Orwell & Watson

[2008] FamCAFC 62

FAMILY COURT OF AUSTRALIA

ORWELL & WATSON [2008] FamCAFC 62

FAMILY LAW - APPEAL – From decision of Family Court Judge – Appeal from a discretionary decision – Child abuse – Allegations of sexual and psychological abuse made by mother – Trial Judge found a risk of sexual abuse but was satisfied that the risk not an unacceptable one – Trial Judge found that the child at unacceptable risk of psychological abuse by the father due to his manipulative and over-bearing behaviour and disrespect for boundaries – Trial Judge ordered that the child live with the mother and the mother have sole parental responsibility for the child – Father to spend supervised time with the child – The father appealed against all orders – Most of the challenges raised on appeal were to findings which are in the nature of inferences drawn from primary findings – Challenges to specific findings – The father challenged the trial Judge’s conclusions about his behaviour based on a number of incidents and evidence of those incidents – The father argued that with respect to the question of whether the father posed a risk of psychological harm to the child the evidence must show more than opportunity and capacity to act in a harmful way, but a propensity to do so – Argued by the father that the relevant risk must be more than conjecture – The trial Judge’s findings amounted to more than just conjecture – No merits in the arguments on appeal – Appeal dismissed

APPEAL – Costs – Father to pay the mother’s costs of the appeal

Family Law Act 1975 (Cth), s 117(2A)
Family Law Rules 2004, Division 19.6.2

Browne v Dunn (1893) 6 R 67
G v H (1994) 181 CLR 387
House v The King (1936) 55 CLR 499
In the Marriage of N and S (1996) FLC 92-655
Napier v Hepburn (2006) FLC 93-303
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Warren v Coombes (1979) 142 CLR 531

APPELLANT: MR ORWELL

RESPONDENT: MS WATSON

APPEAL NUMBER: SA 28 of 2007

FILE NUMBER: MLF 780 of 2005

DATE DELIVERED: 9 May 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Warnick, May and Boland JJ

HEARING DATE: 13 February 2008

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 6 March 2007

LOWER COURT MNC: [2007] FamCA 150

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr North SC

SOLICITOR FOR THE APPELLANT: Galbally & O’Bryan Lawyers

COUNSEL FOR THE RESPONDENT: Ms Nikou SC with Mr Mort

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Pty Ltd Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McCluskys Lawyers

Orders

1. That the appeal be dismissed.

2. That the father pay the mother’s costs of and incidental to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Orwell & Watson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA28 of 2007

File Number: MLF780 of 2005

MR ORWELL

Appellant

And

MS WATSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The essential issues at trial between Mr Orwell and Ms Watson can be no more succinctly described than was done by Dessau J in her reasons for judgment in those proceedings. Her Honour said:

   1.[J] is 5½ and has not seen his father, [Mr Orwell] for a year.  [Mr Orwell] wants his time with him to resume.  His mother, [Ms Watson] wants an order for no contact at all.

   2.[Ms Watson] alleges that [Mr Orwell] has sexually abused [J], and that [J] faces an unacceptable risk of sexual abuse, as well as psychological abuse in his care.  She says the father is manipulative, overbearing, and over-steps boundaries, and she says that she will not cope with the risks she perceives for [J], even if his father’s time with him is fully supervised. 

2. The trial took place in January 2007 over nine days.  Each of the mother, father and the Independent Children’s Lawyer was represented by counsel.

3. Dessau J described some details of the mother and father’s relationship and the father’s time with J after the separation of the parties, as follows:

   9.The parties’ relationship started in March 1999.  They lived together between about May and November 2001.  Their turbulent relationship continued beyond that for several years.  J was born [in] August 2001.

   10.[J] has at all times lived with his mother.  The parties’ versions vary as to how much time he spent with his father up until late 2004, but on any view they saw each-other [sic] frequently.  In late 2004, the parties agreed to start overnight contact.  Difficulties arose.  [Mr Orwell] started proceedings in this court on 7 February 2005.

   11.In early 2005 interim orders were made for [J] to be with his father each Tuesday and Thursday from 7.45am until 11.00am, and each alternate Saturday from 10.00am until 6.00pm.  In May 2005 the alternate week-end time was extended to be from 10.00am Saturday to 6.00pm Sunday on alternate week-ends.   The orders also provided for [J] to spend two one-week periods each year with his father, starting after 1 January 2006. 

   12.[Mr Orwell] last saw [J] on 24 January 2006.  At that time [Ms Watson] stopped contact, claiming [J] had disclosed sexual abuse. She also commenced proceedings to stop contact altogether.  The father responded, seeking increased time with [J].  It was agreed to obtain a Family Report from psychologist, [Ms L]. 

   13.Through several appearances at court, no orders were made for the contact to resume. …

4. When Dessau J delivered judgment in March 2007, the father was 59 years of age.  He was a health professional.  The mother was 37 years of age and was a health worker at a large organisation.  Each of the parties had children from previous relationships.  The mother’s child C, who was 10 and a half years old at the date of judgment, had lived with her and the father during their short period of cohabitation.

5. As to the first of the two allegations of abuse or risk of abuse made by the mother and set out in the quote above from Dessau J’s reasons, her Honour found:

   222.I cannot be satisfied on the Briginshaw standard of proof that [J] has been or has not been sexually abused by his father.  That leaves me to assess the risk of such abuse, and the magnitude of any such risk.

   223.I am satisfied that there is a risk of sexual abuse.

   …

   228.… I am satisfied that the risk is not an unacceptable one. …

6. As to the risk of psychological abuse, her Honour found:

   257.It is the entirety of the evidence that satisfies me that [Mr Orwell]’s manipulative and over-bearing behaviour, his disrespect for boundaries, his preparedness to do whatever it takes to get his own way goes beyond just being problematic for the mother in dealing with him.  I am satisfied that his behaviour has impinged on his close personal relationships and it poses an unacceptable risk of psychological abuse to [J].  The risk to the mother’s peace of mind and the impact of her distress is a consideration to which I will return.

7. Her Honour ultimately ordered that the mother have sole parental responsibility for J, that J live with the mother and that the father spend time with him on one Sunday in each three week period from 10.00am until 3.00pm and on several other days each year, subject to supervision by an independent professional supervisor at all times. Her Honour made ancillary orders as well.

8. These reasons are in respect of the father’s appeal against all orders.

9. Before us, Mr North of Senior Counsel appeared for the father.  Subject to one change, he adopted a summary of argument prepared by Mr Mawson of Senior Counsel.  In both the summary and Mr North’s oral submissions, the arrangement of argument was not according to the grounds of appeal, though there is no suggestion that it fell outside of them.  The basic argument is demonstrated by the first paragraph of the written summary:

   1.The primary submission on behalf of the Appellant is that the learned Trial Judge erred in her approach as to the consideration as to whether or not there was an unacceptable risk of psychological abuse.  The approach adopted by her Honour led to a failure to take into account all relevant circumstances and in fact led to a reliance on findings which were either unreliable or not properly supported by the evidence.

10. After an outline of Dessau J’s reasons, we will deal firstly with the challenges to specific findings and conclusions and then, the more general arguments about the trial Judge’s approach, including that her Honour failed to take into account all relevant circumstances.

OUTLINE OF DESSAU J’S REASONS

1. The judgment occupies 99 pages, but with respect, her Honour’s reasons are clear and succinct.

2. After a short introduction and background, her Honour discussed “RELEVANT LEGAL PRINCIPLES”.  She then said:

   THE ISSUES

   36.I cannot consider the matters in s 60CC of the Act until I have analysed the evidence to arrive at findings in relation to the dual issues of sexual and/or psychological abuse of [J].  They cast the longest shadow over this case.  I will deal first with the allegation of sexual abuse, although there is a significant overlap.

3. Dessau J’s discussion of the issue of sexual abuse or risk thereof, occupied from paragraph 37 to paragraph 235 of the judgment.  As her Honour had earlier said, “The detail is important”.

4. The following paragraphs dealing with the question of sexual abuse indicate many of the matters that the trial Judge was later to revisit when considering the risk of psychological abuse:

   7.[Mr Orwell] has a biological daughter, [S], who was adopted out at birth.  He had never met her until she sought out her birth parents.  He was 44 and she was 25 at the time.  Within 72 hours they commenced a sexual relationship that lasted nearly five years.  Together they have a 12-year-old son [X] who lives with [S] in England.  [X] returned to live with her at the end of 2006, having lived with [Mr Orwell] in Melbourne from July 2005.

   …

   99.… After two earlier pregnancies and terminations, they decided to parent a child together when [S] had her third unplanned pregnancy with her father. …

   100.I have heard differing professional opinions assessing that incestuous relationship and its relevance to the allegations that [Mr Orwell] has sexually assaulted his son.

   …

   105.Although the relationship occurred between two consenting adults, [Mr Orwell], with his maturity and professional experience, must have been able to appreciate the power imbalance, and [S]’s vulnerability having sought out her birth father.  The fact of the relationship reflects very poorly on him, but it is his insight about it that is particularly important to me in my overall assessment of his parenting capacity, and in relation to these allegations.

   …

   107.I am satisfied that although clever enough not to simply excuse his aberrant behaviour, at least to the experts, the father has tried to justify it and his on-going “love affair” with [S]. …

   …

   109.[Mr Orwell] was criticised for not allowing [X] to return to live with [S] in England in the latter part of 2006.  [X] was expressing a clear desire to do so.  It is irresistible to conclude that he was at least partly motivated for [X] to remain because it helped his case if at this hearing he could be seen to be entrusted with [X]’s care.  That is unimpressive, but ultimately he did permit [X] to return.

   …

   114.[Ms Watson] alleges that [Mr Orwell] has shown that he disrespects boundaries, not only by his incestuous relationship with his daughter, but also in other respects.  She pointed to the way in which he has involved other people in his private relationships to suit his own ends.

   115.The letter [Mr Orwell] wrote to [Ms Watson]’s parents on 20 June 2004 provides an example. … It was inappropriate.

   116.A more stark example of [Mr Orwell] over-stepping boundaries, and putting his needs for vindication ahead of the needs of others, was the evidence about secretly taped telephone conversations between himself and [S]. …

   117.To support her claim that [Mr Orwell] was manipulative, and would do what was necessary to get his own way, the mother produced a “Where’s Wally” book sent by the father for [J]’s birthday in August 2006.  Throughout the book, containing intricate drawings in which the reader must find the small “Wally” character, [Mr Orwell] had pasted tiny, very carefully placed and hard to detect pictures of himself, [Y] [the father’s current partner] and [X]. …

   …

   119.But the “Where’s Wally” book reflects poorly on the father. …

   120.When counsel for the mother described this part of the evidence to Ms [L], the psychologist was concerned that any supervision of contact would need to be very careful.  In my view, [Mr Orwell]’s conduct in this regard gives me an insight into his inclination and capacity to do what he needs to achieve his ends, but is more particularly relevant when I assess the risk of psychological/emotional abuse to [J] and his mother’s capacity to cope if there is contact.

   [Mr Orwell] and Pregnancy Terminations

   121.Throughout the hearing, the issue as to whether or not [Mr Orwell] took appropriate responsibility for his actions was raised.  He gave evidence that he had experienced up to 11 or 12 unplanned pregnancies with various partners (including several with each of [S] and [Ms Watson]).  His explanation was that he believed that each partner in each instance was on the contraceptive pill and that it was efficacious.

   122.Ms [L]’s professional opinion was that [Mr Orwell]’s attitude to these terminations shows a disturbance of thinking, is not logical or rational, and suggests a cognitive distortion to suit himself.  Importantly, at the time of forming their opinions about [Mr Orwell], psychiatrists Drs [S] and [K], and psychologists Ms [E] and Ms [O], did not know of this history.  I will return to their assessments.

   123.In my view, it defies belief that a mature adult, let alone a medical practitioner, would not learn from earlier lessons and take appropriate action to avoid unwanted pregnancies.  I was not impressed.  I do not believe he has acted responsibly.  That is to his discredit.  It gives me insight into the man, but not necessarily the sexual abuse allegations.

5. Dessau J then discussed the father’s current relationship with Y, 27 years of age; his relationship with X and C; and the parents’ conduct and attitude towards each other.  When discussing the last-mentioned topic, her Honour referred to many SMS messages between the mother and father.

6. The next topic considered by Dessau J was the expert evidence, given by eight practitioners.

7. Her Honour then moved to her “Conclusion re sexual abuse” commencing with paragraphs 222 and 223 earlier set out.  Among her reasons for rejecting the mother’s case on this issue were some comments critical of the mother’s role in respect of relevant events, such as:

   231.I emphasise that I do not find that the mother has deliberately fabricated the sexual abuse allegations, although I do find she has exaggerated parts of her evidence to bolster her case in favour of [J] being kept safe from the risks that she perceives and fears.

   …

   233.In this case it is possible that in the midst of what was clearly a very unhealthy relationship for her, she talked recklessly in front of the child, was ready to think the worst, and jumped to adverse conclusions about the father, her anxiety prompting her to question him over and over, so that things snowballed, with leading questions and answers developing into disclosures.  I am satisfied there had been significant pressures on the mother, at least in part directly from [Mr Orwell]’s behaviour, that contributed to her fragile state of mind.

8. Having dealt with the risk of sexual abuse, the trial Judge commenced her examination of “PSYCHOLOGICAL ABUSE” by saying:

   236.The mother claims that there is also an unacceptable risk of psychological abuse to [J] if he has contact with his father.  Again, the father vehemently denies that. 

   237.In my view the evidence supports her concern.  I have touched upon most of the threads of evidence that lead me to this view, but need to return to them for this particular purpose.  I emphasise at the outset that just because aspects of [Mr Orwell]’s behaviour are unimpressive or unattractive, that in itself does not lead me to conclude that his son is at risk in his care.  It is the potential impact on [J] that is important.

CHALLENGES TO SPECIFIC FINDINGS

1. Before dealing seriatim with these arguments, we make the general observation that most of the challenges are to findings that are more in the nature of inferences drawn from “primary” findings.  Thus, to the extent that each conclusion is supported, that support may appear from findings at various parts of the judgment which, for their full force to be perceived, need to be considered together.  In this regard, we note that the trial Judge said:

   257.It is the entirety of the evidence that satisfies me that [Mr Orwell]’s manipulative and over-bearing behaviour, his disrespect for boundaries, his preparedness to do whatever it takes to get his own way goes beyond just being problematic for the mother in dealing with him.  I am satisfied that his behaviour has impinged on his close personal relationships and it poses an unacceptable risk of psychological abuse to [J].  The risk to the mother’s peace of mind and the impact of her distress is a consideration to which I will return.

2. The discussion to be found in the consideration of the first challenge, about the position of an appellate court reviewing inferences drawn by a trial Judge, applies to consideration of most, if not all of the other challenges, to specific conclusions.

3. (i) In paragraph 256 of her reasons, Dessau J said:

   256.…It is likely that he [J] has settled away from the abuse and emotional pressure in his father’s household.

4. Mr North argues firstly that, contained within that conclusion, is necessarily a finding that there had been abuse and emotional pressure in the father’s household.  Secondly, he submits that such a finding was not open to her Honour on the evidence.  We agree with Mr North’s first proposition.  We disagree with the second.

5. Mr North acknowledged a finding which, he was prepared to concede, related to misconduct by the father with the child, in paragraph 254 of the judgment.  That paragraph is as follows:

   254.I am satisfied that early criticisms made by the mother that [Mr Orwell] was speaking disrespectfully about her in front of [J] are plausible, in the light of the tenor of his messages to her.  I accept that was a genuine concern she harboured about [J]’s time with his father, well before the sexual abuse allegations arose.

6. However, this paragraph does not expressly contain findings about the father’s behaviour, but rather about the mother’s beliefs about that behaviour.  So Mr North’s concession may be more than he need offer.  In these circumstances, we would regard the findings as not inconsistent with those in paragraph 256, rather than as support of them.

7. Mr North describes the attack on the finding in paragraph 256 as being the “shortest route home”; that is, by which we would allow the appeal.

8. He says the trial Judge has made a mistake of fact and that it was not clearly unrelated to the result.  He says we should conclude that the mistake was made because, in accordance with a passage in Warren v Coombes (1979) 142 CLR 531 at 551, this Court should examine the evidence and reach its own conclusion on the proper inference to be drawn. In that case, in the High Court (Gibbs ACJ, Jacobs and Murphy JJ) said (footnotes omitted):

   There is in our respectful opinion no authority that entitles us to depart from the doctrine expounded in this Court in cases before and including Paterson v. Paterson and in the House of Lords in Benmax v. Austin Motor Co. Ltd.  The balance of opinion in cases since Edwards v. Noble inclines in favour of adherence to that doctrine.  Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed are established by the findings of the trial judge. … (emphasis added)

1. We make the following comments about this submission:

   (i)Their Honours qualified the statement of principle, as one applying “in general”.  A great deal of the factual conclusions reached in parenting applications in the Family Court involve an “evaluative” component, the assessment of an action – a primary fact – for its significance to a more abstract notion - parenting capacity, attitude, probable future behaviour.  We perceive that the conclusions of a trial Judge about such matters deserve considerable weight.

   (ii)We do not take their Honours to be saying that from every set of facts only one proper inference will be available.

   (iii)Their Honours continued on from the passage quoted, as follows:

   … In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. …

   What derives from this addition is that an appellate court will only interfere with the factual conclusion of a trial Judge if, after giving weight and respect to it, the appellate Court is satisfied that there was a proper conclusion to be reached and it was not that drawn by the trial Judge.

2. In G v H (1994) 181 CLR 387, Brennan and McHugh JJ said at 398:

   An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts.  The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. …

3. With these statements in mind, we return to Dessau J’s judgment.

4. Firstly, the finding under challenge (emphasised below) must be considered in the context of the paragraph of which it formed part:

   256.Both Mr [K] and Ms [L] have commented on how unsettled [J] was when they first saw him, and how settled he has now become.  That was one feature that influenced Ms [L] in her conclusion as to the risk of abuse.  Both experts noted that even though [J] misses his father, he has become settled in himself after not spending time with him.  I cannot be certain as to why he has settled.  It is likely that he has settled away from the abuse and emotional pressure in his father’s household.  That is the likelihood apparently favoured by the Family Report writer.  It is also likely that his mother is herself more settled, not worrying about [J] in his father’s care, and herself having no contact with him.  It is most likely a combination of both that has enabled him to settle down.

5. Matters referred to within the paragraph itself support the trial Judge’s inferential finding that there had been abuse and emotional pressure in the father’s household.  Firstly, Ms L, the psychologist who, pursuant to court order, prepared a Family Report, opined that there had been abuse and/or pressure in the father’s household.  Secondly, evidence that the child was unsettled at a time when he was having frequent contact with the father but afterwards, when not having contact, was noticeably more settled, provides a basis for an inference that some factor arising in the time that the child spent with the father, caused him to be unsettled.

6. However, with regard to Ms L’s view of abuse in the father’s household, Mr North argues that Ms L had directed herself to the risk of sexual abuse and her view was that it was the removal from that risk that contributed to the child’s settled state.  He adds that Dessau J did not agree with Ms L’s conclusion about sexual abuse.  The answer to this submission is that the use made of Ms L’s evidence by Dessau J in this paragraph is not derived from her finding of a risk of a particular type of abuse, but rather that, from the comparison between unsettled state and settled state in the context of the time at which and circumstances in which each state presented, an inference about the source of disturbance could be drawn.

7. Moreover, as has already been seen and will be further discussed, there were numerous other findings individually and collectively adverse to the father’s behaviour.  Her Honour was entitled to have regard to those findings when considering what lay behind the child’s transition from an unsettled to a settled state.

8. Dessau J also had before her a concession by Dr S that severe depression might make a person act atypically and his evidence was that Mr Orwell was suffering from severe depression in the period leading up to the cessation of contact with J.

9. (ii) The next conclusions challenged are:

   240.It is clear that [Mr Orwell] will stop at nothing to get his own way.  The single best illustration is the taping of the 50 or so conversations with [S] in about 2001 and 2002.

10. Dessau J had discussed the tapes earlier in her judgment:

    116.A more stark example of [Mr Orwell] over-stepping boundaries, and putting his needs for vindication ahead of the needs of others, was the evidence about secretly taped telephone conversations between himself and [S].  He taped at least 50 of their calls in around 2001 and 2002.  He then sent copies of the tapes to [S]’s adoptive parents, to her partner [W], and to his brother and sister, in England.  He said that he did so to try to protect his access to [X] at a time when [S] was “unwell” and changing her mind, constantly breaking agreements.  Although he claimed that he wanted to support [S] in every way, and particularly in relation to her troubled relationship with [W], his actions were to the contrary.  Far from supporting her, he was, as it was put to him in cross-examination, “poisoning the ground” for her, effectively undermining the only supports she had available to her.

11. Mr North’s first submission was that there was no evidence of the content of the tape, other than a brief description in oral evidence.  The second point that Mr North made was that there was evidence that S’s adoptive parents and S’s partner had been involved in a conference or informal discussions about X and his best interests and this context provided some “innocent” explanation for the father sending the tapes to those persons.

12. However, it is far from clear to us from the evidence to which Mr North took us that the father’s motive in supplying the tapes to the persons concerned, which included also his brother and sister, was not one from which conclusions against him might be drawn.  Relevant passages from the transcript are:

    For what purpose did you provide those tapes to each of those people? ---To demonstrate that I have been absolutely respectful towards any emerging relationship [S] might have to prove that I was not interested in any way destabilising, quite the contrary, any relationship she had.  I was desperate for her to have a stable relationship so I could have some predicability in my relationship with [X].  I was desperate because the general thesis that I should be kept away from [X] because [S] tended to always sort of poison the ground between me and [W] and her parents when we could have had a reconciliation and productive relationship that would have protected [X]’s interests.  So even though it’s a most unusual thing to do, I felt it would just demonstrate that there was no other way I could convince them of my truthfulness and that’s what it was for.  It was not a malicious thought, it was purely to protect [X]’s interests, purely that.

    Why did you need to convince these other people of your truthfulness, what business was it of theirs?---Well, you see, it’s an extremely prejudicing and inflammatory background to have had the history that [S] and I shared and so why wouldn’t be uncertain my credentials you might say, that I’m a good parent and I was just wishing to progress and safeguard my position with [X].  It’s all worked out for the best and apologies ware made all around and we’re reconciled.  I was desperate about [X]’s safety and future that is why I did that.  I thought in a future time there might be in a case like this or in a court maybe it would be relevant but not in the way you’re making it so.

    …

    What did you mean by “poisoned the ground”?---I felt that her new partner [W] and her parents, that all of us being people of good intention towards children and [X] in particular, that we could all – there was always signs and potentials that we could reconcile and discuss plans for [X] and his best interests and indeed I did achieve that for a period with [W] but she tended somehow to set people against each other and be in the middle and that was an unfortunate pattern of being up and down and changeable and that’s what Dr [Z] referred to.

    …

    Are you saying by “poisoned the ground”, that term in reference to [S], it’s an indication that she set aside people against each other?  Is that what you mean as part of your answer”---No, not people in general but – yes, in relation to [W] and in relation to her parents.  She is happy – completely admitted all that since.

    And members of your family.  The reason for doing that was because she had agreed upon certain things with you and then gone back on them.  Correct? ---Correct, and that they were all parties to the conference.

    The purpose of taping her was to get evidence of things she said to you.  Correct?---Yes, evidence of arrangements with [X].

    Evidence of records, if you like, that word, things she had said - - -? ---Pertinent to [X]’s wellbeing.

    Commitments she had made to you about [X].  Correct?---Yes.

    At various times she went back on those commitments and you felt that you had these records to prove what the commitment originally was?---There was only that one time of crisis.

    Yes.  Sir, I’m just asking you about this one time of crisis.  What you say you did was send a copy of these tapes to various people to support your case clearly in deference to hers.  Correct?---sorry, in what to hers?

    You sent copies of these tapes to various people including her boyfriend, her father - - -? ---yes, but they all knew - - -

    - - - to establish what you were saying in deference to what she was saying? ---In relation to the conference that they had all had about the future way forward.

    Yes.  Now, what you were clearly doing the, I would suggest, is seeking to undermine what she was saying in preference to what you were saying in argument.  Correct?  That’s the purpose of it, isn’t it?---Yes.

    You then go on to say in your evidence today that there’s nothing you wanted more than for her to have this successful relationship with [W]?---Yes.

    How do you, sir, achieve – well, assist, the promotion of a relationship between your daughter and another person by actively undermining her credibility with that other person?—In fact the tapes showed that I had supported her relationship.  That was the point; that it was to support a relationship with [W] and - - -

    That’s what it shows you were doing; but it shows that she was not seeing things eye to eye with you and had gone back on her word; in fact was being dishonest.  Correct?---It wasn’t her fault.  She was under so much pressure.

    Sir, that’s what you were attempting to show, isn’t it; that you were right and she was wrong, and “Here’s the evidence”.  Correct?---Yes.

13. As to Mr North’s first point that there was little evidence of the tapes’ contents, any significance of the father’s actions in sending the tapes to other persons, as seen from the evidence, was related to their general nature, rather than specific content, and to the father’s motives.

14. As to the first finding in paragraph 240 of her reasons, that the father would stop at nothing to get his own way, we note that Dessau J also saw matters, other than the forwarding of the tapes, including the matter referred to in paragraph 241, as supporting her conclusion.  We address an attack on findings in paragraph 241 next.

15. (iii) Paragraph 241 reads:

    241.I have also quoted above from a letter that [Mr Orwell] wrote to Mr and Mrs [Watson] Senior on 20 June 2004.  Again he sought to justify the letter by explaining his need to appeal to [J]’s grandparents in order to “set things right” so far as his care for [J] was concerned.  It is a 4½-page typed letter and involves her parents in ways and with information that I fully accept would have made them extremely uncomfortable, and embarrassed their daughter.  As I have noted, he wrote of personal issues as to when she was seeking to have another child with him, and of pre-conditions that he placed on resuming a relationship with her.  He reports various transgressions of [Ms Watson] to her parents.  And he wrote how this letter was a “record---a very important record since it forms part of [J]’s family history.” He did apologise for various actions of his own throughout the letter, but it was a self-justification, and an inappropriate letter disclosing inappropriate details to the parents of his partner or former partner.

16. Dessau J had earlier discussed the letter at paragraph 115:

    115.The letter [Mr Orwell] wrote to [Ms Watson]’s parents on 20 June 2004 provides an example.  He said that he sent it because he was devastated that [Ms Watson] had taken intervention order proceedings and he was concerned that she was trying to interfere with his relationship with [J].  Although the letter contained some self-justification, he did also admit fault on his part, and did formally apologise to them for the stress and the worry they had suffered.  But [Mr Orwell] went well beyond appropriately pleading his case to [Ms Watson]’s parents, to the needless disclosure of personal information that was likely to embarrass their daughter.  For example, he informed them that as recently as two weeks before the order [Ms Watson] was telling him that she wanted to become pregnant to him.  He reported various other transgressions of the mother’s.  It was inappropriate.

17. Mr North submitted that several aspects of the context in which the father sent the letter militated against the conclusions which Dessau J drew against the father.  Firstly, there were the SMS messages, in respect of which her Honour had noted that messages were sent by the mother to the father expressing her “…ardent wish to have another baby with him.”  Secondly, Mr North pointed to the action of the mother of causing a complaint and summons to issue against the father, in which her Honour relied in part upon communication about the topic of the father and the mother having another baby.  Thus, Mr North said, the mother herself put that matter in the public arena.

18. Mr North also drew our attention to some of the cross-examination of the father, where the father said that the purpose of sending the letter was to protect his relationship with J.

19. The short answer to these submissions is that the circumstances - that the mother communicated with the father about the matter of having another child with him; that she caused the issue of the complaint and summons referring to communication between them about that topic; and that the father claimed he sent the letter to protect his relationship with the child; – did not, in logic, prevent Dessau J from drawing conclusions against the father because of the father’s actions in broadcasting that and other matters to the mother’s parents.

20. (iv) The next argument concerned the content of paragraph 242 of Dessau J’s reasons:

    242.The “Where’s Wally” book also gives rise to concern.  I have observed that it transpired to be an accurate suspicion on his part that the mother would not pass on material sent by him.  But he did not even try to send a photograph either directly or through his solicitor at the time he tried to forward the other material. The surreptitious nature of the secreted photos in the book cannot help but alarm the mother.  Ms [L]’s alarm was also profound.  Again it is clear that he will circumvent boundaries to achieve his ends. 

21. This matter was first referred to at paragraph 117 of her Honour’s reasons and the following paragraphs:

    117.To support her claim that [Mr Orwell] was manipulative, and would do what was necessary to get his own way, the mother produced a “Where’s Wally” book sent by the father for [J]’s birthday in August 2006.  Throughout the book, containing intricate drawings in which the reader must find the small “Wally” character, [Mr Orwell] had pasted tiny, very carefully placed and hard to detect pictures of himself, [Y] and [X].  The mother said he was “surreptitiously” trying to reach [J].  He conceded that, but said it was at a time when he had not seen [J] for about seven months, he wanted to keep the memories alive for [J], and he was not confident that the mother would pass on his cards or messages.

    118.[Mr Orwell]’s concerns were well founded.  I was shown an appropriate five-year-old birthday card amongst the parcel of gifts and cards forwarded to [J] via the mother’s solicitor.  It was not passed on by the mother, not because the experts had advised her against it, but because, in her own words, after keeping it aside for Ms [L] to approve it, she had “put it in a cupboard and forgotten about it.”  That reflects poorly on her.

    119.But the “Where’s Wally” book reflects poorly on the father.  Granted, the fun of a “Where’s Wally” book is to find a hidden character.  But that is no excuse for “surreptitiously” hiding characters at a time when contact was stopped.  He made no effort first to send photographs through proper channels.

    120.When counsel for the mother described this part of the evidence to Ms [L], the psychologist was concerned that any supervision of contact would need to be very careful.  In my view, [Mr Orwell]’s conduct in this regard gives me an insight into his inclination and capacity to do what he needs to achieve his ends, but is more particularly relevant when I assess the risk of psychological/emotional abuse to [J] and his mother’s capacity to cope if there is contact.

22. Again, it can be seen that the trial Judge’s conclusions under challenge were consistent with, and partly founded upon, expert evidence of Ms L.

23. Mr North submitted that the forwarding by the father of pictures of himself could not have had the potential to be psychologically harmful to the child.  He pointed out also that there was no express prohibition against the father as to indirect contact.  He added that the mother’s conduct, with regard to not passing on to the child material from the father, was high handed.

24. We do not accept that there was no prospect that the forwarding of the pictures in the manner done would be psychologically harmful to the child.  Firstly, the father conceded that his actions were surreptitious.  At the time the book was forwarded, the question of contact between father and child had been considered and rejected by the court.  The child was undergoing counselling.  More open avenues of endeavouring to forward photographs to the child were available, even though the mother had not passed on material beforehand.  Moreover, in our view, the opinion of Dessau J that the surreptitious nature of the secreted photos could not help but to alarm the mother was open to her.  The sending of the book surreptitiously also had the potential to involve J in a secret kept from his mother.

25. As Dessau J said in paragraph 120 as earlier quoted, the father’s behaviour in this regard was particularly relevant when she was assessing the risk of psychological or emotional abuse to J (as well as his mother’s capacity to cope if the father did spend time with the child).

26. (v) The next finding challenged was in relation to paragraph 243:

    243.There is another example of how [Mr Orwell] blurs appropriate boundaries in his behaviour that I have not referred to above.  It is small in itself, but is consistent with the other evidence in this regard.  When he had technical difficulties down-loading some of the mother's messages from his mobile telephone, he enlisted the help of one of his patients.  Given the nature of the messages, not only personal but also belittling to both the protagonists, that was patently inappropriate.  The fact he could not see that raises the same doubts about his judgment and impulsivity.

1. Mr North argued that there was no reason to conclude that there was something inappropriate about the father’s behaviour referred to in this paragraph from the mere fact of a doctor/patient relationship.  He also argued that there was no evidence that the patient could read the messages in question.

2. As to the latter point, the question of the patient’s access to the content of the messages was only obliquely raised in cross-examination of Ms L, if at all.  What was asked was:

   Well, there was no suggestion that the patient was reading them or anything.  It was just simply assisting him to use some technology, wasn’t it?

3. This proposition is as to whether the patient was actually reading the messages, not whether the patient could read the messages.

4. As to both points, again, the correctness or not of the conclusion is not amenable to resolution by the application of legal principle.  We think a trial Judge is entitled to conclude that a doctor, acting professionally, will not blur aspects of his or her personal life, particularly where privacy of a former intimate is also involved, with the relationship of doctor and patient.  Her Honour’s finding really says no more than this.  She recognises that it is a matter of small moment and draws no more conclusion from it than that it raises the same doubts about his judgment and impulsivity as did other evidence of greater moment.

5. (vi) Next, Mr North attacked the finding in the last sentence of paragraph 244, which was in relation to a comment by the father in evidence that at the time he commenced the relationship with his daughter he was not sure that she was actually his daughter.  Her Honour said:

   It was an opportunistic excuse, offered well after the event, to meet a difficult moment in cross-examination.

6. Mr North focused particularly on the use of the word “opportunistic”.  The entirety of paragraph 244 is as follows:

   244.[Ms Watson] claims that [Mr Orwell] is manipulative.  The evidence supports that.  Dr [S] referred to his rather pompous and discursive style of speech.  That was certainly clear in his evidence.  He was loquacious and seemed to approach many answers with cunning, twisting his evidence opportunistically.  For example, in cross-examination about the start of his sexual relationship with [S], he emphasised that they “anguished” over it.  He then had to admit in cross-examination that in fact he had sex with her within 72 hours of meeting.  He then said that at the time he was not sure that she was actually his daughter.  It does not seem he had raised any such doubt with [S]’s mother when she contacted him to set up the meeting with [S].  He had not offered that account when talking to the various experts.  It was an opportunistic excuse, offered well after the event, to meet a difficult moment in cross-examination.

7. We think it of significance in Mr North’s argument that there is no attack on the trial Judge’s findings in the few sentences that immediately precede the finding in the final sentence of paragraph 244.  The preceding findings are: that the father had not raised any doubt about parentage of S with S’s mother when she contacted him to set up the meeting with S; nor had he offered such a doubt when talking to the various experts.  These findings were relevant to a characterisation of the claim made in cross-examination as being opportunistic.

8. We have been taken to the relevant passages of the transcript.  Her Honour’s conclusion is very much one related to an assessment of the viva voce evidence.

9. (vii) Subsequently, Mr North turned his attention to the trial Judge’s findings and conclusions expressed in paragraph 247:

   247.Ms [L]’s evidence about how she found [Mr Orwell] was important.  She is an experienced and well-qualified psychologist.  Ms [L] admitted that she found [Mr Orwell] extremely difficult to curb and control.  He directed and manipulated the conversation so that she simply could not conduct her usual and preferred questions and answers.  She felt overwhelmed and bombarded by the material he sent her after the interview.  I gave some consideration to a pure personality clash as the explanation, but if I consider the telephone messages and calls to the mother and her parents, the letter to the maternal grandparents, and his conduct towards and treatment of [S], as well as the manner in which he gave his evidence, I accept Ms [L]'s observations and opinion in this regard.

10. Mr North contended that, with regard to the matters considered in this paragraph, her Honour ought have addressed the evidence of Dr S, the father’s treating psychiatrist over a considerable period of time.  Dr S reported that he found no evidence of manipulative or coercive behaviour by the father.  Mr North added that Dr S, who gave evidence before Ms L, was not cross-examined about the difference between Ms L’s view and his.

11. Mr North referred to the rule in Browne v Dunn (1893) 6 R 67 and to consideration of that rule in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370 and Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 225 and 236. Browne v Dunn (supra) is primarily a rule relating to the conduct of a trial.  A party may be prevented from calling a witness to give evidence, which should have been but was not put to an earlier witness for the other party.  Further, a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness’ evidence should not be accepted.  The rule does not directly apply to what a trial Judge should do in the circumstances that Mr North suggested confronted Dessau J.  Perhaps in recognition of this, Mr North stopped short of saying that in the circumstances that confronted Dessau J in this case, there was any absolute rule as to what she should have done.  Thus, Mr North’s proposition that the trial Judge fell into error immediately loses force.

12. We think there are other flaws in Mr North’s argument.  Dessau J had earlier discussed the evidence of Dr S in paragraphs 173 to 180, inclusive.  In the course of that discussion Dessau J noted that Dr S had found:

    …no evidence of manipulative or exploitive behaviours with regard to his psychotherapeutic treatment…(emphasis added)

13. Thus, on its face Dr S’s opinion is quite differently directed from that expressed by Ms L and we are not at all satisfied that an obligation arose on the Independent Children’s Lawyer or counsel for the mother to put the relevant opinion of Ms L to Dr S.

14. Furthermore, Dessau J had concluded in respect of Dr S’s evidence as follows:

    180.In assessing Dr [S]’s evidence, I am conscious that as [Mr Orwell]’s long-term treating psychiatrist, his task has not been to forensically check or make other independent inquiries as to what his client has told him.  His role has been supportive and therapeutic.  That came through in his evidence.  I cannot simply dismiss his professional opinions, but when it comes to the complex issues in this case I also have other more rounded material.

15. Finally, as seen in paragraph 247, in accepting Ms L’s opinion of the father, Dessau J considered it consistent with a conclusion she had drawn from a body of other evidence.

16. (viii) Finally of these specific complaints, Mr North criticised those of the trial Judge’s conclusions drawn from the exchange of SMS messages between the parties.  These findings, so far as they relate to the risk of psychological abuse, are set out in paragraphs 248 to 251, inclusive, of her Honour’s reasons, which we now set out:

    248.For the purposes of considering the sexual abuse allegations I have already referred to the various SMS messages between the parties.  I have noted they reflect poorly on the mother as well as the father.  I find [Ms Watson]’s evidence was exaggerated when she referred to [Mr Orwell]’s “constant harassment” through messages and calls, and that she distanced herself from her contribution at the level it appears in those messages.  I think the relationship was far more complicated than she conceded, primarily laying the blame on [Mr Orwell] and taking less responsibility than she should.  She presented a black-and-white picture, of herself virtually always struggling against him, and of [Mr Orwell] never letting her go.  Relationships generally are complicated, and this one particularly so.  I am satisfied that [Ms Watson] was not simply or always a defenceless victim.  Having said that, I am satisfied that the parties are not evenly matched and of the two of them, [Mr Orwell] is the more culpable.

    249.When this relationship commenced, [Ms Watson] was just over thirty, [Mr Orwell] in his early-fifties.  He was [a health professional, she was a health worker].  From the psychiatric and psychological evidence it seems that she was the more fragile of the two, particularly in light of her abuse in the past, and given her less assertive personality.

    250.The SMS messages show that [Ms Watson] was part of the battle.  However, without needing to repeat the messages here, I note that [Ms Watson] was dealing with a formidable foe with a more sophisticated intellect than her own.  There was a more simple or infantile nature to her string of “I hate you” or “I wish you were dead” type messages, than [Mr Orwell]’s more sophisticatedly worded lashings.  In addition, the messages support the mother’s case of feeling over-borne by the father.  Although he may argue that some repeated calls and messages were appropriate as a concerned father pressing to spend more time with his son, it is not unreasonable that she experienced his sustained insistence as over-bearing and draining, when she was already ensuring he was seeing [J], or she was complying with court orders.

    251.I accept [Ms Watson]’s version that prior to the first intervention order proceedings, she had been trying to end the relationship but simply could not get away.  There was no litigation on foot when [Ms Watson] commenced those proceedings, and no tactical advantage to her in seeking that order.  I accept, from her complaints to Ms [M] in late 2003, she was anxious and distressed about the relationship and wanted to end it.  I accept that she did not succeed.  Her weakness was exemplified by “the baby messages” in February/March 2004.  But she was provoked by [Mr Orwell].  I note in his letter to her parents in June 2004 he admitted having commented in early 2004 “how nice it would be to have a little sister for [J]”.  At the time he was living with [Y] and I am satisfied he was having a sexual relationship with her, but still stringing [Ms Watson] along.  I accept her evidence, supported by messages that were in evidence, that she then truly tried to extricate herself from the relationship.  I accept she was struggling emotionally, and could not cope with the particularly heavy email and telephone traffic from [Mr Orwell].  I accept on the balance of probabilities that he harassed her when she tried to break free emotionally, and she remained enmeshed in this unhealthy relationship. 

17. In our view, her Honour’s consideration exhibits a balanced approach and a reasoned assessment of the evidence.  Further, her ultimate conclusion, namely that on the balance of probabilities, the father had harassed the mother when she tried to “break free emotionally”, is supported by the preceding findings in the paragraphs quoted.

THE BROADER CHALLENGES

1. Firstly, Mr North, summarising his attacks on specific conclusions about the father’s attitudes and behaviours, pertinent to the question of whether the father posed a risk of psychological harm to the child, argued that the evidence must show more than opportunity and capacity to act in a harmful way, but a propensity to do so.  In particular, he said, the propensity must be in respect of the father’s behaviour towards the child. 

2. In our view, as a general comment, the line between propensity and capacity, particularly in the context of a history of behaviour, is not as sharp as Mr North’s submission implies.  This is not a case in which the only evidence was as to conduct between the father and other adults.  S is his child, albeit an adult when he met her.  There was a finding about the father retaining X against his wish to return to his mother in the United Kingdom, for the father’s own purposes.

3. Further, Dessau J linked the findings about the father’s character and attitudes through his behaviour towards others, including his own children, S and X, to risk to J, when she identified forces that were likely to influence the way the father behaved towards J.  Her Honour said:

   253.I make no moral judgment about [Mr Orwell]’s serial relationships with younger women.  It is the dynamics about which I am concerned, and his capacity to enlist and engage their support, when objectively it might not be expected.  When combined with all the other evidence, it raises the concern, underlined by Ms [L], that he could very easily enlist, manipulate and overwhelm [J].  And I accept Ms [L]’s evidence that it would be very difficult indeed for [J] to withstand his father’s manipulative and overbearing behaviour.

   …

   271.I fear for [J] that the father will not have the willingness or ability to encourage [J]’s relationship with his mother.  He is very deeply aggrieved by all the criticisms and allegations in this case, and given his personality and conduct, I accept Senior Counsel for the wife’s submission that it is probable that in the father’s care there would be enormous pressure on [J] to recant any allegations, and enormous pressure to see things from his father’s and contrary to his mother’s point of view.

4. In a similar vein Mr North submitted that the relevant risk in cases such as this must be more than conjecture.  He referred to remarks by Fogarty J in In the Marriage of N and S (1996) FLC 92-655 relating to assessment of “unacceptable risk” and to the remarks of the majority of the Full court in Napier v Hepburn (2006) FLC 93-303, particularly at paragraph 56 (which quotes substantially from the judgment of Fogarty J in N and S (supra)).

5. We accept that a finding of unacceptable risk must be based on more than conjecture.  However, we have already expressed our view of the adequacy of the foundations for her Honour’s conclusions of unacceptable risk.

6. Again, we consider that there were adequate foundations which rendered her Honour’s conclusion proper.

7. Secondly, the written summary that Mr North adopted, in support of the proposition that Dessau J’s conclusion was against the weight of the evidence, pointed to findings by the trial Judge about the positive feelings of J towards the father, reflected in his wishes to spend time with the father, and to findings of a negative nature, about the mother.

8. But nothing about those findings, though favouring the father’s case, indicates that they must necessarily override contrary factors.  Moreover, the very fact that Dessau J made findings favouring the father’s case militates against arguments that her Honour made some moralistic assessment of the father’s behaviour, or otherwise approached the matter in an unbalanced way.  The trial Judge’s task was to balance those findings against findings favouring the mother’s position, which her Honour did.

9. Further, findings about the mother’s behaviour are only relevant if they go to the question of the time, and the circumstances under which, the father should spend time with the child.

SUMMARY

1. This appeal is from a discretionary decision.  The principles relating to such appeals have often been discussed, but for present purposes are sufficiently set out in House v The King (1936) 55 CLR 499 at 504‑505.

2. We are not satisfied that Dessau J took account of any irrelevant circumstance or failed to take account of any relevant factor.

3. We are satisfied that in each respect, the factual conclusions of the trial Judge were well founded.  We are not satisfied that any were improper conclusions.

4. As we find no merit in any of the arguments put to support the appeal, it should be dismissed.

COSTS

1. The Independent Children’s Lawyer did not seek costs in the event of the appeal’s failure. The mother did. We consider that of the matters referred to in s 117(2A) of the Family Law Act 1975 (Cth), the result and the comparative financial circumstances of the father and mother, so far as we know of them, justify an order that the father pay the mother’s costs.

2. Ms Nikou SC for the mother asked that we fix the costs in the sum of $33,920.00. We do not consider that we are in a position to fairly assess the costs, an issue better dealt with under Division 19.6.2 of the Family Law Rules 2004.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  9 May 2008