NJG & KSPG

[2006] FamCA 668

[2006] FamCA 668

JFNJGKSP

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA 68 of 2005
File No. BRF 3025 of 2003

IN THE MATTER OF:

NJG

Appellant/Mother

- and -

KSPG

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:  Coleman, May & Boland JJ
DATE OF HEARING:         27^th and 28^th days of February 2006
DATE OF JUDGMENT:     27^th day of July 2006

APPEARANCES:                 The appellant mother appeared on her own behalf.

The respondent father appeared on his own behalf.

Ms Hogan of Counsel, (instructed by Grant & Associates, PO Box 657, Everton Park  QLD  4053) appeared on behalf of the children.

Name of Appeal  NJG & KSPG
Appeal Number  NA68/2005
Date of Appeal hearing  27^th & 28^th days of February 2006
Date of Judgment  27^th day of July 2006
Coram  Coleman, May, Boland JJ

Catchwords:   Appeal against orders awarding residence to respondent father and providing for contact between two children and appellant mother.  

Appellant contended that trial Judge failed to have regard to records from the Police and/or the Department of Child Safety – None of the parties, in particular the appellant who was then represented by counsel, sought to put such material before the trial Judge – complaint unsuccessful.

Appellant argued that trial Judge failed to have regard to respondent’s mental illness – Trial Judge considered expert evidence and his finding with respect to the current state of the respondent’s health was open to him on the evidence.

Appellant made various complaints concerning weight given to experts’ opinions by the trial Judge – Nothing emerging from experts’ affidavits nor transcript of proceedings indicated errors on the part of trial Judge.  

Application to adduce further evidence unsuccessful – CDJ v VAJ (1998) 197 CLR 172 applied.

Appeal dismissed
Appellant ordered to pay costs of children’s representative

1. By Notice of Appeal filed 14 September 2005 the mother appealed against orders made on 22 August 2005 by Jordan J in proceedings between the mother and the father.  The father has resisted the mother’s appeal and sought to maintain the trial Judge’s orders.

2. The orders provided that the children of the parties reside with the father and have contact with the mother from after school Thursday to the commencement of school Monday in each alternate week, for one half of school holiday periods and on other special occasions.  The orders also provided for telephone contact.  A number of other specific issues orders were also made. 

3. On 21 November 2005 the mother filed an affidavit seeking that documents therein identified be “included” in the material before this Court. Although not so expressed, the application would appear necessarily to be an application for leave to adduce further evidence pursuant to s 93A(2) of the Family Law Act (1975) (Cth) (“the Act”).  The father opposed such application.

4. It appears from the Summary of Argument filed on behalf of the children’s representative on 17 February 2006 that the children’s representative does not support the mother’s appeal.  On the hearing of the appeal such lack of support was confirmed by counsel for the children’s representative.

THE REPRESENTATION OF THE CHILDREN ON THE HEARING OF THE APPEAL

1. When the appeal was called on for hearing, Ms Hogan of counsel announced her appearance on behalf of the children’s representative.  The mother objected to such appearance, submitting that the trial Judge’s orders had terminated the appointment of the children’s representative and that there was accordingly no basis upon which the children’s representative was entitled to appear or be heard.

2. Ms Hogan referred the Court to a number of provisions of the Family Law Rules (2004) (“the Rules”), in support of her contention that the children’s representative was entitled to be heard in the appeal.

3. It is apparent from the mother’s submissions in support of her opposition to the children’s representative being heard on the appeal that the mother has numerous complaints about the conduct of the children’s representative during the course of the trial before Jordan J. 

4. Whilst it is not this Court’s function to explore such matters, we record that nothing to which the mother has referred us, nor our own reading of the appeal books, including the transcript of the trial, causes us to have any reservations as to the children’s representative’s conduct or motivation at trial or on the hearing of the appeal, or to suspect that the children’s representative has done other than seek to promote the best interests of the welfare of the children as the children’s representative perceives them to be on the evidence available to him.

5. Ms Hogan readily confirmed that, if permitted to appear, her submissions would not assist the mother in the appeal.  That, however, would not be a basis for refusing to allow the child representative to make submissions on the hearing of the appeal, if such representation was considered to be in, or consistent with, the children’s best interests. 

10.  There is an obvious anomaly in the interests of children being represented at the trial of proceedings relating to their welfare yet not represented at the hearing of an appeal arising out of such proceedings.  Nothing to which the mother referred the Court persuaded us, to the extent that an order reviving the children’s representation might be needed, that such order would not be consistent with the children’s best interests.  The Court accordingly, to the extent that such order may be necessary, so ordered.

11.  Given that the mother was unrepresented, and that counsel for the children’s representative was not supportive of the appeal, the Court directed that the mother have the benefit of hearing the submissions of counsel for the children’s representative prior to making her own submissions.

BACKGROUND

12.  The parties were married to each other in December 1992, separated under the one roof in January 2003 and effected a final physical separation in August 2003.

13.  At the date of the trial Judge’s judgment the father was 56 years of age and the mother was 38 years of age. 

14.  The two children the subject of the proceedings were VBG born 1993 and JSG born 1996.  At the date of the trial Judge’s judgment the children were almost 12 and 9 years of age respectively.  Subsequent to separation the children primarily resided with the mother but had regular and significant contact with the father.

15.  Contested proceedings with respect to residence of the children commenced to be heard in May 2004.  During the course of such hearing the proceedings were resolved and consent orders entered into providing that the children reside with the mother and have contact with the father on two nights per week in alternate weeks and three nights per week during the intervening weeks.

16.  Disputes in relation to the children at the end of 2004 gave rise to renewed litigation, and on 4 February 2005 interim orders were made providing that the children reside with the father and have contact with the mother on the basis then defined.

17.  These background facts are recorded by the trial Judge and are not controversial.

THE TRIAL JUDGE’S JUDGMENT

18.  Having provided the background referred to above, and identified the competing proposals of the parties, the trial Judge made a series of findings by way of introduction to the dispute. These included the finding that “the parties and their children have endured a highly conflictual relationship”, and that the parties have been “unable to manage their separation without continuing high levels of animosity and conflict” (Judgment, paragraph 8).

19.  His Honour found that the “relationship difficulties” between the parties had been:

9.   … exacerbated, if not partly caused, by the fact that the parties come from different cultural backgrounds, have very different values, very different personalities and very different parenting styles. 

Their conflict had “resulted in extensive involvement with various authorities, including the police, welfare agencies, school authorities and therapists” (Judgment, paragraph 9).

20.  Reference was made to the fact that the parties had “been the subject of multiple assessments, including no less than four family reports”.  His Honour concluded that each of the reports “emphasises how the conduct of the parties … has resulted in the children becoming embroiled in the conflict and exposed to serious emotional compromise”.  Notwithstanding “clear warnings”, “serious issues in the children’s relationships with their parents remain a very real concern” (Judgment, paragraph 10).

21.  His Honour referred to the “litany of complaints” which each party raised with respect to the other and the nature of those complaints namely “aggressiveness and violence”, “mental and emotional instability” and having “inappropriately involved the children” (Judgment, paragraph 13).

22.  Having referred to particular complaints made by each party about the other (Judgment, paragraphs 14 and 15) the trial Judge noted that there had been:

16.  … only limited acceptance of any real responsibility by either of the parties and, to the extent that there have been some concessions, I need to observe that they come from the father alone.

He concluded that such attitudes had been responsible “for the difficulties in the relationship and for the ongoing problems with the children”.

23.  The trial Judge found it “difficult to assess the truth of matters alleged” by reason of the “lack of insight, the lack of any balance in the versions” of events advanced by each party.  He found there to be “at least elements of exaggeration, embellishment or opportunism used by each of the parties” (Judgment, paragraph 17).

24.  In the circumstances, his Honour considered that “the most reliable review emerges through the four welfare reports which cover a substantial period from October 2003 to July 2005” (Judgment, paragraph 18).  The reports had been prepared by Ms L (October 2003 and February 2004) and Ms B (February 2005 and July 2005).  His Honour observed that “a not very pretty picture emerges from those reports” (Judgment, paragraph 18).

25.  A number of references were then made to each of the four reports.  Having reviewed the reports his Honour recorded that:

28.  At the time of her final report in July 2005, Ms B observed that VBG had not resiled from his strong wish to reside with his father.  Sadly, he was also expressing a wish to only have minimal contact with his mother.  VBG was observed to be expressing exclusively negative views about his mother and exclusively positive views about the father.

26.  He further said:

29.  VBG's relationship with, and his attitude towards his mother, is a matter of real concern.  It is little short of a tragedy that an 11 year old boy would hold the view that one of his parents is not deserving of any respect.  It is regrettable in the extreme that he would be defiant of his mother, feel free to physically challenge his mother and capable of saying that he does not want to have any significant contact with his mother.

27.  The trial Judge then considered “the cause or causes of this most unfortunate turn of events” (Judgment, paragraph 30).

28.  Having referred to the mother’s response to the matters raised in the family reports, and particularly those in the last of such reports, his Honour recorded that:

30.  … the mother’s solution suggests that there is only one source of the problem, as far as VBG's presentation is concerned.  She would argue that the father is that sole source.  I have reached the firm view that that is not the case.

29.  The trial Judge recorded that “[a]ll of the report writers have been struck by the mother’s very vitriolic and nasty attitude towards the father” (Judgment, paragraph 31), for reasons which he detailed, and suggested that:

32.  One … should not be unduly critical.  The Court needs to be understanding of the mother's strong feelings.  As she perceives it, she has been the victim not only of a failed relationship, but also one that has been highly dysfunctional and conflictual.  However, what is different and concerning in this case is the extent of the mother's ongoing animosity.  Firstly, it appears to be unabated, if not intensified.  Secondly, it would appear that she has been unable to shield her children from the intensity of her attitude towards their father.

30.  His Honour noted that “[t]he children have told each of the report writers of their observations about the negative things that the mother says about their father”, that “the children provide some corroboration for their father’s contention that their mother finds it difficult on occasions to maintain and contain her anger” referring to “screaming, yelling, shouting and verbal arguments in the mother’s household”, both children reporting “open conflict between VBG and his mother” (Judgment, paragraph 33).

31.  The trial Judge made it clear that he did not conclude that “all that goes wrong in the mother’s household is all the mother’s fault”, accepting that “[w]hat the father has done, or failed to do in the past, has no doubt made it more difficult for the mother in her management of VBG” (Judgment, paragraph 34). 

32.  Also accepted was the reality that VBG “desperately wants to live with his father” whether or not that was “a fanciful view about life with his father, or whether it is a realistic one”, and that VBG had been “manifesting that preference in inappropriate ways, including by being defiant to his mother” (Judgment, paragraph 34).  His Honour concluded that “VBG’s views of his father as all good and his mother as all bad are simplistic and erroneous” (Judgment, paragraph 34).

33.  He also concluded that:

34.  … In this highly conflictual situation, there is a cycle of manipulation.  The father sees himself caught up in the need to respond to the children's concerns.  He now acknowledges that, on occasions, he has done so in ways that have made it more difficult for the mother and have probably been inappropriate.

34.  VBG’s difficulties in his relationship with his mother were found by the trial Judge to be not the “result of a single cause”.  He did not accept that the breakdown in the parental relationship was “as a result of the failings of one partner only”, although his Honour was “not prepared to find that the father is the cause of all the problems and presentations with VBG” (Judgment, paragraph 35).

35.   VBG’s desire to live with his father was not considered “the end of the matter” by the trial Judge, but rather “one of the factors I am required to take into account” (Judgment, paragraph 36).

36.  VBG’s expressed wish was “entitled to considerable weight”, because the child is “almost 12 years of age” and:

37.  … with the notable exception of his unacceptable behaviour and attitude towards his mother, he otherwise presents as a mature, intelligent, capable, young man.  He is a person who has the intellectual capacity and the maturity to understand what he is saying and to have some understanding of the implications of the choices he makes. 

37.  His Honour also had regard to the fact that “he has held these wishes now firmly for a period of two years”, and that whilst there “may well be an element of the grass being greener”, the child “does actually perceive that being with his father presents a better outcome for himself”, “providing a more positive future” with his father with whom he is “aligned” and shares a lot of “interests” (Judgment, paragraph 38).

38.  Regard was had to VBG’s wishes in part “borne of the mutual love and affection that the father and son share” (Judgment, paragraph 39).

39.  The mother’s testimony that she and VBG “share a positive relationship and also share much love and affection” was accepted, despite the “negative aspects of the relationship” to which his Honour had earlier referred.  He concluded that “whilst these incidents are the exception, they are sufficiently serious to warrant careful consideration”. (Judgment, paragraph 40).

40.  Although the younger child was found to have “continued to express a preference to reside with her father” (Judgment, paragraph 41) his Honour concluded that such preference was at least in part referrable to her awareness of her brother’s preference to reside with their father.

41.  His Honour considered that “a very high priority for JSG is to try to put in place something that ends the conflict” (Judgment, paragraph 42), and that her preference to reside with her father was influenced by her observation of “levels of conflict and displays of anger [in her mother’s household] that, perhaps, do not exist to the same extent in the father’s household” (Judgment, paragraph 43).

42.  For the reasons which he thus advanced, the trial Judge took into account the children’s wishes “in a positive sense”.  He then turned to address the question of “the weight to be given to the children’s wishes” and the “viability of making an order against those wishes”.  Reference was made to the evidence of Ms B that “VBG may be unaccepting of such a decision” and his resentment of any separation from his father.  His Honour said in relation to that issue :

46.  Ms B thought that VBG would be likely to express that resentment in verbal and physical altercations with his mother.  She felt that the situation may be impossible to contain, that VBG would sabotage any such arrangements and that he would be likely to seek out his father and vote with his feet.  Again, it is not appropriate that parents or the Court be overborne by such matters if an order placing a child with the mother is clearly to be preferred.  However, it is incumbent upon me to take these important concerns of Ms B into account.

43.  So far as other s 68F(2) factors were concerned, the trial Judge was satisfied that:

47.  … subject to the largely artificial exercise of putting to one side the consequences of the parties’ conflicts and animosity, in isolation, each of the parties presents as being a parent capable of providing these children with a very high standard of care.

44.  Having chronicled the “stark differences in values, in emphasis and in parenting styles” (Judgment, paragraph 48) of the parties, his Honour observed that:

49.  … the striking feature of this case is not so much the differences that the parties have in terms of their perceptions, but the fact that there is really nothing in common between them.

He concluded that, “[n]otwithstanding those criticisms, I am satisfied that each of the parents does have the capacity to meet all of the children’s physical needs”, as well as their educational needs, and that “[t]he parents would bring different strengths and weaknesses to their task as parents” (Judgment, paragraph 49).

45.  The trial Judge acknowledged the “need to make mention of the father’s mental illness and the diagnosed bipolar disorder”, finding:

50.  … as a fact that, on the evidence before me, particularly the medical evidence, his condition is well-managed and controlled.  The father has insight into the condition.  He has been compliant with his attendance for medical assessment.  He has been compliant with his medication regime.  He holds down full-time employment and I am satisfied that his controlled illness does not have an adverse impact upon his parenting capacity, as specified in the medical reports.

46.  He concluded that there was no evidence “which would enable me to draw any adverse conclusions against either of the parties” (Judgment, paragraph 51) in terms of the “mental health and psychiatric well-being” of either party.

47.  The “likely effect of any change” was addressed by the trial Judge, his conclusion being that:

52.  … Subject to the difficulties the children have endured in dealing with their parents’ ongoing conflict, I am satisfied that the children are capable of adjusting to a placement in either household.

48.  The trial Judge considered that “an important advantage that the mother brings to bear … is her greater capacity to allow these children to be children” (Judgment, paragraph 54).

49.  The “need to protect the children from physical harm” was addressed by the trial Judge who recorded:

57.  I regret, given the potential importance of such an issue, that, on the evidence, I remain entirely confused.  I accept that the mother, from time to time, is capable of angry outbursts and expressions of what might be described as verbal abuse.  I accept that, from time to time, she has used physical discipline.  However, because of clear elements of gross exaggeration in aspects of this part of the case against the mother, I do not know where truth begins and ends and where gross exaggeration begins and ends.

50.  His Honour found that the children had been “exposed” to psychological harm “because of the ongoing conflict and because of poor management of the children’s exposure to such conflict” and that “[e]ach of the parties needs to accept some responsibility in that regard” (Judgment, paragraph 59).

51.  He concluded however that:

60.  As between these parties, however, it does seem to me that the father presents as being more able to move on and more able to accommodate the children's relationship with their mother.  The mother has had to deal with not only the breakdown of the relationship, but also the added element of the father's mental instability at times during the relationship.  She has had to deal with very challenging aspects of VBG's presentation.  More recently, she has had to deal with the fact that, as a mother and as a primary caregiver, her position has been usurped by orders of this Court.  She would see those orders as vindicating the father's inappropriate conduct and manipulation of the children.

52.  For reasons which he detailed (paragraphs 61, 62, 63) the trial Judge also concluded that:

64.  … the father is the better equipped of the two candidates to fulfil the vital obligation that each of the parents has in this case, and that is to foster the children's relationship with the non-resident parent.  In the high conflict, the high emotional damage that has been occasioned in this case, I must necessarily look in a positive sense to the parent most likely to promote the children's relationship with the other parent or, to put it negatively, at least the least bad option, and I think the father wins on both counts.

53.  To place the children with the mother was considered “more likely to lead to further conflict” with particular negative implications for VBG and “the heightened prospect of further litigation” (Judgment, paragraph 65).

54.  His Honour concluded that:

66.  A placement of the children with their father represents a resolution which is consistent with the children's expressed wishes.  It is a viable option.  It is one which, on the evidence, in my view, leaves reduced scope for rebellion difficulties and the spectre of litigation canvassed in my earlier observations.

55.  He also concluded that “the primary focus must be to make orders which create the best possible chance for an end to, or at least a reduction in, the conflict for these children” there being “no clear-cut solution” which would achieve that objective (Judgment, paragraph 67), and observed that:

68.  From the material, it appears that the father, VBG and JSG all see a placement with the father as providing this family its best chance for improvement in that outlook in the future.  Ms B also holds that view, and so do I.

56.  The trial Judge perceived “a lot of positives in a placement of these children with their father” in that “such a placement does provide the children with a calmer, quieter environment” (Judgment, paragraph 69).  The father was considered to be “best placed at this time to provide regular contact with, and support of the relationship with, the children’s mother” (Judgment, paragraph 71). The best interests of the children “both in the short term and long term” was thus decided to be with them “placed in the primary care of their father” (Judgment, paragraph 71).

57.  For the reasons which he gave, and which included acceptance that “[i]t is essential that VBG’s relationship with his mother be improved and enhanced and fostered by regular and meaningful contact” (Judgment, paragraph 75), the trial Judge concluded that substantial contact between both children and the mother was in their best interests. 

58.  His Honour considered the “difficult and complex” question of telephone contact and, for reasons which he gave, concluded that “a compromise” in that regard would be in the best interests of the children (Judgment, paragraph 81).

THE GROUNDS OF APPEAL

59.  The mother’s Notice of Appeal identifies six grounds upon which she seeks to challenge the trial Judge’s decision. 

60.  In a Summary of Argument filed on 27 January 2006, the mother, without specific reference to any particular grounds, advanced four “reasons” in support of her contention that the trial Judge’s decision was erroneous.  Those assertions did no more than repeat the grounds of appeal.

61.  In her affidavit sworn 27 January 2006, after stating her “Reasons for appeal”, and providing a “Summary of main points”, the mother set out “Full details on each of the points”.  In the pages which follow, the mother appears to agitate the matters of which she complains appearing in the trial Judge’s reasons for judgment.  As a reading of the document makes clear, the mother appears to have limited understanding of the principles governing the appeal.  Much of the material appears to be submissions based upon facts and circumstances which were not the subject of evidence before the trial Judge, whilst others contend that, on the facts and circumstances as found by him, the trial Judge should have come to some other conclusion.

62.  In the hope that it aids the parties’ understanding of how an appeal to this Court is determined, we briefly identify the principles which govern this appeal.  In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

63.  In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

64.  The latter passage is of particular significance for present purposes.  As the trial Judge was at pains to make clear at numerous points in his judgment, the case before him was difficult, and its outcome by no means clear cut. 

65.  The full details of each of the points canvassed in the mother’s affidavit of 27 January 2006 are not readily referrable to the grounds contained in the mother’s Notice of Appeal.  We propose however, each of the father and the children’s representative having received that affidavit approximately one month prior to the hearing of the appeal, to treat the subheadings appearing in the various paragraphs of the affidavit as superseding the grounds articulated in the Notice of Appeal.  So doing cannot possibly disadvantage the mother.

GROUND 1

The Trial [Judge] disregarded evidence from the Police and the Dept of Child Safety. 

66.  In a number of paragraphs of her affidavit (Appellant’s Summary of Argument, pages 2 & 3) the mother made a series of assertions in relation to a variety of matters.  No attempt was there made to link any of those complaints to any aspect of the trial Judge’s reasons for judgment.  No attempt was there made to refer to any aspect of the evidence at the trial.  The mother’s oral submissions on the hearing of the appeal did not advance the complaints.

67.   It is not specifically identified in the Record of Exhibits that the material to which the mother referred was before the trial Judge, or if it was, that any particular inferences or conclusions were urged upon him in reliance upon such material.  To the extent that the material was not before the trial Judge, there is nothing to indicate that anyone sought to place the material before him.

68.  Whilst the father, who is not a legally qualified person, was unrepresented at trial, the mother was represented by counsel.  The improbability of neither counsel for the mother nor counsel for the children’s representative having tendered in evidence potentially probative Police or Department of Child Safety records had they been available is obvious.

69.  Nothing to which the mother has referred the Court demonstrates error on the part of the trial Judge in relation to “evidence from the Police and the Dept of Child Safety”.  If such evidence was not before him, the trial Judge could not improperly disregard it.  On the contrary, had the evidence not been tendered before him, to have had regard to such material would almost certainly have constituted error on the part of the trial Judge.  We thus find this complaint lacks merit.

GROUND 2

70.  The mother further complained that “the father suffers from bipolar disorder”.  As a reading of the matters raised by the mother makes clear, much of what there appears is in the nature of an attempt to give evidence, or make submissions, which could have been attempted by the mother’s counsel at trial.

71.  The trial Judge was clearly aware that an issue in the proceedings was the father’s mental health.  His Honour expressly acknowledged the “need to make mention of the father’s mental illness and the diagnosed bipolar disorder” (Judgment, paragraph 50). 

72.  His Honour found that, on the evidence before him:

50.  … particularly the medical evidence, his condition is well-managed and controlled.  The father has insight into the condition.  He has been compliant with his attendance for medical assessment.  He has been compliant with his medication regime.  He holds down full-time employment and I am satisfied that his controlled illness does not have an adverse impact upon his parenting capacity, as specified in the medical reports.

73.  Although the mother has not referred the Court to the evidence before the trial Judge, we have examined the evidence for ourselves for abundant caution in case, contrary to the failure of the mother to refer us to such matters, there was anything in the evidence at trial which is capable of supporting her complaint.

74.  On 2 February 2005 Dr W, a legally qualified medical practitioner with expert qualifications in psychiatry, swore an affidavit to which he annexed three reports which he had written in relation to the fathers’ mental health.  Also attached to his affidavit was Dr W’s extensive and impressive curriculum vitae. 

75.  In his most recent report, dated 28 January 2005 and based upon a consultation with the father the previous day, Dr W expressed his opinion as to the current state of the father’s mental health suggesting that “[a]s he is well, there is only a need to review him a few times each year”.  Dr W confirmed that the father’s diagnosis remains as “Bipolar Affective Disorder – in remission”, detailed the father’s current medications and expressed the opinion that the father:

… continues to present as both physically and mentally well. His Bipolar Affective Disorder is extremely well controlled.  There has now been no evidence of any significant mood disturbance since his admission to The Princess Alexander [sic] Hospital Psychiatric Unit for one month from December 1998.  He continually demonstrates good insight into his illness and an understanding of the early warning signs of relapse.  He is [sic] indicated that he is quite happy to remain on medication for the long term and while there has not been evidence of acute exacerbation of the illness for over six years has indicated that he is not willing to risk a relapse by ceasing his medication.

76.  Dr W annexed to his affidavit his earlier reports dated 20 February 2004 and 11 August 2003.  It is unnecessary to refer to those reports, other than to note that they were clearly before the trial Judge. 

77.  Nothing to which we have been referred causes us to consider that the trial Judge’s conclusions with respect to the current state of the father’s mental health were other than open to him on the evidence.  We have not been referred to other medical evidence which casts doubt upon the expert opinions expressed by Dr W. 

78.  Dr W was cross-examined (Transcript of 19 August 2005, page 104 and following) by counsel appearing for the mother.  Counsel for the mother “put certain proposals and statements” to Dr W, largely in relation to the father’s parenting skills. 

79.  The trial Judge, correctly in our view, raised with counsel for the mother the potential probative value of cross-examining Dr W in relation to the father’s attitude “towards the children and parenting” issues in the following terms:

HIS HONOUR: Mr Selfridge, on that point, what is the value of that exercise in that Dr W can give first-hand evidence of his own medical, psychiatric assessments, he can give first-hand report of information he has gleaned from the husband and impressions he has gained of the husband. To draw him unwillingly into making comments about the propositions that you’ve put really invites him to do what is now my sole responsibility, and that is, I now have to make the assessment whether I accept Dr W’s assessment of the husband, whether I accept the propositions that you’ve put, whether if I accept them they reflect against the father’s parenting capacity. It’s really drawing him into matters in issue before the Court and the decision that the Court needs to make, isn’t it? (Transcript of 19 August 2005, page 107)

To which counsel replied:

MR SELFRIDGE: Yes, your Honour, and I accept what your Honour states in relation to the issues in contention and the things of fact.

His Honour then specifically directed counsel for the mother’s attention to the area in respect of which Dr W’s evidence was undoubtedly capable of being probative saying:

HIS HONOUR: The propositions that you’re putting to the doctor are really propositions that you need to put to me by way of submissions to convince me that I wouldn’t put too much weight on Dr W’s assessment because of these factors that have emerged in the course of the trial. Dr W has only had access to the father for his assessment. So I don’t see that – unless they are matters that touch upon his bipolar disorder, that the doctor’s expertise – that these are matters that can be taken up with him, because it’s asking him to speculate on, as you say, partly contested facts. It’s asking him to comment upon facts that aren’t contested. But how one analyses them is my domain, isn’t it? I’ve got to see the wife in the witness box and make my assessments of her as well, haven’t I? (Transcript of 19 August 2005, page 107)

80.  Counsel for the mother, correctly in our view, agreed with the trial Judge’s proposition.  Other than asking Dr W whether it was possible that the father’s Bipolar Disorder was “being managed” but there was “a possibility that it is not and it is having some adverse effect in his everyday life living and dealing and coping with his family environment?” to which Dr W replied “[h]ighly unlikely” (Transcript of 19 August 2005, page 108), no question was directed to Dr W in relation to the state of the father’s mental health.  This is unsurprising, and in no way reflects critically on counsel for the mother.  Dr W, as we have noted, was a highly qualified treating specialist medical practitioner.  It is difficult to see on what basis Dr W’s professional opinion as to the father’s state of health could have been effectively challenged.  We find this complaint has no substance.

81.  To the extent that, though not expressed in such terms, this ground purports to refer to the trial Judge’s findings with respect to the relationship between the father and the mother, nothing there referred to demonstrates that the trial Judge’s conclusion was not reasonably open to him on the evidence before him.

GROUND 3

82.  The mother further complained that “[t]he father’s behaviours have continued to damage the children’s and my lives”.  In various subparagraphs which follow, the mother made a series of submissions, none of which demonstrates on its face any error on the part of the trial Judge. 

83.  No attempt was made to link any of the complaints with evidence before the trial Judge or any finding of the trial Judge or, perhaps more relevantly, failure to make a finding which could or should have been made on the evidence.

84.  Given that the mother was represented by counsel, and that nothing put to us, or discerned by us from our reading of the entirety of the appeal books, raises any question as to the competence of counsel who represented the mother, it is reasonable to infer, consistent with established principle, that counsel for the mother at trial acted upon and carried out the mother’s instructions.

85.  Against that background we have read the totality of the transcript of the trial with particular attention, for the purpose of this complaint, to the cross-examination of the father.  As is apparent from reading the mother’s complaint, and her application to adduce further evidence, a theme there raised relates to the father’s interest in or fondness for pornography (Affidavit filed 27 January 2006, paragraph 3D).

86.  Cross-examination of the father by counsel for the mother occupied some 60 pages of transcript, during the course of which counsel for the mother closely and, with respect, competently, tested the father on a wide range of relevant issues.  Those issues did not include any involvement of the father with pornography.  It is inconceivable, had he been instructed to do so, or, absent specific instructions in that regard, become aware of material which rendered such a course appropriate and consistent with his instructions, that counsel for the mother would not have tested the father on these matters.  What is revealing and significant in the cross-examination of the father by counsel for the mother is the close correlation between matters there agitated and matters dealt with by his Honour in the course of his reasons for judgment.

87.  We are not persuaded that this challenge has merit.

GROUND 4

88.  The mother next complained “What I have done is best for the children in the short term and why I am the better parent”.  With all due respect to the mother, whose understanding of the principles governing her appeal is clearly, and understandably, limited, nothing raised in any of the subparagraphs in support of this challenge can advance her case.  We do not refer in any detail to what the mother there asserted, it being patently obvious from reading the material that nothing there raised begins to establish appealable error on the part of the trial Judge.

GROUND 5

89.  Under the heading “Contesting statements: REPLY TO S’S AFFIDAVIT”, the mother made a series of assertions, many relating to third parties and matters which appear incapable of having relevance to the proceedings before the trial Judge. To the extent that the complaint does relate to the father’s conduct and/or mental health, nothing there raised advances the proposition that the trial Judge’s conclusions were not reasonably open to him on the evidence before him. It is to be remembered in this context that the trial Judge did not purport to base his conclusions upon such convenient and limited factors as credibility or demeanour of the parties, but rather on the evidence of expert witnesses, all of whom were cross-examined or able to be cross-examined by the mother’s counsel.

90.  The reference to Dr L would appear to be a reference to the affidavit of Dr L filed 23 December 2004. 

91.  Dr L, a psychologist with appropriate and impressive professional qualifications, prepared a report on 20 December 2004 which he attached to his affidavit.  The report was based upon a consultation Dr L had with the father and the two children.  The report confirmed what other expert, and arguably more independent witnesses, suggested in their evidence, namely that the children “currently express a desire to reside with their father”.

92.  Dr L further opined that the father “presents as currently being functionally competent and willing to care for both of his children”.  To the extent that Dr L expressed opinions as to the children’s satisfaction with their current living arrangements, that too was the subject of other expert evidence before the trial Judge.  Whilst it is less than apparent from the reasons for judgment whether, and if so to what extent, the trial Judge relied upon the evidence of Dr L, the evidence of Dr W with respect to the father’s mental health and the evidence of Ms L and Ms B in relation to the children’s perceptions and attachments, supported the evidence of Dr L, and provided a foundation for his Honour’s conclusions quite independently of anything said by Dr L.

93.  Dr L’s affidavit was objected to by counsel for the mother (Transcript of 18 August 2005, page 3), but it does not appear that such objection was upheld, or, following discussion between the trial Judge and counsel for the parties, necessarily maintained.

94.  It would appear (Transcript of 19 August 2005, page 108) that Dr L’s affidavit ultimately formed part of the evidence without Dr L being required for cross-examination.

95.  Even if one accepted, which has not been established, that the trial Judge erred, either in allowing Dr L’s affidavit to be read in the proceedings, or in having regard to it, the availability of and consistency with other evidence, upon which his Honour clearly was entitled to and did rely, deprives this complaint of merit.

96.  The complaint with respect to the evidence of Ms L is expressed in the following terms:

While Ms L generally got the story right, she did not have the qualifications or the experience to relate the father’s behaviour to the symptoms of bipolar disorder. In her last report she tries to explain our conflict as the result of our cultural differences. The father’s and my conflict is not one of cultural differences but my inability to continuously put up with violence, abuse and crazy behaviour from the father. Social workers really need to admit their limitations when asked to provide their opinions. A social worker cannot be expected to know much about the specialized topic of bipolar disorder. Ms L also very obviously fell victim to the father’s charm in her second report. (Affidavit of 27 January 2006, page 10)

97.  We are not persuaded that his Honour placed any reliance upon the evidence of Ms L in support of his conclusions with respect to the father’s mental health.  It is not without significance that his Honour referred to “the medical evidence” in coming to his conclusions with respect to the father’s “mental health and psychiatric well-being” (Judgment, paragraph 51).  Nor is it without significance that the findings made by his Honour closely follow the expressions of expert opinion contained in the evidence of Dr W to which we have earlier referred.

98.  We are thus not satisfied that his Honour’s conclusions with respect to the father’s mental health were in any way tainted by impermissible reliance upon the unqualified expert opinions of Ms L. The complaints with respect to Ms B related to Ms B’s methodology and a number of criticisms Ms B expressed with respect to the mother, a recurring theme being Ms B’s description of the mother as “vitriolic and nasty”.

99.  Nothing emerging from cross-examination undermines the trial Judge’s conclusions with respect to Ms B’s evidence, the focus of which after all was rather on the children’s perceptions and attachments to their parents than the personalities of their parents as such.  Moreover, the trial Judge referred to the very matter complained of with respect to Ms B’s evidence in the course of his reasons for judgment.  He was at pains to make clear the need to “not be unduly critical” (Judgment, paragraph 32) of the mother, for reasons which his Honour explained.

1. Nowhere in his Honour’s judgment can we discern that he embraced Ms B’s view of the mother as “vitriolic and nasty” much less that his reasoning process in relation to the dispute before him was in any way reliant upon or influenced by Ms B’s expression of opinion.  Nothing raised with respect to Ms B establishes that the trial Judge erred in any relevant sense.

2. The mother then referred critically to “Rob Grant” (Affidavit of 27 January 2006, page 11).  We have already referred to the children’s representative’s conduct of this case earlier in our reasons.  The mother’s complaint about the children’s representative is, we discern, without merit. 

3. The “complaint” with respect to Dr M is expressed in the following terms:

   Dr. M has been the only independent psychiatrist employed by the Court to interview the father and me to determine our mental states. Her report should have been made available to the Court at the trial. To not do so was irresponsible of the Child Rep. I hope the judges this time will pay attention to what Dr. M has said. I personally found Dr. M very intimidating, almost frightening. That is probably the reason the father could not “charm” her. This is why I believe hers is the most independent and accurate report.

4. Dr M’s reports were not before the trial Judge.  We have not been directed to any attempt by counsel for the mother or the children’s representative to place any such reports before the trial Judge.  We do not speculate as to why that is so, it being sufficient to record that, as competent and responsible counsel, had counsel representing the mother at trial perceived that so doing was potentially advantageous to her case, that no doubt would have occurred. Nothing to which we have been referred suggests that Dr M’s report should have been before the trial Judge.  This complaint cannot succeed.

GROUND 6

1. Under the heading “Desired Outcome”, a series of rhetorical questions and/or complaints, inter alia about the Court system were agitated.  Nothing there appearing could possibly enliven appellate interest in the trial Judge’s decision.

GROUND 7

1. Similar observations apply to the passages appearing under the heading “What if the Children Stay with the father?”. 

GROUND 8

1. So far as the matters raised under the heading “Make the father Comply with the Court Orders this Time” are concerned, the mother has rights pursuant to the trial Judge’s orders, those rights including the ability to have the orders enforced.  Nothing appearing in this complaint advances the mother’s challenge to the trial Judge’s decision.

2. Under the heading “In Conclusion” the mother made a series of assertions, none of which is capable of advancing her appeal.

3. Permeating the mother’s complaints was the general assertion that the hearing of the proceedings before the trial Judge was circumvented in ways which disadvantaged her.  The mother has not supported this complaint by reference to the transcript of the proceedings.

4. Our perusal of the transcript makes clear that, whilst for the reasons he stated at the time, and which counsel for the mother agreed with, the trial Judge ensured that the trial proceeded in an efficient manner, nothing in the management of the trial raises any inference that, willingly or otherwise, any circumvention of the trial process impacted adversely on the case sought to be presented by either party.

5. The trial Judge’s reasons clearly, and with respect accurately, reveal an awareness of the potential for much unproductive time being spent on allegations and counter allegations in circumstances where it was readily apparent to the trial Judge, as his reasons detailed, that the parties had very differing attitudes and parenting styles. 

6. This general complaint of the mother accordingly has not been substantiated.

CONCLUSION

1. None of the complaints made by the mother, either formerly in her Notice of Appeal or otherwise in the course of material advanced by her, has been shown to have substance.  During the course of her oral submissions the mother made numerous assertions or complaints to which we have not specifically referred.  Having carefully read the transcript of the proceedings in its entirety, we can find no basis, expressly or impliedly relied upon by the mother, which would enliven the intervention of this Court.  Subject to a consideration of her application to adduce further evidence, the mother’s appeal should be dismissed.

THE FURTHER EVIDENCE APPLICATION

1. As noted at the outset of these reasons, the mother’s affidavit filed 21 November 2005, by which she sought to have “included” the four documents or class of document there referred to, is necessarily an application to adduce further evidence.

2. Nothing appearing in the affidavit of the mother in support of the application suggests that any of the items there referred to was not available to be tendered in evidence, or was sought to be tendered in evidence, at the proceedings before the trial Judge.  It is patently obvious that at least two of the categories of documents (3 and 4) were available in Court had they been sought to be tendered in evidence during the trial.  As the High Court made clear in CDJ v VAJ (1998) 197 CLR 172, whilst not determinative of the issue, the ability to have adduced such evidence at trial is a relevant consideration in an application for leave to adduce further evidence.

3. In CDJ v VAJ the majority, McHugh, Gummow and Callinan JJ, said at 201:

   One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

4. Dr M’s report was dated 4 November 2003.  Dr M under the heading “DISCUSSION” said of the father:

   The father fills the criteria for diagnosis of a bipolar 1 disorder that is the clinical course characterised by the occurrence of one or more manic episodes. He appears also to have had at least one depressive episode. He demonstrates insight into his condition and is compliant with his medication and attendance upon his psychiatrist. He does appear to be seriously disabled at times by his illness but these are episodic and at this stage of his life he continues to function in his employment and from the material I have read in his relationship with his children.

5. The trial Judge’s findings, based upon the evidence of Dr W, who was cross-examined by counsel for the mother, is consistent in every material respect with the opinion expressed by Dr M.  Thus, it cannot be suggested that receiving Dr M’s evidence with respect to the father’s mental health could have had any impact upon the soundness of the trial Judge’s findings in that regard.

6. Dr M said of the mother:

   The mother in my view does not demonstrate a borderline personality disorder as suggested by her husband. However, I believe that she has decompensated to some extent as a consequence of a difficult marital relationship and as noted earlier that this has affected her parenting capacity. The likelihood is that this will be a temporary phenomenon and she may well be assisted by counselling addressing the issues of anger management and parenting. A course such as Triple P may well be helpful to her.

7. It is important to note that the trial Judge expressly declined to make a finding adverse to the mother in terms of her mental health. Having referred to the “medical evidence” with respect to the father, his Honour said:

   51.  Each of the parties expresses reservations about the mental health and psychiatric well-being of the other parent.  However, there is no evidence before me which would enable me to draw any adverse conclusions against either of the parties.

8. Having read Dr M’s report, it is unsurprising, both in the absence of any medical evidence affirmatively suggesting any impairment of the mother’s mental health, and the more recent and comprehensive expert evidence from Dr W with respect to the mental health of the father, that neither counsel for the mother nor for the children’s representative sought to place Dr M’s report, prepared more than 18 months before the trial, and seemingly based on one medico-legal interview, into evidence.

9. Receiving Dr M’s report now and accepting its contents would not render erroneous the trial Judge’s conclusions with respect to the mental health of either party.

10. So far as the emails upon which the mother now seeks to rely are concerned, a number of observations are relevant.  It is not clear when the mother first became aware of the contents of the emails, but they bear the date 30 September 1999.  However, it is not apparent on their face, beyond the reference to “girlie magazine”, to what the emails refer.  It is difficult not to conclude that, had the emails or their subject matter been considered significant by the mother, she would have raised them with counsel representing her at trial. 

11. One of two conclusions would appear to be inescapable, either the mother did not consider the emails significant, and did not raise them with her counsel with a view to them being relied upon, or the mother did raise these matters with counsel who did not consider they were capable of advancing the mother’s case.  If the latter situation prevailed, having regard to the terms of the emails, we would have no difficulty in accepting that counsel could well have concluded that reliance upon the emails was unlikely to advance the mother’s case.  We would thus not allow the emails to be received in evidence.  If the former situation prevailed, we would not allow the mother to tender them now having regard to our conclusions as to their possible impact, which is that they could not have altered the outcome of the trial had they been before the trial Judge.

12. So far as the documents produced on subpoena by Police and the Department of Child Safety were concerned, quite apart from the fact that we have not been referred to anything in those documents which is suggested to be capable of satisfying the test propounded by the High Court in CDJ v VAJ, those documents were able to be placed before the Court throughout the trial.  We have nevertheless examined the documents.

13. A number of batches of documents were produced on subpoena by the Queensland Police Service.  Records relating to a complaint made by the mother on 6 June 2003 reveal no more than the recording of a complaint made by the mother about behaviour of the father.  Other than potentially  to rebut any suggestion of recent invention in the event of the mother asserting a version of events involving herself and the father on that date, it is difficult to see on what basis the entry could either be admissible or of relevance.  The Police took no action on that occasion.

14. Similar observations, albeit in relation to both parties, appear to arise with respect to a record made on 8 June 2003.  Interestingly, the Police noted on that occasion that both parties were “running diaries and have engaged solicitors and are claiming each other to be 504”, it not being apparent on the face of the documents what “504” is, but it is evident that the Police took no action on that occasion.

15. Similar observations apply to a Police attendance on 14 July 2003, the notation “[c]onflicting versions of event [sic] have been provided to police by both parties, both parties have some history of mental health issues” appearing.

16. Several pages of the batch of documents appear to relate to domestic violence proceedings which ultimately were withdrawn, discontinued or dismissed, the documentation, in the absence of someone familiar with its terminology and format, being less than entirely intelligible, although it is significant in that it does not record anything which could possibly have been taken into account in evidence to the detriment of the father.

17. The next attendance appears to have related to 16 August 2003.  Nothing there appearing would have probative value in residence or contact proceedings.

18. The notes relating to a reported alleged assault on the child VBG on 1 June 2004 and 2 July 2004 was regarded by the Police as “not substantiated”, nothing on the face of the document being capable of being received into evidence, although an entry “created by JMB 10765 – child abuse investigation” and apparently made on 3 July 2004 may have been admissible.

19. That document appears to be evidence of complaint, not by either of the children, purporting to be a hearsay reporting of allegations made by one or both of the children of the marriage. It is apparent on the face of the documents that the Police Officer who created this document did not speak to either child.  There is further hearsay upon hearsay appearing in the document, none of which could have any probative value. 

20. Another batch of documents produced by Queensland Police contained within it a cassette tape bearing date 9 December 2004.  It is not clear to what that tape recording refers but it is apparent that it was produced in response to a subpoena issued by the children’s representative.

21. Documents attached to the subpoena, and produced at the same time as the material in question, include a “DAILY OCCURRENCE SHEET” for Sunday 5 December 2004.  In that there is reference to the attendance of the father and VBG, evidently on 5 December 2004.  A complaint was recorded, the Police noting “[n]o visible injuries observed and VBG did not seek medical treatment”.

22. No other documents have been produced by Queensland Police on subpoena. 

23. The Court did not listen to the tape recording, and was not requested by the mother to do so.

24. The mother’s reliance upon the Police documents appeared, in part at least, to be on the basis that such documents would support her contention that the father has, over a lengthy period of time, made serious allegations of abuse of the children, and particularly of VBG against her, none of which has been substantiated.  These were complaints alleged to have arisen in circumstances which reveal a determination by the father to involve the children in making complaints for the purpose of assisting his efforts to obtain residence of the children.

1. To the extent that the material was sought to be relied upon by the mother, either in support of an allegation made by her or to rebut any finding by the trial Judge adverse to her, the material could not achieve either of those objectives given that, to the extent that the material contained statements by the mother, those statements, save to the extent indicated earlier, could not be admissible whilst, in the case of the father, as no admissions were made, nothing could be successfully used by the mother.

2. The documents produced by the Queensland Police Service could not, if accepted, render erroneous any finding of fact or conclusion or inference drawn by the trial Judge.

3. The Queensland Department of Family Services produced documents for a hearing on 20 January 2005 and a smaller quantity of documents for a hearing on 24 March 2005.  As counsel for the children’s representative confirmed, leave to inspect these documents and those produced by the Queensland Police Service, was given on at least three occasions, 20 January 2005, 24 March 2005 and 15 June 2005, all well prior to the trial of the proceedings.

4. The records reveal a file note on 26 October 2004 by Ms AJ recording a conversation with the father, the only significance of which for present purposes is the absence of any suggestion that, whatever its substance, the complaint was not regarded by Ms AJ as other than bona fide.  The note does not suggest any absence of foundation for such complaint.

5. A copy of the letter written by the Director General to the mother, the date of which is not clear, but which was necessarily subsequent to March 2004, records the finding, for reasons set out in the letter, of “substantiated physical abuse of VBG by you was unsupported” for reasons there outlined.  Without referring further to those reasons, the matters there appearing would not be helpful to the mother if accepted, and would be potentially damaging to her case.

6. The lengthy report dated 5 October 2004, the author of which appears, but was not necessarily, Mr MF, sets out in summary form, the admissibility of which is questionable, a series of dealings with the parties dating from 25 August 1997 to 17 October 2003.The contents of the document, if accepted, would not assist the mother’s case, and may be damaging to her case, both in relation to her actions towards VBG and the absence of findings or conclusions by the Department that the father’s complaints lacked bona fides or foundation.  The document is replicated at least twice in other parts of the documentation which was produced by the Department.

7. Other entries, including referrals made on 16 February 2004 and 4 December 2003 are referred to in the documentation.  These entries, to the extent that they may be admissible, would not assist the mother’s case in either of the respects for which she contends.

8. A number of documents apparently created in 2003 appear in the documentation produced.  Apart from issues as to the potential probative value such documents may have, it is to be remembered that the parties compromised proceedings with respect to residence and contact in 2004, relevantly for present purposes, on the basis that the father would have substantial contact with the children.

9. Various letters detailing complaints appear in the file, some issuing from the father, some from the mother.  Nothing appearing in the larger bundle of documents produced for hearing on 20 January 2005 satisfies the test for receipt of further evidence. 

10. The subsequent material produced by the Department replicates some of the earlier material, but appears primarily directed to reasons for the Department’s apparent change of mind some five months later with respect to its conclusion from “substantiated” to “unsubstantiated” claims of abuse of VBG in late 2003.  Nothing in the later material produced by the Department would satisfy the test for admission of further evidence.

11. It is inconceivable that neither counsel for the mother nor for the children’s representative would have tendered those records or parts of them had so doing been thought to be conducive to the mother’s case and/or relevant to the welfare of the children.  Having read the material, we well understand why counsel did not do so.  Nothing raised by the mother in relation to such material satisfies the test which governs applications to adduce further evidence.

CONCLUSION WITH RESPECT TO APPLICATION TO ADDUCE FURTHER EVIDENCE

1. None of the further evidence satisfying the test propounded in CDJ v VAJ, we would thus dismiss the application to adduce further evidence.

CONCLUSION

1. The appeal and application to adduce further evidence will be dismissed.

COSTS

1. Counsel for the children's representative sought an order for costs against the mother in the event of the appeal being dismissed. Without doubting the genuineness of the mother's motivation in appealing, as our reasons reveal, her appeal was ill conceived, as was her application to adduce further evidence. We are satisfied that the circumstances justify an order for costs in favour of the children's representative and will so order.

ORDERS

1.   That the appeal be dismissed.

2. That the mother pay the children’s representative’s costs of and incidental to the appeal as agreed or failing agreement as assessed under Division 19.6.2 of Chapter 19 of the Family Law Rules 2004 on a party/party basis in accordance with the relevant scale.

I certify that the preceding
150 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C
Associate
Date: 25/07/06