bore a different complexion (father’s Summary of Argument filed 9 September 2019, p.5 paragraph 21). In what manner was not explained.
In deciding that the children should not spend time with the father or communicate with him, the primary judge considered evidence of family violence perpetrated by the father against the mother. The primary judge took into account evidence given by the mother on the point but also placed real weight on admissions made by the father. For example, the father admitted to:
38.…
a)“most always” using power and control over the mother during their marriage to get his own way;
b) “definitely” engaging in verbal abuse involving using words as a weapon, ridiculing, name-calling, yelling etc.;
c) Engaging in emotional abuse of the mother involving humiliating, degrading or demeaning her through put downs, accusations, emotional withdrawal and refusing to speak for extended periods of time etc.;
d)Initially in the relationship, engaging in social abuse involving constantly putting down the mother’s friends and family;
e) Sexually abusing the mother on one occasion;
f) “I accept that I have been guilty of intimate partner violence and this is because I have been controlling through a power imbalance”.
The father made further admissions to the family report writer and in relation to that evidence and statements made by the children, the primary judge said:
42. Despite the father’s failure to admit the violence for the purpose of the protection order made in 2016, during an interview on 27 June 2018 with the family report writer… the father admitted frequently abusing the mother verbally including calling her a “bitch” often, and that there had been “two or three (physical) incidents”. The father admitted an incident at separation where - “I put my hands around her neck and I said to her, you’re lucky I wasn’t like Baden-Clay”. The father also accepted during that interview that the mother was “very scared” during the latter incident but said his intention was to frighten the mother but not to hurt her. This does not make his actions any less culpable.
43.It is apparent, given the admissions made by the father and the information provided by the children to [the family report writer] and the mother’s evidence, that the children were exposed to the father’s family violence over many years. Last year [B] told his treating clinical social worker, [Ms II], that he remembers witnessing family violence perpetrated by his father against his mother from age 6 and reported feeling stress and fear from that age. He also recalled his paternal grandfather (who lived with the family) intervening when his father would become verbally abusive to his mother and his father verbally abusing his grandfather.
Regard was had to threatening emails/texts sent by the father to the mother and the father’s account of the Easter Sunday incident. Particular weight was placed on the father’s lack of insight into the inappropriateness of his conduct on Easter Sunday which was demonstrated during his interviews with police and the family report writer.
Evidence given by the father’s sister about the father’s abusive treatment of her was taken into account but with the caveat that the father did not have notice of her evidence and in the circumstances, it went untested. Thus, although this evidence was accepted, it is clear that it is the evidence attributed directly to the father via police records and interviews with the family report writer that compel the finding that the father has engaged in family violence to which the children have been exposed. The primary judge was also concerned about the circumstances under which the eldest child came to make what he admitted were false accusations of sexual abuse against the mother and, although it was understood that the father denied doing so, the child’s account of being coached by the father to make false allegations about his mother was accepted [81].
The father’s conduct was such that he posed an unacceptable risk to the children of family violence and of psychological and emotional harm.
Consideration was thus given to whether and how those risks might be ameliorated. Reference was made to the two younger boys’ experience at a contact centre between June and October 2018 which had been a positive one for the children. However, the contact centre withdrew their services including, for the following reasons:
84.…
a)…
b) The amount and content of correspondence received from the father was a significant concern;
c) The tone of the father’s communication was harassing if not aggressive;
d) The subtle manipulation of the children by the father during supervised time was considered to be too difficult to manage; and
e) The father ignored some of the conditions under the service agreement.
The incoming supervisor had been unable to persuade a clearly distressed X to see the father [86].
The children’s views were particularly important. The elder children spoke to the family report writer with obvious affection for the mother and there was no doubt that they had strongly rejected a relationship with the father. Their particular vulnerabilities were examined at [94]–[100] where evidence given by those children’s social workers of the mother’s cooperation and support for the children was accepted. Despite the mother’s best efforts discussed at [102]–[103], the elder children had communicated their negative views of the father to the younger children [110]. However, it was the Easter Sunday incident which had a profound impact on X and by January 2019, he refused to see the father. Y still wanted to see his father and on the last occasion they had contact, was “happy and affectionate with him” [111].
Against this background the primary judge concluded:
112.I accept [the family report writer’s] opinion that there are “obvious benefits [to the little boys] if they were able to have a relationship with their father such as continuing the sense of identity and attachment that they have had with him, and that generally is of great benefit for development … as a child goes through adolescence and afterwards”. I also accept [the family report writer’s] opinion that there are risks associated with the little boys having no relationship or contact with the father because it may cause them to become oppositional or to idolise the father in his absence. However, I note the response of the children to the receipt of Christmas gifts. [B] broke down in tears and spoke angrily about his father. The little boys have not returned to play with the gifts they received. [Z] reacts angrily to any mention of the father.
113.In [the family report writer’s] view the risk to [B] and [Z] (given their history of depression and anxiety) must remain a priority. I agree. Despite some significant improvements, [B] still presents, according to [the family report writer], as “vulnerable, depressed and emotionally raw”. It is important that a “mainstay for him is the bond he has renewed with his mother”.
114. [The family report writer] opines:
99.The way forward for this family is a tenuous one. There are strengths. [The mother] has demonstrated a commendable capacity to balance the needs of the older children with the external pressure of the judicial system (in terms of [B’s] route through the justice process and also in this Court), and her bond with [B] is not just better, but the mainstay of his support. The welfare of both children [B and Z] has at times been simultaneously extremely precarious, and the fashion in which she has balanced and addressed their needs is creditable.
…
104.… [The father] also leaves the impression of being intensely self‑absorbed. It is difficult for this writer to gauge what allowance should be given to him if his psychological or emotional state is considered [a] factor in this area of his presentation. One problem is that he has difficulty understanding the immense task that [the mother] has had to stabilise the children, and I think that he has made that task more difficult for her, and may continue to do so.
(As per the original)
We cannot see how, even with the father’s participation in the hearing, a result other than that which was ordered could have been in the best interests of the children. There was a too substantial body of evidence from third parties about the children’s experiences of the father, their particular needs for the mother to be in a position to be able to competently parent them, for the father’s simple denial of his role in how they came to feel the way they do to change the outcome. Sensibly, no doubt, no submission was made to the effect that cross‑examination of the family report writer or others concerning their dealings with the children might have altered the evidence and recommendations made about the children.
On our review of the evidence, including that filed by the father for the trial, we are satisfied not only as to the correctness of the result but that the father’s participation in the trial could not have possibly produced a different result (Stead v State Government Insurance Commission (1986) 161 CLR 141).
Referral to Professional Body
As has already been mentioned, the father is a solicitor with a current right to practice in his home state. By Order 9, the primary judge requested the local senior registrar to forward extracts of the trial reasons to the Law Society of Queensland and the Legal Services Commission “for their consideration of what if any action, to take against [the father]”. Appeals to the Full Court of the Family Court from a judge exercising original jurisdiction are governed by s 94 of the Act. Relevantly, s 94(1) provides:
(1) Subject to sections 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a)a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i)under this Act; or
(ii)under any other law…
…
(Note omitted)
“Decree” is defined in s 4(1) of the Act as “decree, judgment or order and includes: (a) an order dismissing an application; or (b) a refusal to make a decree or order”.
The father’s contention is that because the referral request was issued as an order, it is a decree from which there is a right to appeal to the Full Court. The words “decree, judgment or order” have the same meaning as the words “all judgments, decrees, orders…” in s 73 of the Australian Constitution (Moller v Roy (1975) 132 CLR 622 (“Moller v Roy”) at 625). The words “judgments, decrees, orders” refer to the formal orders which the court may make, “whether in the form of a judgment strictly so‑called or a decree, order or sentence” (Moller v Roy per Barwick CJ at 625). In Commonwealth v Mullane (1961) 106 CLR 166 (“Mullane”), the High Court considered whether a ruling on a point of law amounted to a judgment, decree or order (or sentence). The High Court determined it did not and there was no right of appeal. It needs to be understood that in Mullane, the primary judge delivered reasons and a document was drawn up which was expressed as an order. The Court at 169 said of the ruling and order; “[i]t did not, in our opinion, amount to a judgment still less to a decree; it did not amount to an order… It is outside the terms of s. 73 of the Constitution and this appeal has no foundation in any curial order which is appealable”. It follows, that merely because the referral request issued on a document called an order, does not make it an order to which a right of appeal is attached.
In Day v Perisher Blue Pty Ltd(No 2) [2005] NSWCA 125 (“Perisher Blue”) the NSW Court of Appeal conducted a show cause hearing in relation to whether solicitors should be referred to the Legal Services Commissioner of NSW. Speaking of the nature of such a referral, the Court of Appeal said:
20.The proposed reference by the Court to the Legal Services Commissioner is no more than that. The Court is not persuaded that the judgment of 11 April 2005 and this judgment and the appeal papers should not be referred to the Legal Services Commissioner. What follows is a matter for the Legal Services Commissioner in terms of his powers under the Legal Profession Act 1987…
21.On further reflexion the Court regards it as preferable that the reference be made forthwith. It will then be a matter for the Legal Services Commissioner, no doubt after reference to any submissions put to him, to determine whether any investigation proceed immediately or await the outcome of a new trial.
The combined effect of Mullane and Perisher Blue as applied to Order 9, is that it is neither a judicial order nor a decree. It follows that the father is unable to invoke the appellate jurisdiction of this Court in relation to it. However, before passing from this topic, we think it would have been preferable for the primary judge to have invited submissions from the father as to whether or not the referral would be made. The approach adopted by the NSW Court of Appeal as evidenced in Perisher Blue is the preferable course.
Conclusion and costs
Error has not been established and the appeal will be dismissed. In these circumstances, the mother and the ICL each sought that the father pay their costs. The father resists the application and it is submitted that he cannot afford to pay costs. The father is an undischarged bankrupt and working as a solicitor about six hours each week. His financial circumstances are obviously difficult and it is accepted that an order for costs would cause him financial hardship. The effect of s 117(4) of the Act is that in these circumstances an order for costs cannot be made in favour of the ICL.
However, impecuniosity is no bar to an order for costs in favour of a party. The mother is in receipt of a grant of Legal Aid and costs in the amount of $12,999.90 are sought. Notwithstanding the father’s financial circumstances, he elected to run the risk that he might face an order for costs. An order for costs will survive his bankruptcy and would not be a futile exercise. It is submitted that the father’s lack of success amounts to justifying circumstances for an order. We agree and see no reason why the Legal Aid Commission should not have its costs. The amount sought is appropriate.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Watts JJ) delivered on 19 June 2020.
Associate:
Date: 19 June 2020
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