OP v TP & Anor (Conduct of Counsel)

[2002] FamCA 1155

[2002] FamCA 1155

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT PERTH

Appeal No. WA 6 of 2002

IN THE MATTER OF :

OP and TP and THE CHILD REPRESENTATIVE (CONDUCT OF COUNSEL)

REASONS FOR JUDGMENT – EDITED FOR PUBLICATION

CORAM :   NICHOLSON CJ, BUCKLEY & KAY JJ

DATE OF HEARING          12 NOVEMBER 2002

DATE OF JUDGMENT       17 DECEMBER 2002

Appearances :  The husband appeared in person

Mr Jones instructed by Legal Aid WA, 55 St Georges Terrace Perth 6000 appeared on behalf of the wife

Ms Crisford of Counsel instructed by Athanasiou & Kakulas, 15 Howard Street Perth WA 6000 appeared on behalf of the child Representative

Catchwords:                   Family Law – Appeals – Alleged miscarriage of justice – Alleged incompetence and improper behaviour of counsel at trial – Principles to be applied depend on whether jurisdiction is in respect of children or in respect of property - Appeal dismissed.

INTRODUCTION

1. This is the husband’s appeal against residence, contact and property orders made by Chief Judge Holden in the Family Court of Western Australia … following a hearing over three days … .

1. The trial Judge ordered that the two children of the marriage, “J” now aged six, and “L” now aged five, reside with the wife.  He ordered a staged contact arrangement between the children and the husband commencing with limited supervised contact and thereafter, subject to satisfactory progress, moving to overnight weekend contact on a fortnightly basis.

1. As to property, he ordered that the wife receive 37.5 percent of the total asset pool of $216,800, namely $81,300.

1. The primary attack made by the husband, who was self- represented on the hearing of the appeal, was on the residence order, which he said should have been made in his favour.  Although in his original notice of appeal he made a number of attacks upon the findings of the trial Judge, he chose at the hearing to proceed upon two very limited grounds.  These were what he said was the flagrant incompetence of his own counsel (Ground 1), and the improper behaviour of his own counsel (Ground 2).  He said that these shortcomings on the part of his counsel misled the Judge and led to a miscarriage of justice.

1. As to the property order, he said that the order should fall if residence were granted in his favour and that in any event, his Honour’s discretion miscarried as to the amount ordered in favour of the wife. He also complained of his counsel’s failure to either cross-examine or to call certain evidence about his wife’s earnings and earning capacity.

1. We shall return to the property issue subsequently.

ISSUES

1. Apart from the amount of the property order, the issues raised by the appeal are:

   1.Whether and in what circumstances the incompetence and/or impropriety on the part of counsel provides a basis for setting aside a judgment.

   2.Whether in the circumstances of this case it has been shown by the husband that the judgment should be set aside.

1. Before turning to these issues in detail, it is necessary to summarise the history of the parties and their relationship and to examine the findings of the trial Judge in light of the evidence before him.

BACKGROUND HISTORY

1. The husband … is now aged 44 and the wife … is now aged 34.  The parties met in 1993, commenced living together in about January 1996 and married [in] … April 1997.  There was a short separation between February and October 1998 and the parties finally separated [in] … May 2000.  The wife had two children of a previous relationship who lived with her and the husband throughout the period of cohabitation and who continue to live with her, namely “C”, who is now 13 and “S” who is now 10.

1. His Honour’s reasons for judgment record that there was considerable dispute between the parties as to who was the primary care giver during the periods of cohabitation. However, he said that it was not disputed that when the parties were separated in 1998, the wife was the primary care giver.  Similarly, she had been the sole caregiver since the separation in 2000.

1. On 27 July 1998, during the period of the first separation, orders were made by consent that the parties retain joint parental responsibility for the long term care, welfare and development of “J” and “L”. In addition a residence/contact order was made whereby the children resided with the husband from 9am Thursday until 12 noon on Saturday in each week and for one week of each school holiday period and with the wife at all other times.

1. The evidence given by the wife, which his Honour accepted, and which he said was not challenged at trial, was that the husband did not take full advantage of this order and would collect the children on the Thursday morning and return them later on the same day.  This finding has some significance in relation to the submissions made by the husband in that he says evidence was available and not called by his counsel to the effect that he did fully exercise his rights under the order.

1. In May 2000, following the wife’s taking “C” to hospital in relation to a complaint of incontinence, a psychiatrist informed her that he thought that “C” had been sexually molested.  The matter was then reported to a child abuse unit, which arranged for the wife and “C” to be interviewed by the Police Child Abuse Unit in Perth.  The police subsequently interviewed the husband and he was arrested and charged with indecent dealing.  While he was being interviewed by the police, the wife left the former matrimonial home with the children.  It appears that the wife said, and his Honour found, that this was the first time that she had been aware of any allegation of sexual abuse by “C” against the husband. This is also significant to the husband’s submissions in that he says his counsel should have placed evidence before his Honour, which would have led him to a different conclusion.

1. The husband then initiated proceedings seeking orders for joint residence and the wife filed a response seeking sole residence and the suspension of contact. Interim orders were made in the terms sought by the wife on 4 July 2000, together with an order that the children be separately represented.

1. On 8 August 2000, the wife and the 4 children moved to a rental property [in the town of A] some two hours drive from [the town of K],  where she had previously resided with the husband. It appears that she made this move unilaterally without reference to the husband or the court. Supervised contact with the husband was ordered on 4 September 2000 for a period of 3 hours per week, which required the wife to take the children to [the town of K] for this purpose.  His Honour found that following the making of those orders, the wife drove to [the town of K] on approximately 6 occasions and then ceased to do so, giving as her reasons difficulty in supervision, the financial cost, and the fact that her car was no longer roadworthy.

1. In early 2001 the husband took proceedings in relation to alleged breaches of the contact orders which were dismissed. 

1. On 18 May 2001, the husband was acquitted after a District Court trial before a judge and jury of the indecent dealing charges.

1. His Honour found that, save for an occasion on 23 June 2001 when the husband was with “L” and “J” in the presence of the Court-appointed expert for the purpose of assessment, the husband had had no contact with the children from approximately October 2000 until the trial.

1. On 15 November 2001, the husband filed an amended application seeking residence orders, not only in relation to “J” and “L”, but also in respect of “C” and “S”.  His Honour’s judgment records that he persisted with this application until shortly before the trial and at the commencement of the trial his Honour was advised by his counsel that the husband no longer sought orders in respect of the two girls.  This is also the subject of complaint by the husband against his counsel.

1. His Honour also noted that, in the same application, the husband sought orders that the two girls should have contact with their natural father. His Honour commented that the natural father had taken no part in the proceedings and had not seen either of his daughters since about April 1992, nor had he appeared to make any request to do so.

1. In fact, the husband had filed an affidavit sworn on 8 May 1998 from the natural father of the two girls asserting that the wife had refused him contact with them. The husband complains that his counsel had taken no steps to enforce a subpoena directed to this witness.

1. During the course of the proceedings, and following the appointment of the child representative, the Court appointed an expert witness to prepare a psychological report in relation to the parties and their children.  This was prepared by Mr Chris De Rooster and was dated 19 February 2002.  Mr De Rooster was cross-examined on behalf of the husband at trial.

1. This report is of considerable significance in the present case and it is necessary to refer to it in some detail. 

1. Mr De Rooster interviewed both of the parties and the children and made a home visit to the wife on two occasions. He said that he had also attempted to arrange a home visit with the husband, but that the latter would not agree to it. He also had a visit with the husband and the children on one occasion in [the town of A]. He said that he had some difficulty with the husband in relation to appointments, although the husband disputes this.

THE CONTENT OF THE REPORT

1. Mr De Rooster noted that the parties met in June 1993 in [the town of K], as a result of a friendship between the wife and the husband’s sister.  They initially had a casual relationship, until the wife moved in with the husband when she was pregnant with “J”.  He said both admitted that the relationship was stressful and antagonistic.  The husband complained that the wife would leave for weeks, was bad-tempered and depressed and threatened suicide and was abusive to him.  He said that the first separation in 1998 came about because she wanted to leave and live with her mother.  He denied any violence. He in fact claimed that she had been violent to him. 

1. The wife, for her part, agreed that the relationship was characterised by arguments and that the husband had an obsessive approach to life. The wife claims that she was the subject of an attack by him when she was pregnant with “L” that required hospitalisation. She said that when the husband had to look after the children, they were dirty and unkempt and their hair was dirty.

1. She told Mr De Rooster that she left the husband in February 1998 after she found that he was possibly sleeping with another woman and drinking heavily.

1. She said that she left on the second occasion because of the child “C” telling her that the husband had sexually abused her. 

1. Mr De Rooster noted that the husband was the sixth child of a family of 13, who was born [in the town of K] where he had lived for all his life.  … He left school at the age of 14 and later completed [an apprenticeship] and started his own [business], which he sold in 1992.  He then conducted [another] business for a while and later developed and sold some properties, but had not done any formal work for the last few years.  The husband denied any history of mental illness, although he admitted to having been evaluated at one time by a psychiatrist, who said that he might have a narcissistic and avoidant behavioural pattern.

1. The wife told Mr De Rooster that she was also born in [the town of K] and is the younger of two children.  Her parents have been married for approximately 42 years and manage a family farm and own a property [in the town of K].  She was not a bright student, but finished Year 10 … and went onto Social Security after leaving school.  She said that she was skilful in making clothes and showed Mr De Rooster clothing that she had made for the children.  She said that she has significant family support from her parents and brother.  She said that she had never lived with the father of the two girls, and that the relationship ended after “S”’s birth.

1. She denied any history of mental illness, but she admitted that in February 1993 she set her … house on fire.  She did not remember the incident, but regained a rational psychological state in hospital.  Mr De Rooster considered this to be an isolated episode.

1. Mr De Rooster’s assessment of the husband was that he was a demanding and controlling person, who was uncooperative and gave a strong impression of being a manipulative person during the assessment process.  He described him as having presented as unkempt and having dirty marks on his clothes.  He thought that he was a man of average intelligence, who was capable of expressing his ideas clearly.  He made his presence felt as he had strong personal ideas about issues, which he presented in an assertive and loud manner. He thought that the husband was immature for his age and that he seemed to be inadequate and inappropriate in social interactions.  He said that he seemed to ignore the main issues of the assessment and focused on his personal needs, self-importance, and control of others. He commented that the husband seemed to be suspicious and obtained a lot of psychiatric and psychological information from the Internet, in an attempt to prove his perception that the wife had a mental illness.  He considered that the only abnormal factors about the husband were the numerous features of narcissistic personality and a lack of understanding of socially appropriate behaviour. 

1. He said that the husband might feel that he is getting a raw deal from court proceedings and blame others for these problems and harbour grudges towards them.  He said that he was hostile and argumentative and seemed to act on impulses.  The husband was able to interact with people on a superficial level, but found it difficult to form close and trusting empathic relationships.  He said that his behaviour and thought patterns tended to be rigid and ingrained. 

1. Mr De Rooster felt that the presence of significant features of a narcissistic personality and the husband’s general behaviour style towards people raised concerns about his ability to adequately meet the demands of parenting.   He said that in view of his presenting behaviour and profile, it was highly likely that psychological and physical abuse was prevalent during his relationship with the wife.  He thought that the husband was probably the dominant and controlling person in the relationship and that this was likely to have been to the detriment of the wife and the children. 

1. By contrast, Mr De Rooster described the wife as and willing and cooperative.  She presented as functioning in the low average range of intelligence, with a low educational level. She appeared to him to be friendly and able to understand other people’s view points and her interactions were always appropriate during the interviews.  However, he thought that she came across as an immature, naive and inadequate person for her age.  He thought that her home was disorganised and at times she came across as a person with low energy levels and a very casual attitude towards housekeeping and parenting.  He noted that her self esteem was initially low, but showed significant improvement between the first and second interviews over a period of seven months.  Psychological tests showed no abnormality. 

1. He noted that she felt dissatisfied and pessimistic and had few inner resources to deal with the day-to-day demands of life.  She experienced distress in her relationship with the husband and harboured anger and hostility towards him.  Despite these feelings, he described her as an outgoing person who enjoyed the company of people.  He said that there were no indications that the wife suffered any depressive or like illness, or psychopathology that could prevent her from taking care of the children.  He noted that her low average intellectual ability and low education level, combined with having been in a destructive relationship, had left her with a lack of self-confidence and a low self-esteem.  However, he noted that she had shown resilience in dealing with the demands of the children, and other demands placed upon her.

1. Mr De Rooster observed “J” to be an active and independent child, who was friendly and inquisitive and enjoyed playing.  He said that “L” seemed more demanding and he noted the Family and Children’s Services report to the effect that “L” had been in a filthy state when cared for by the husband for a short period.  He thought that “L” was friendly, but more subdued than his brother and seemed insecure.  He said that he had a close bond with his mother and reached to her for reassurance.  He thought that he was a child who needed continued intervention with regard to his physical and psychological health. 

1. As to the relationship between the children and the husband, he noted that the husband made emotional and physical contact with the children, and although he had not seen the children for a long period, they were pleased to see him and responded accordingly.  He concluded that the husband loved and cared for “J” and “L”.

1. He described the relationship between “C” and “S” and the husband as dysfunctional. He described the husband’s relationship with the girls as damaging and a contra-indication for good parenting. 

1. So far as the relationship of the wife with the children is concerned, he noted that she was a tolerant mother with a laissez-faire attitude.  She and the children felt at ease, and physical and emotional contact was continuous in their interactions with each other.  He referred to a Family and Children’s Services file note that described her as a caring parent whose practical parenting may need to be addressed as well as the physical care of the house.  He also noted information that indicated a significant improvement in her behaviour since moving to [the town of A].  He thought that the wife’s relationship with the husband was destructive of her. 

1. He thought both of the boys were too young to verbalise their wishes with respect to residency and contact.  He was of the view that the mother should remain the resident parent and the father should have contact, and he recommended a regime of supervised contact, gradually moving to unsupervised and overnight contact.

1. He thought that if the wife cared for the children they would develop in a safe and secure environment, despite her somewhat casual approach.  Their physical and medical needs would generally be cared for and they would be exposed to normal socially acceptable development. 

1. However, in relation to the husband, he expressed concern about his capacity to provide for their physical day-to-day care and thought that inappropriate psycho-social development might take place, in that the husband would place his own needs first and the children’s needs second. He thought that while the husband would probably foster some relationship with the children and the wife, he would be controlling, demanding and manipulative in this regard.  He also thought the wife had various concerns about husband’s parenting and might find it difficult to foster a relationship between the children and the husband.

THE FINDINGS OF THE TRIAL JUDGE

1. His Honour largely accepted Mr De Rooster’s assessment of the parties, which he said accorded with his own observations during the trial. 

1. He said that so far as the credibility of the parties was concerned, he preferred the evidence of the wife to that of the husband where there was a conflict.  He was not impressed with the husband’s credibility and he said that he gained this impression from the manner in which he gave his evidence, but also as a result of his reactions in court to the evidence of others.  His Honour thought that many of his answers were designed to portray himself in the best light possible and to denigrate others. 

1. He noted that although the husband had, for many years, asserted that the wife did not take care of the children, he had failed to adduce any corroborative evidence to support his claim.  Again from the husband’s point of view, this finding is a matter of some importance, because he says that this finding stems from the failure by his counsel to call relevant evidence. 

1. His Honour found that both parents love the children, but he was satisfied that they were likely to be more emotionally attached to their mother than their father, particularly having regard to the history of the parties’ care giving in recent times.  His Honour said:

“Perhaps the most important aspect of this case is the ability of each of the parents to cater for the emotional needs of the children.  Such is the difference in the capacity of the parties, that to order that the children reside with the husband is likely to damage their emotional well being.”

1. In reliance upon the views of Mr De Rooster, his Honour took the view that to separate the children from their mother now and place them in the care of their father would potentially endanger their well being.  He was also concerned that for the children to reside with their father, it would result in the two girls and the two boys residing in different households.  His Honour thought that common sense would seem to dictate that this was undesirable and ought to be avoided, and that there was no good reason to separate the children

1. He rejected the husband’s suggestion that the wife should be ordered to live in her parent’s house in [the town of K], rather than in [the town of A].  His Honour said that the two towns were approximately two hours apart and that while this created some difficulty and expense as far as contact was concerned, the difficulties were not insurmountable.  As to contact, his Honour adopted the recommendations of Mr De Rooster, which he said were supported by the child representative.

1. As to property, his Honour found that the wife had few assets of any significance, whereas the husband had some four pieces of real estate in the [town of K] area.  He noted that after the first separation and on reconciliation the parties purchased, in their joint names, a property at [the town of B], for the price of $48,000, the monies for the purchase coming from the sale of one of the husband’s properties [in the town of K].  He noted that neither worked during the marriage and that the husband was unable to obtain unemployment benefits because of the value of his assets.  He said that the parties lived on child support that the wife received for the two girls and a family allowance.  He found the total assets and liabilities to be $216,800.  He found on the issue of contribution 15 percent in favour of the wife and 85 percent in favour of the husband.  He considered that, having regard to the wife’s responsibility for the care of the children and the fact that she could expect little by way of child support from the husband, he should make an adjustment of 22.5 percent for s75 (2) factors.  His Honour refused the wife’s applications for departure orders in relation to child support and for lump sum spousal maintenance.

EVENTS PRECEDING THE TRIAL

1. It appears that there were many applications and counter applications that preceded the trial, and throughout this period the husband was self-represented.  The husband, in documents filed prior to trial, sought to rely upon four affidavits, all of which were filed on 23 October 2001 and an affidavit by one “Mr L”, the natural father of the wife’s elder children, filed on 9 March 1998.  Of the witnesses who swore the affidavits filed on 23^rd October 2001, only one, namely “Ms C”, gave evidence.  “Ms C” is a sister of the husband.  She supported his application and said that she would be available to assist the children.  She also said that the wife had told her that she would cancel the restraining order that she obtained in 1998 as soon as the husband signed an agreement giving her custody of the children. 

1. Another sister, “Ms M”, also swore an affidavit in support of the husband and corroborated the allegation that the wife had indicated that she would withdraw the restraining order if she obtained custody of the children.  She also gave evidence of an altercation that she had had with the wife in May 1998, when she said the wife asserted that the husband had been interfering with and molesting her daughters. She also said that the husband had showed that he was capable of providing for the children’s physical, emotional and social needs.  It appears that she also would have said if asked, that he had availed himself of the whole period of contact ordered in his favour in the 1998 order.  Her husband, “Mr M”, gave similar evidence in his affidavit.  [A] “Ms R” gave evidence in her affidavit of a conversation that she had with the wife on the husband’s behalf, asking if he could see the children and have regular visits with them.  She did not recall the detail of the conversation that followed, but she recalled that the wife’s remarks were derogatory of the husband.  Finally, the father of “C” and “S”, “Mr L”, in his affidavit sworn on 8 March 1998, expressed the wish that his children reside with the husband.  He also indicated that he wished to have contact with the children and that the wife had refused to give contact to him.  He was highly critical of the wife as a parent.

1. It appears that with the exception of “Mr L”, all of these witnesses were available at Court on the day of the trial to give evidence, but were not called. This is one of the matters about which the husband complains. We note from the appeal book that a subpoena had been issued to “Mr L” and the husband complains that his counsel did not take steps to enforce it.

1. On the hearing of the appeal, the husband also sought to file 3 further affidavits.  The first of these was from a “Ms S”, who had supervised visits between the husband and the two boys in October and November 2000.  She said that these visits took place at the husband’s home, which was always neat and tidy, and the children were also taken to visit his mother.  She said that he made a healthy meal for the children, who seemed to get on well with him, and his parenting abilities seemed fine to her.  “Ms C” swore a further affidavit on 31 October 2000, in which she said that the husband took the children to visit their grandmother regularly during the contact period in 1998 and availed himself of contact for the full period ordered. She also asserted that the wife made baby clothes to sell, which she sold at garage sales.  “Ms M” swore a further affidavit dated 4 November 2002.  She said that she was to go to Perth to give evidence at the trial, but she received a call from the husband the night before to say that she and her husband did not need to go.  She said that they went to the trial anyway, but were not called. She said also that the husband visited her on most Fridays with the boys when they were living with him in 1998, during the separation. She also gave evidence of altercations with the wife, similar to that which appeared in her earlier affidavit.

1. We did not rule upon the reception of this additional evidence at the time of the hearing of the appeal, but we indicate that we do not propose to receive it for the reason that we do not consider that it could in any way affect the outcome of this case.

ALLEGED IMPROPRIETY OF COUNSEL

1. It is perhaps convenient to first deal with the allegation of improper behaviour on the part of counsel.  This arises mainly from an assertion by the husband that his counsel, “Mr G”, had lunch with his wife’s counsel on the first day of the trial.  He said that following this luncheon, he overheard the wife’s counsel inform another person that, “It will only be a three day trial now”.  He says that following on from this, all but one of his witnesses was sent home on the second morning, because “Mr G” informed him that they would confuse the Judge.  Similarly, no attempt was made to bring “Mr L” to court under subpoena.  He said “Mr G” had previously told him that these witnesses were very good for his case.  Another aspect of impropriety upon which he relied was his counsel’s failure to issue a subpoena to a supervisor, one “Ms H”, in the month before the trial, even though he had stated to the husband that she was the best witness, and that he had issued a subpoena to her on 8 February. We were shown an unsworn affidavit by “Ms H” that was apparently prepared by “Mr G”. It contained statements supporting the husband’s parenting capacity and spoke favourably of his interaction with the children.

1. The husband said that “Mr G” also told him that the Judge refused to bring “Mr L” to court, although he said that no such request was made to the Judge during the trial. 

1. There is of course, no evidence before us in relation to these matters, but taking them at their highest, they do not, in our view, nor could they, give rise to an inference of impropriety.

1. It is not uncommon for opposing counsel to have lunch together, nor is it uncommon for them to discuss ways in which trials may be shortened. It is also not uncommon for counsel to decide that witnesses should not be called because their evidence would not, in counsel’s view, advance the case of their client. We can see no basis for drawing an inference of collusion from these facts.  In our view, there is nothing in the evidence of the relevant witnesses that would have significantly lengthened the trial in any event.  They were clearly witnesses of the usual type that are often called in these matters supporting the case of one party or the other.  Very often, such witnesses are not even required to attend for cross-examination, but even if they are so required, their cross-examination is usually very limited.  It appears that in the present case a general notice was given that all witnesses should attend for cross-examination, but this does not affect our view.  The issues in relation to the non-calling of witnesses may still be relevant to the allegations of incompetent representation and we will discuss them further in that context.

ALLEGED INCOMPETENCE OF COUNSEL

1. We turn now to what might be regarded as the more substantial issue in this appeal, namely the issue in relation to incompetence.

1. At the outset, we should point out that no attempt was made by any party to call “Mr G” before the Court and that the allegations made by the husband are simply that, and are not supported by evidence.  However, for the purposes for this appeal, we propose to deal with the husband’s allegations and treat them as having evidentiary support rather than further delaying the matter by enabling him to adduce evidence, having regard to our eventual conclusion in this matter.

1. In his summary of argument, the husband indicates that he was self-represented until January 2002, and that he had been quoted upwards of $20,000 from solicitors to prepare for and appear as counsel at the 6-day trial.  He said that he contacted “Mr G” in early January, who did not immediately agree to represent him, first indicating that he wished to talk to the child representative.  Having done this, “Mr G” agreed to prepare the case and represent the husband at trial, for a fixed fee of $7,000.  The husband said that he queried why the amount was so low, and that “Mr G” stated that his overheads were far lower than other firms.  The husband said that he posted a bank cheque for $7,000, together with his file, to “Mr G” on 8 January 2002.

1. He asserted that he had just one meeting with “Mr G” to prepare the case, when he drove to Perth on Sunday 10 February 2002.  He said that the meeting continued for a little over an hour and consisted of general discussion, following which “Mr G” drove him to lunch at about 11.30am.  They returned at about 1.30pm and what the husband describes as “general chat” continued until 2.45pm, with the only real preparation being “a look for some documents”. 

1. It appears that the husband has launched a complaint of collusion against “Mr G” and the child representative with the Legal Practitioners Complaint Committee, which has decided to await the outcome of this appeal before further investigation. 

1. The husband lodged written submissions as to his allegations of incompetence on the hearing of the appeal and supported them with verbal argument. 

1. He said that “Ms M” and “Mr M” were crucial witnesses, in that they would have clearly shown that the husband had definitely not returned his children early during the periods of contact in 1998.  He said that similarly, “Ms C” should have been asked by “Mr G” as to this matter, as he said that she was fully aware that the husband visited his mother each Saturday with the children before returning them to the wife at noon. 

1. The husband was also particularly critical of the failure by “Mr G” to attack the wife’s credit in relation to issues arising from the allegation of sexual abuse by “C”.  He first criticised the fact that “Mr G” did not continue with his applications in relation to “C” and “S”. He said that “Mr G” had withdrawn these applications contrary to instructions.

1. He also said that “Mr G” had failed, during his cross-examination of the wife, to produce what he described as a crucial fax, sent from the wife’s solicitors on 25 May 1998. He said that the fax proved that the wife was fully aware of the claim of indecent dealing in 1998 and it proved that she had personally made the original allegation of indecent dealing at that time.  The husband produced the fax on the hearing of the appeal, which, inter alia, read:

“My client instructed me that “C” had commented on [the husband’s] behaviour whilst my client was in hospital with “L” in 1997.  Apparently, “C” told my client that [the husband] had been engaging in inappropriate activity with “C”.”

1. The husband said that this fax would have established that the wife’s subsequent allegation that she first became aware of allegations of sexual assault on “C” by him being made in 2000 was incorrect.  He said that the failure to tender and cross examine on this document led to a finding by the trial Judge that the wife was unaware of the indecent dealing allegations in 1998, when she reconciled with the Appellant.  He said that the evidence of “Mr M” and “Ms M” would have further supported this allegation, if it had been called, who were told by the wife that the husband had been molesting “C” and “S” in May 1998.

1. The husband was also critical of “Mr G”’s failure to use evidence in relation to a door handle from “C”’s bedroom during the cross-examination of the wife, which he said went a long way to prove to the jury at his trial that “C”’s allegations were a fabrication.  He also complained that “Mr G” had failed to bring attention to “C”’s claim in cross-examination at that trial that the husband’s threat to kill “L” was the reason that she never spoke to anyone about her allegations before 2000, which he said differed from her police statements.  “Mr G”, he said, also failed to draw attention to the fact that “L” had not been born at the relevant time.

1. He was also critical of “Mr G”’s failure to use the evidence of “Ms M” in relation to the Family and Children Services Department note that the husband’s house was in a mess on 24 May 2000.  He said that she would have said that the only filthy room was the wife’s bedroom.

1. He was also critical of “Mr G” putting the Departmental case file note in as an exhibit, and failing to address the issue as to why the writer of the case file note had not been subpoenaed by the child representative. 

1. Next he said that “Mr G” failed to address evidence that he considered would have demonstrated perjury by the wife.  This appears to have been based upon statements by the wife’s then solicitor at a hearing before a magistrate on 4 July 2000, where she said that it was the wife’s view that in the circumstances the husband was not capable of caring for the children. The solicitor said that this was in light of the charges of sexual abuse made by “C”, and also the fact that when the police went to interview the husband they found that the child “L” was in such a poor state that they took him back and handed him over to the Department. She also said that the caseworker from the Department in [the town of K] had told the wife that if the children were to have contact with the husband, then they would be the subject of an application for a care and protection order.

1. The husband said that “Mr G” failed to compare these statements to answers given by the wife during her cross-examination at the husband’s trial in April 2001, to the effect that she agreed that the only time that “L” was in the care of the Department was temporarily, on the day that the husband was being interviewed in [the town of K]. The husband concluded from this that if these matters had been canvassed, the wife would be found to have perjured herself.

1. He also criticised his counsel for failing to attempt to enforce the subpoena against “Mr L”, the biological father of “C” and “S”.

1. He also complained about statements from “Mr G” to the Judge, which he said involved untoward remarks as to the husband’s personality. He also complained of “Mr G” having said to the Judge that the husband rated the wife at the scale of zero as to non-financial contributions. He also complained of “Mr G” having failed to submit evidence that the wife  was a successful Avon sales person who had run a clothes-manufacturing business with his encouragement. 

1. He further criticised “Mr G” for failing to raise the seven-month delay in filing the family report and for his failure to cross-examine Mr De Rooster about his comments about the husband having dirty marks on his clothes and looking unkempt. He said that in view of the late stage that Mr De Rooster’s report had been received, he had instructed “Mr G” to seek an adjournment in order to obtain another report, but “Mr G” did not do so.

1. He criticised “Mr G” for failing to draw attention to the fact that Mr De Rooster had not been sent a copy of the transcript of the indecent dealing trial.

1. He also said that “Mr G” failed to draw attention to the fact that the child representative had responded to a particular e-mail relating to no more contact. 

1. He said that “Mr G” had also failed to draw attention to abusive late-night and early-morning phone calls made by the wife to the husband and to his sisters, even though Telstra records were available at the court, as were the witnesses.

1. He also criticised “Mr G” for failing to draw attention to the wife’s admission that she had sold medicines to a friend, which had been prescribed for “C”’s incontinence.  He said that “Mr G” should have drawn attention to the number of trips to Perth made by the wife in order to take “C” to be tested, which he asserted were because the wife kept selling the medicines instead of letting “C” get better. 

1. He also criticised “Mr G” for not having raised issues about the wife’s threats to his mother, and for having failed to direct attention to her relocation to [the town of A] whilst orders were in place without informing the Court or himself of her relocation. 

1. He also complained of “Mr G” failing to draw attention to the fact that the wife had obtained numerous restraining orders and had admitted doing so in order to “spite and prevent the Appellant from having contact with the children”.

1. It is important to note the events that occurred at the time that his Honour delivered his decision. At the conclusion of the trial his Honour reserved his decision. On the day that he came to give it the husband appeared self-represented and made an application to his Honour to withhold his judgment.

1. He did this upon the basis that he wanted to have all of the witnesses that his counsel sent home called, plus two more witnesses. He also wished to introduce the evidence about the wife having sold Avon goods and having earned monies in other ways.

1. His Honour eventually said: “Essentially your application is to reopen, because in your view your case was incompetently presented by your solicitor. Is that the position?”. The transcript continues:

“[The Husband]:      That’s exactly the position.

His Honour:               Yes.

[The Husband]:         And the second one is that the Family and Children Services file note which Mr De Rooster based all his/most of his opinion upon, is a fraud. And I have complained to the Minister Sheila McHale and she is investigating it. It is definitely a fraud. It never happened. I was never at my place when the children – whenever they turned up. And I spoke to the boys there. It never happened.

1. The husband said that he had given the date to “Mr G” and told him that it was a fraud, but that “Mr G” did not draw his Honour’s attention to it.

1. The husband’s application was opposed by the child representative and by counsel for the wife.

1. His Honour made it clear that the nature of his decision was such that none of the additional material upon which the husband sought to rely would have affected it.

THE EFFECT OF THE INCOMPETENCE OF COUNSEL IN FAMILY LAW CASES

1. In civil litigation a client is normally bound by the actions of his/her counsel. Similar considerations apply in criminal cases. However, in criminal cases the courts have been prepared to set aside convictions in circumstances where the incompetence of counsel has led to a miscarriage of justice, see: Re: Ratten (1974) VR 201; Ratten v The Queen (1974) 131 CLR 510; Reg. v Birks (1990) 19 NSW LR 677 (Gleeson CJ, McInerney J and Lusher AJ).

1. In the latter case, the New South Wales Court of Criminal Appeal set aside the relevant conviction on the ground of “the flagrant incompetence” of counsel which had given rise to “an unusual and extreme situation” per Gleeson CJ (at 685). His Honour said (at 685):

“The relevant principles may be summarised as follows:

1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to instructions, or involve errors of judgment or even negligence.

3.However there may arise cases where something has occurred in the running of the trial, perhaps as a result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

1. That case has since been followed in a number of cases in the Court of Appeal of NSW, see: Reg v Igniati (1993) 68 A Crim R 333; Reg v Sandford (1994) 72 A Crim R 160; Reg v D (unreported Court of Criminal Appeal NSW 22 February 1996); Reg v Hunter and Sara [1999] NSWCCA 5.

1. It is of interest to note that in the latter case the Court of Criminal Appeal heard evidence from counsel and solicitors in relation to the issue of incompetence.

1. A similar approach to that adopted in Australian criminal cases appears to have been taken in New Zealand in R v Pointon [1985] 1 NZLR 109 (Court of Appeal; Cooke, Somers and Eichelbaum JJ).

1. Most of the Australian decisions in the area of family law that relate to the competence of counsel have related to proceedings under s79A of the Family Law Act 1975. These have involved property proceedings where, in order to set a judgment aside, it is necessary to prove that “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance”, see: Rhode (1987) 10 Fam LR 56 per Gee J; Holland (1982) FLC 91-243; Gebert (1990) FLC 92-137; Clifton v Stuart (1991) FLC 92-194, (1990) 14 Fam LR 511; Prior (2002) FLC 93-105.

1. These cases have necessarily involved an analysis of what the expression “miscarriage of justice” means in the context of the section. Clifton v Stuart was a case where it was sought to set aside a decision under s79A on the grounds of the incompetence of the wife’s legal representatives at trial.

1. The Full Court accepted a submission from counsel for the husband that it was not sufficient for the wife to claim incompetence or neglect by her counsel because nothing could be pointed to which established that the means by which the judgment was obtained was so wrong as to involve a clear injustice. The Court agreed that there might conceivably be cases in which professional incompetence did result in a miscarriage of justice, for example, if the representation was so bad as to be the equivalent of no representation at all, or if the representation was perverse, or if the representative was in league with the other side: see (1990) 14 Fam LR at 517 and 519.

1. In that case the Court distinguished between an unfair result and an unfair trial and held that only the latter could constitute a miscarriage of justice.

1. It must be remembered that this was a decision relating to the meaning of a particular section of the Family Law Act and we think that the principles there stated should be confined to property proceedings in so far as they indicate that an unfair result is not an indicia of a miscarriage of justice.

1. In determining whether a miscarriage of justice has occurred it is necessary to have regard to the jurisdiction that the court is exercising. In Wilson v Wilson (1967) 10 FLR 203, on an appeal to have a decree nisi rescinded, Wallace P (at 205-6) referred to a distinction between different jurisdictions when considering the question of a miscarriage of justice. As Asprey JA went on to point out (at 216), what will constitute a miscarriage of justice may vary, not only in relation to particular facts, but also with regard to the jurisdiction that has been invoked by the proceedings in question.

1. Similarly, the Full Court in Clifton v Stuart, after referring to Wilson’s case, pointed to the fact that in criminal trials, the need to preserve the liberty of the subject “must clearly override to some extent the need to avoid further litigation”: see (1990) 14 Fam LR at 19.

1. Having regard to the subsequent decisions to which we refer and in particular to the decision of the Supreme Court of Canada in R v G.D.B. (2000) SCC 22, we think that different considerations apply to both criminal and child protection proceedings. By analogy, we think that different considerations also apply to proceedings in respect of children under the Family Law Act.

1. In that case Major J, delivering the judgment of the Supreme Court, said (at 25):

“Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice.”

1. He continued, (at 28 –29):

   “Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised”.

2. The issue of the effect of the incompetence of counsel has been considered in a number of other cases in Canada and the United States, which are usefully summarised in the judgments of the Court of Appeal of British Columbia in DB & the Director of Child Family and Community Service [2002] BCCA (Rowles JA, Ryan JA and Saunders JA). 

1. In criminal cases, the test that has been adopted in Canada is that set out by Martin J in R v Garofoli [1988] 4CCC 3d 97 (Ont.CA) (at 151-2):

“… where the defendant alleges that the incompetence of counsel deprived him of the effective assistance of counsel, the defendant must show, in addition to the lack of competence on the part of defence counsel that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the trial would have been different.”

1. In that judgment Martin J also cited the decision of the Supreme Court of the United States in Strickland v Washington 104 S.Ct.2052 [1984].  The opinion of the Court in that case was delivered by O’Connor J who said, (at 2068):

“The defendant must show that there is a reasonable probability that, but for Counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

1. Her Honour further said (at 2065):

   “Judicial scrutiny of Counsel’s performance must be highly deferential.  It is all too tempting for a defendant to second-guess Counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining Counsel’s defence after it has proved unsuccessful, to conclude that a particular act or omission of Counsel is unreasonable. (references omitted).  A fair assessment of Attorney performance, requires that every effort be made to eliminate the distorting affects of hindsight, to reconstruct the circumstances of Counsel’s challenged conduct, and to evaluate the conduct from Counsel’s perspective at the time.”

2. In R v Joanisse [1995] 102 CCC (Ont.CA), Doherty JA pointed out that the nature of the incompetence demonstrated will dictate the kind of inquiry needed to determine its effect upon the fairness of the trial.  He said:

“Counsel’s failure to meet competent standards does not automatically lead to a reversal of a conviction.  The ultimate purpose of the appellant inquiry is not to grade Counsel’s performance, but to determine whether a miscarriage of justice occurred.  The third and final component of this Court’s approach to allegation of incompetent representation at trial presumes a finding of incompetence and looks to the effect of that incompetence on the fairness of the trial proceedings.  This inquiry examines the nature and seriousness of Counsel’s errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict.  If Counsel’s incompetence rendered the verdict unreliable or the process unfair, then the appellant has demonstrated that he received ineffective assistance resulting in the denial of the right to a fair trial and a miscarriage of justice (74).”

1. Doherty JA continued (at 75) after citing United States authority:

“Whatever the American law may be this Court’s obligation to quash convictions which are the product of a miscarriage of justice requires that it consider the impact of Counsel’s incompetence on both the reliability of the result, and the fairness of the process by which that result was achieved.  A reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair. (references omitted).”

1. DB & the Director of Child Family and Community Service (supra) was a case on appeal from the Provincial Court where a grandmother was opposing an application by the Director of Child Family and Community Service for continuing custody of her two grandchildren.  It appears that at several interim hearings, the grandmother’s denials in evidence of accusations of abuse of her own children were not accepted.  At the final hearing her counsel did not call the grandmother or available family members to give evidence, leading to a situation where descriptions of a physical and verbal abuse allegations made against her were left unchallenged. An order was duly made in favour of the Director.

1. The grandmother appealed to the Supreme Court where the appeal was dealt with by a single judge who received affidavit evidence as to the conduct of counsel. He concluded that she had not received effective representation. One of the bases for that finding was the fact that her counsel had threatened to inform the Judge, if she did give evidence, that he dissociated himself from her decision to do so.

1. However the Judge found that counsel’s incompetence would not have affected the outcome of the trial and accordingly dismissed the appeal.

1. This decision was challenged on appeal to the Court of Appeal, which allowed the appeal.

1. Saunders JA said (at 28):

“In the language of GDB, the issues are of competence and miscarriage of justice, not necessarily in that order.  In this case the appeal judge, adopting the approach derived from Strickland, considered first the performance question and then the issue of prejudice.  This appeal lends itself to the same sequence and, in my view, the same analysis.  Given the conclusions on the performance issue, of the two questions, performance and prejudice, the critical question is prejudice.  Whether there is a reasonable probability that the result of the hearing would have been different, but for Counsel’s errors.  That is, the focus of this appeal in considering the fairness of the hearing is the effect, if any, of the deficiencies of representation upon the reliability of the result.”

1. Her Honour found that counsel had been in significant dereliction of his duty and in considering the question of whether the deficiency required a new hearing, she said (at 31):

“This question may be answered by asking another: is there a reasonable probability but for the deficiency of representation, the result would have been different?  If there is such a reasonable probability, then confidence in the outcome is undermined then one must say there is an unacceptable risk that the custody order is not in the child’s best interest.  While a child custody proceeding does not engage the same liberty interest as does a criminal proceeding, the interests of the parties and the community, in my view, bear that quality which engage as the caution of the courts where egregious flaws in representation are established.”

1. She considered that the appeal should be allowed and a new trial held. The other judges concluded similarly.

1. Rowles JA in her judgment focussed on the nature of the incompetence demonstrated.  She pointed out that in some cases, counsel’s incompetence rested in conduct which permeates and infects counsel’s entire performance, citing R v Cook [1980] 53 CCC 2d 217 (Ont.CA) where counsel was impaired during a good part of the trial, including his closing address. His condition so obscured the appearance of fairness of trial that no inquiry into the reliability of the verdict was needed in order to conclude that a miscarriage of justice had occurred.

1. She also referred to a footnote to R v Cook where Doherty JA referred to another kind of case in which the appearance of fairness was lost:

“Cases of ineffective representation such as R v Cook supra, are closely attuned to cases where the accused is required to proceed without Counsel in circumstances where he cannot receive a fair trial without the assistance of Counsel.  In those cases, the appearance of the fairness of the trial is lost because the accused was unrepresented, regardless of whether the assistance of Counsel could have affected the verdict.”

1. Rowles JA also pointed to conflict of interest cases as being another example of ineffective representation that destroys the fairness of the judicative process because counsel’s undivided loyalty to the client is an essential component of a fair adversarial process.

1. In the present case we are exercising both the Court’s property jurisdiction and its jurisdiction in relation to children. We think that a clear distinction must be drawn between the two. We would class property cases as classic adversary cases where the results of a miscarriage of justice are not as serious from a community point of view as criminal cases or those involving children. We will deal with the property issue subsequently.

1. So far as the children’s jurisdiction is concerned, the Full Court has pointed out in the past that this is not strictly an adversarial jurisdiction, see: In re P (a child) (1993) FLC 92-376; Hutchings and Clarke (1993) 92-373; Re Z (1996) FLC 92-694; T and S (2001) FLC 93-086. It is a jurisdiction in which the children’s best interests are paramount. The children, though not parties, are the subjects of the litigation. In such circumstances we think that the principles to be applied to children’s cases are different to property cases, and perhaps should be more liberal than in criminal cases in relation to this issue.

1. We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.

1. On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.

1. As was stated by Doherty JA in R v Cook (supra), the situation is akin to those cases where it is sought to introduce fresh evidence on appeal in circumstances where, by reason of the party’s lack of representation, that evidence was not introduced at trial.

1. In this regard we refer to the decision of the Full Court of this Court in T and S (2001) FLC 93-086, which applied the majority judgment of the High Court (McHugh, Gummow and Callinan JJ) in CDJ v VAJ(1998) FLC 92-828. In that case the majority held that the principle that the child’s best interests are paramount is clearly relevant to the question as to whether further evidence should be admitted because the Full Court is eventually bound to have regard to the child’s best interests as the paramount consideration in determining the appeal.

1. In T and S, the Court held that the trial Judge had conducted the trial with fairness and competence. However the appellant had been unrepresented for most of the trial. On appeal she sought to introduce evidence as to her having been a victim of domestic violence by the father of the child in question. This evidence was available at the time of trial but because of her unrepresented state and possible personality deficiency was not presented at trial. The Full Court held that if accepted, the evidence was of such a nature that the result of the trial may have been different and accordingly ordered a new trial. In doing so, it took the child’s best interests into account as the paramount consideration

1. We think it is the fact of the best interests principle that further distinguishes child related cases under the Family Law Act. Applying the above principles we think that there are two issues to be established. One is as to whether incompetence on the part of counsel has been established, and we would adopt the view taken by O’Connor J in Strickland (supra) as the appropriate one in applying this test.  The other is the issue of prejudice and we think that the appropriate test to be applied to the issue of prejudice is that adopted in DB’s case (supra), that is, but for the incompetence of counsel, is it reasonably probable that the result of the trial would have been different?  There may, as was pointed out in DB’s case, be cases where the procedural irregularities are such as to demonstrate a miscarriage of justice regardless of the result.  In our view such cases would be less common and we do not regard this case as falling into that category.

APPLICATION TO THE PRESENT APPEAL

1. We turn first in this case to the issue as to whether in the circumstances of this case, the husband has showed prejudice to the extent that the judgment should be set aside.  To put the question another way, has he established that there is a probability that had the alleged incompetent handling of the matter by his counsel not occurred, the result is likely to have been different? It seems to us, that in this case, it would be appropriate for us to consider this issue first.

1. For the following reasons we are satisfied that it would not have been different.

1. In our view, it was always highly likely that the issue of residence would have been resolved in favour of the wife, unless the husband had been able to show not only a significant lack of parenting capacity on her part, coupled with superior qualities on his own part, but that the children’s general welfare and emotional wellbeing would be better advanced in his care.

1. We say this because a grant of residence in his favour in relation to the two boys would have led to the splitting of siblings and the disruption of an established family. 

1. All too often in family law proceedings, parents tend to look at the issues from their own point of view, and fail to recognise the enormous support that siblings give to each other generally and particularly in circumstances of relationship breakdown.  A relationship breakdown having occurred, a decision to further disrupt the relationship of the siblings may well have devastating effects upon all of them.

1. It may have been recognition of this difficulty that prompted the husband to initially seek residence orders in relation to all of the children. 

1. Like the trial Judge however, we think that this was a bizarre suggestion in the circumstances of this case and one that strongly supports Mr De Rooster’s views as to the lack of insight on the part of the husband. We say this given the background to the matter and particularly the allegations of sexual abuse made by “C” against the husband. In such circumstances, the concept of a court ordering the two older girls to reside with the husband, who is not their father, would be unthinkable.  In saying this, we are not commenting upon the validity or otherwise of “C”’s allegations of sexual abuse against him.  We would however, point out that the fact of his acquittal establishes no more than that the prosecution was unable to prove the case beyond reasonable doubt to the satisfaction of a jury. Quite different considerations would apply in this jurisdiction if that issue were to be tested.

1. Regardless of the truth or otherwise of “C”’s allegations against the husband, the fact of them having been made and persisted with by her throughout the trial would always have made it impossible to contemplate making a residence order in his favour in relation to her or her sister.  This was made particularly clear by the attitude that the girls expressed to the husband when spoken to by Mr De Rooster and also by Mr De Rooster’s assessment of the relationship between the girls and the husband which he described as dysfunctional.

1. A further factor, which also would have militated strongly in favour of a residence order being made in favour of the wife, was the lengthy period during which she had been the sole care giver for the children at the time of trial.

1. The final blow to any faint hope that the husband might have had of obtaining a residence order in his favour, was contained in the report of Mr De Rooster, whose highly critical assessment of the husband destroyed any prospect of a residence order being made in his favour.  That report was not only accepted, but the trial Judge, after observing the husband in the witness box and in Court, formed similar views about him to those of Mr De Rooster. 

1. It is against this background, that the husband’s case for establishing the existence of a miscarriage of justice must be examined.

1. We note that the husband says that he requested “Mr G” to obtain an adjournment so that he could challenge Mr De Rooster’s report and that “Mr G” did not make any application to do so.  We have little doubt that if “Mr G” had made such an application, it would have been refused.  The only basis for such an application would have been so that the husband could search around to try and find an expert who might be prepared to differ from the views expressed by Mr De Rooster.  It is highly unlikely that the Court would have permitted the children to be subjected to any further interviews for such a purpose by another person.  At best it might have been possible to have obtained an expert who would express theoretical criticisms of Mr De Rooster’s report.  We think that any such criticisms would have had little weight, had such evidence been available.

1. We also note that at the time that the husband attempted to reopen his case, he made no complaint about having not been given the opportunity to call an alternative expert and in fact did not foreshadow that he wished to do so.

1. The major criticism that the husband makes of his counsel relates to his failure to call various witnesses. The basis of calling these witnesses appears to have been firstly, to support the husband’s case that he was a competent parent, and secondly, to attack the credit of the wife, particularly in relation to the time at which she first made the sexual abuse allegations.  Given the weight of the case against the husband, we do not think that any support that he could have obtained from the evidence of the witnesses as to his parenting capacities would have made any difference to the outcome. 

1. So far as their usefulness in attacking the credit of the wife is concerned, it may be that if their evidence had been accepted, the trial Judge might have formed a view that the wife had become suspicious of the husband’s behaviour towards “C” at a point earlier than 2000.

1. At best, the evidence of the fax and of the witnesses would have established such a proposition.  We do not think that this would have had any relevance to the outcome of the case and would have had little effect upon the wife’s credit in any event. 

1. Similar considerations apply to the husband’s criticisms of “Mr G” for failing to cross-examine the wife in relation to issues involving the allegation of sexual abuse It seems that the husband considered that his counsel should have in effect, sought to retry the sexual abuse allegations in order to attack the credit of the wife, and possibly that of “C”.  Again, the determination of those issues would appear to us to have little or nothing to do with the issue as to whether and in whose favour, residence orders should be made in respect of the boys.

1. Again in relation to his witnesses, the husband asserted that had they been called, they would have been able to establish that the husband availed himself of the full period of contact pursuant to the 1998 orders.  If they had done this, it is possible that his Honour may not have made the finding that he did on that issue. However the finding was in our view in no way critical to his Honour’s overall decision, and related to what we regard as a peripheral matter.

1. As to his counsel’s alleged failure to address evidence that the husband considered would have demonstrated perjury by the wife, we do not consider that if counsel had pursued a cross-examination in this area, it would have established perjury. At best it might have established an inconsistency in the wife’s story, which could not have affected the outcome of the case. Further the credit of the wife was not a critical issue in the case, but rather the capacity of the respective parents to properly care for the children.

1. The husband also was critical of his counsel for failing to attack the validity of the Departmental file note, which indicated that the child “L” was in a filthy condition while in his care.  Again, if this issue had been pursued, it might have perhaps enhanced the trial Judge’s view of the husband’s parenting capacity if it had been determined in his favour, but could not have affected the outcome of the trial.  Contrary to the husband’s view, this file note was not an essential aspect of the opinion given by Mr De Rooster of the husband’s suitability as a resident parent and was in no way dependent on it.

1. It should be remembered that the aspect of this case that his Honour considered to be the most important was the ability of each of the parents to cater for the emotional needs of the children. His Honour’s view and that of Mr De Rooster, was that to order that the children reside with the husband, was likely to damage their emotional well being.  Such a finding would not, in any way, have been affected by the determination that the Departmental file note, in relation to the physical care of one of the children, was inaccurate. 

1. Finally, we refer to the husband’s complaint about the failure of his counsel to enforce the subpoena directed to “Mr L”. “Mr L” had never played any part in the life of the two boys and very little part in the life of the girls. Any views that he might have had as to the parenting capacity of the wife were unlikely to be of assistance to the Judge. In our view counsel might well have been the subject of criticism by the trial Judge if he had attempted to call this witness.

1. We have outlined a number of other matters of which the husband complains.  We do not propose to deal with the remainder of them in detail because we consider that none of them, if established, could have affected the outcome of the trial. 

1. It follows that we are of the view that the husband has failed to establish any miscarriage of justice in relation to the making of residence orders in favour of the wife. Similarly, we are unable to detect any miscarriage of justice relating to the contact orders that his Honour made.  These contact orders recognised the role of the husband as the father of the two boys and set in place a regime that, if it had been followed, would have lead to a normal contact arrangement taking place between the husband and the children.  We were told from the bar table that this arrangement had not been successful, but it would be inappropriate for us in the context of this appeal, to examine that matter, which can no doubt be the subject of further proceedings before a single judge should it become necessary.

1. Given our findings that no miscarriage of justice has been established, it becomes unnecessary for us to consider the other issue that the husband would have needed to establish in order to attack the judgment, that being the alleged incompetence of his counsel.  We agree with the views expressed by Major J on behalf of the Supreme Court of Canada in R v G.D.B. (supra) at 29, to the effect that in those cases where no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. In referring to the performance component, his Honour was referring to the issue as to whether counsel’s acts or omissions constituted incompetence. In that regard, we also bear in mind the comments of O’Connor J in Strickland’s case, endorsed by Major J in the above case, as to the need to be cautious when exercising hindsight. 

1. We also think that counsel’s approach to this case, might well have been affected by the sorts of considerations to which we have referred, namely the limited value of the additional evidence and the overwhelming strength of the report by Mr De Rooster.  However, we are not required to consider the matter further and we do not propose to do so.

1. It follows that the husband’s appeal in so far as it relates to the children’s issues, will be dismissed.

PROPERTY PROCEEDINGS

1. If residence orders had been made in favour of the husband, it may well be that his Honour’s orders in relation to the property proceedings would have to be reconsidered.  However, given that the wife remains the primary care giver of the children and has the major responsibility for their care, it seems to us that the husband has failed to demonstrate any error on the part of his Honour in relation to the property orders that he made. 

1. The husband again complains that his counsel did not elicit evidence that the wife had earned monies during the marriage, or had an earning capacity even as an Avon sales lady, or as a maker of children’s clothes.  Had he done so, this might well have had a double-edged effect, so far as the husband was concerned.  If in fact it emerged that the wife had earned monies during the marriage which were applied for the benefit of the husband and the children, then his Honour’s findings as to her contribution, may well have been substantially higher and may well have balanced out any corresponding reduction in the percentage ascribed by him to s75(2) factors. 

1. In any event, as we have said, property proceedings stand in a different light to other proceedings relating to children, when considering claims of a miscarriage of justice brought about by the incompetence of counsel.  We think that so far as the property proceedings are concerned, this is a classic situation where the appellant husband is bound by the conduct of the case by his counsel. In saying this we do not accept that there was necessarily anything wrong with counsel’s conduct of his case in this regard.

1. Otherwise, it seems to us that the property orders made by his Honour were if anything, on the conservative side, so far as the husband was concerned and we are not satisfied that his discretion miscarried in any way.  The appeal in relation to the property proceedings will also be dismissed.

ORDERS

160.The orders of the Court are:

1.That the appeal is dismissed.

2.That the husband pay the costs of the wife and the child representative of and incidental to the appeal, to be taxed or otherwise agreed.

I certify that the 160 preceding paragraphs are a true copy of
the Edited Reasons for Judgment delivered by this Honourable Full Court.

Danny Sandor
Senior Legal Associate to the Chief Justice