Oscar & Delaware; Oscar & Austen

[2014] FamCAFC 32

FAMILY COURT OF AUSTRALIA

OSCAR & AUSTEN; OSCAR & DELWARE [2014] FamCAFC 32

FAMILY LAW – APPEAL – CHILDREN – Parenting orders in proceedings concerning two children involving one father and two mothers – Orders that father have no contact or communication with either child other than by cards or letters – Where the father raises for the first time on appeal a conflict of interest on the part of the Independent Children’s Lawyer – No merit in the complaint where the conflict was only raised after the father was unsuccessful at trial – Where the father complains that the two proceedings had been heard together – The father’s counsel consented to this course – Where the father complains that the trial Judge accepted the evidence of one of the mothers – The trial Judge treated the evidence of both mothers with caution – Where the father complains the trial Judge did not make definitive findings about sexual and physical abuse – The trial Judge was not obliged to make definitive findings – Where the father complains that there was no order for supervised time – The trial Judge’s decision that each of children should not spend any time with the father was not only open to him, but was almost compelled on the findings made – No error – Appeal dismissed.

McGillivray & Mitchell (1998) FLC 92-818
SSHontestroom v SS Sagaporack [1927] AC 37

APPELLANT: Mr Oscar

RESPONDENT (NA 36 OF 2012): Ms Delware

RESPONDENT (NA 37 OF 2012): Ms Austen

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBERS:	BRC	4067	of	2009
BRC	4069	of	2009

APPEAL NUMBERS: NA 36 & 37 of 2012

DATE DELIVERED: 6 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Brisbane

JUDGMENT OF: Bryant CJ, Thackray and Ainslie-Wallace JJ

HEARING DATE: 18 February 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 5 April 2012

LOWER COURT MNC: [2012] FamCA 211
[2012] FamCA 220

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Barataraj

COUNSEL FOR THE RESPONDENT

(NA 36 OF 2012):

Mr Hanlon

SOLICITOR FOR THE RESPONDENT

(NA 36 OF 2012):

PL Corby & Co

COUNSEL FOR THE RESPONDENT

(NA 37 OF 2012):

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CM Bint Family Lawyers

Orders

NA 37 of 2012

1. The application in an appeal filed by the respondent mother on 22 January 2014 be dismissed.

NA 36 of 2012 and NA 37 of 2012

1. The application in an appeal filed by the appellant father on 26 April 2013 be dismissed.

2. The applications in an appeal filed by the Independent Children’s Lawyer on 4 February 2014 be dismissed.

3. The appeals be dismissed.

4. There be no orders as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oscar & Delware; Oscar & Austen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Numbers: NA 36 & 37 of 2012
File Number: BRC 4067 & 4069 of 2009

Mr Oscar

Appellant

And

Ms Delware
(NA 36 of 2012)

Respondent

Ms Austen
(NA 37 of 2012)

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Oscar (“the father”) has appealed against orders preventing him from having any contact with his daughters, Z and B, who were aged five and three years respectively at the conclusion of the trial.    

2. Z is the child of the father’s relationship with Ms Austen, and B is the child of his relationship with Ms Delware. 

3. The orders were made by Benjamin J on 5 April 2012 after a 12 day trial during which the applications concerning the girls were heard concurrently. 

4. Ms Austen and Ms Delware seek the dismissal of the father’s appeals, as does the Independent Children’s Lawyer (“ICL”).

The orders appealed

1. The orders made in both proceedings were identical.  They provided, amongst other things, for:

   ·    each child to live with her mother;

   ·    the mothers to have sole parental responsibility; and

   ·    the father not to be able to spend time with either child or communicate with them (other than by cards/letters on five occasions each year).

Brief background

1. The father was 46 years of age at the date of hearing.  Ms Austen was 44 and Ms Delware was 43. 

2. The father was born in Spain; lived for a long time in England; and came to Australia in 2004 on a visitor’s visa. 

3. The father and Ms Austen met in 2005 and lived together until mid-January 2007.  They separated very shortly after Z was born in January 2007.  

4. In about April/May 2007, the father formed a relationship with Ms Delware.  Their daughter, B, was born in July 2008.  The relationship between the father and Ms Delware ended in February 2009.

5. In February 2009, Ms Delware and B left Queensland, where they had been living with the father, and moved to Tasmania to be near Ms Delware’s family.  They were still living in Tasmania at the time of trial. 

6. The father has not seen B since separating from Ms Delware.  He spent regular time with Z after separating from Ms Austen, but stopped seeing her in May 2007, and made no further effort to see her until May 2009, when he filed the application which led to the trial before Benjamin J.

7. The father’s proposals at trial were for equal shared parental responsibility and for him to spend time with both children, initially limited to supervised visits, but then moving to unsupervised time.  To facilitate his time with B, the father proposed that Ms Delware return to Queensland and live within 50 km of his residence.    

8. Both mothers proposed that the children spend no time with the father and that he communicate with the children only by cards and letters on special occasions.  The ICL sought similar orders. 

9. At the time of trial, the father’s immigration status was in doubt.  Ms Austen had withdrawn her support for his visa application after they separated, and his application was refused in March 2009.  Following an appeal, the matter had been remitted to the Migration Review Tribunal for another hearing.  Nevertheless, Benjamin J determined the matter “wholly on the basis that the father will have a continuing right to reside in Australia …” (Reasons [326]).

The trial Judge’s reasons

1. The trial Judge published reasons for judgment in both sets of proceedings, although they were in very similar terms. 

2. The following extracts from the reasons relating to Z will provide sufficient background to indicate the basis upon which his Honour reached his decision concerning both children (all the footnotes have been omitted in our citations from the reasons):

   281.The father has displayed a range of bizarre, obsessive, unpredictable and cruel behaviour.  The father’s traits make him ‘an unlikely candidate for any form of psychotherapy but he would possibly respond to education’. [His Honour was here citing the opinion of Dr [V], the single expert] Having seen the father give evidence and hearing other evidence I am not so confident that the father is open to such education.  He was resistant to advice on care for both children when they were infants and has a strong view as to his own abilities and determinations.  As submitted by counsel for the ICL the pathway to enabling a relationship between the father and [Z] is fraught with difficulties.

   282.Ms [Austen] is genuinely fearful of the father and that fear is unlikely to be ameliorated.  She believes that [Z] would be at risk in his care and Ms [Austen], like Ms [Delware], has an implacable entrenched negative view of the father and would not come to any such process willingly or with goodwill.

   283.I am concerned as to the impact of such a process upon Ms [Austen] … Dr [V] was of the opinion that Ms [Austen’s] response would be of extreme distress, probably out of proportion to the likely harm that would eventuate.  To overcome this Ms [Austen] would need to undertake psycho dynamic therapy over a period of two years.  How this could be funded or if it is indeed available in her community was not explored.  The outcome however, is that such an approach would have a significant impact upon the parenting of [Z] by Ms [Austen].

   284.Having considered this in the context of the other findings and factors I am persuaded that, on balance, there is not a positive benefit to [Z] having a meaningful relationship with the father.

3. In dealing with concerns about possible sexual abuse, his Honour said:

   285.The allegations of sexual abuse on which Ms [Austen] relies are based upon allegations made by Ms [Delware], together with her own concerns about the father’s sexual assault upon her following separation.   

   286.In respect of the complaints made by Ms [Delware], on that evidence alone, I would not have made a positive finding, as submitted by counsel for Ms [Delware] nor would I have concluded that there was an unacceptable risk to either [B] or [Z].

   287.However, I need to look at the whole of the evidence, including the approach to nudism adopted by the father, which has a sexualised content to it, nursing a child whilst both were naked (with disregard to the mother’s objections), running naked in the rain with a very young infant (with disregard to the mother’s objections), carelessness about the safety of the infant children, assaulting Ms [Austen] whilst she was feeding [Z], assaulting Ms [Austen] when she was making [Z] available to see the father, threatening to remould [Z’s] head in the absence of a natural birth, straightening legs, and numerous other examples …

4. In dealing with the possibility of the father having supervised time with Z Austen, his Honour said:

   292.I am satisfied that leaving [Z] in the father’s unsupervised care would expose her to both physical and emotional risks.  As a consequence, any time that the father spends with the [Z] would need to be strictly supervised.  Even then I would be concerned that the father would not accept or adopt direction.  This would impose a significant burden on the contact centres. This would in turn impose a burden on Ms [Austen] creating a need to come back to court for further orders.

   293.Having regard to the father’s approach in the past and to the opinions of Dr [V] and the family consultant it seems that the father is unlikely to change in the short or medium term, and as a consequence [Z] is at risk of harm in the unsupervised care of the father.

   …

   333.The impact of the evidence from Dr [V] and the family consultant is that there would be a significant adverse impact on both mothers if their respective child spent time with the father.  The only way that could occur was with the complex treatment over many years as set out earlier and even this was based upon the goodwill of the parties and the willingness of the father to accept education. Neither of which is likely to occur.  That significant adverse impact upon the mothers will undermine or diminish their ability to parent each of the children. 

   …

   343.… The expert recommendations, which are not seriously challenged, are that each of the mothers would have to undergo cognitive behaviour therapy for at least ten to twelve sessions initially, followed by two years of psycho-dynamic psychotherapy.  At the same time the father would need to undertake a parenting education course specific to the developmental age of each of the children on a one on one basis with a psychologist.  Ms [Austen’s] evidence is that she would struggle to cope with this approach, and can only envisage doing so if she is living in close proximity to Ms [Delware].  Ms [Austen] is [Z’s] primary carer and an order for time would undermine Ms [Austen’s] ability to parent.

   344.Any initial time would need to be supervised because the father is a stranger to the children and either of them could not be left in his unsupervised care.  The supervision would need to be observed and assisted.  The supervisors would need to be both assertive and observant.

   345.There is no good will on behalf of either of the mothers to the father.  They are both likely to comply with orders but are unlikely to genuinely support them.

   346.I accept the submissions of the ICL that there is little or no evidence that any of the parents have the capacity to act with some form of good will towards the other.  The mothers are likely to view any therapy with anger, denial or resentment to the other and the father is likely to treat education the same way.

   347.I am not confident that either mother would cope with the proposed regime or cope with the father spending time with the children.  I accept the evidence of each of the mothers as to the impact that it would have on them.

   348.I conclude, in the circumstances of this case, it is not possible or feasible for time to commence between the father and the children.

   349.One of the questions raised by counsel for each of the children was ‘where to from here’?  I have serious concerns about the father’s ability to care for the children and the children being at risk in his care.

   350.Accordingly, having regard to all of the evidence and all of the factors, I have come to the view that there ought not to be any face to face time between each of the children and the father.

Grounds of appeal

1. The grounds of appeal in each matter were identical, save that in the appeal in the proceedings involving Ms Delware, the father sought to challenge an order for costs that May J made when giving the father leave to appeal out of time.

2. At the hearing of the appeal, the Chief Justice distilled the complaints into nine groups.  It is convenient for us to consider them in those categories. 

Procedural unfairness to the father

1. Grounds 1 to 4 contained two complaints.  One related to a potential conflict of interest on the part of the ICL and the other related to the fact that the proceedings were heard concurrently. 

ICL’s alleged conflict of interest

1. It was common ground on the hearing of the appeal that the solicitor who originally acted as the ICL had earlier seen the father when he sought advice at a legal advice bureau concerning restraining order proceedings commenced by Ms Delware.  The trial Judge was never made aware of this fact.

2. While it was also common ground that the ICL had drawn the potential conflict of interest to the attention of the father, who was at the time unrepresented, she did not draw the issue to the attention of his counsel at trial before Benjamin J.  Nor did she advise the mothers or their legal representatives.   

3. Although it was conceded by counsel for the current ICL that the former ICL should have drawn the possible conflict to the attention of the father’s counsel at trial, he correctly noted that, on the hearing of the appeal, counsel for the father had been unable to explain how the father had been prejudiced. 

4. While it was initially broadly asserted by counsel for the father that the father “could have provided confidential information” to the ICL at the legal advice bureau, it was later asserted that the father had disclosed “all his information”, albeit there was not a hint of what that might have been.  Importantly, counsel for the father acknowledged that the ICL had not adduced any evidence that drew on any such confidential information, nor had any cross-examination been conducted on the basis of such information. 

5. We might also add that we have difficulty in understanding what “confidential” information the father might have conveyed in his meeting at the legal advice bureau which he felt entitled not to disclose in the course of the proceedings in which the best interests of his children were the primary consideration.

6. The father’s case, put at its highest, was that there was a perception that the ICL could have made use of “confidential” information in deciding to support the orders proposed by the mothers at trial.  This complaint demonstrates a misunderstanding of the role of an independent children’s lawyer, who has a duty to represent the best interests of the children and to ensure that the court receives all evidence and submissions that might not otherwise be provided by the parties themselves.  Whilst an independent children’s lawyer is entitled to, and in this case did, advocate a particular outcome, he/she does not determine the matter.  The decision is made by the trial judge on the basis of the evidence adduced at trial. 

7. There was no complaint made to us about the conduct of the ICL, including any failure to adduce evidence or to pursue lines of enquiry.  We note also that the ICL was represented by counsel at trial and no issue was taken with his submission that it was Ms Delware, and not the father, who was “pursued” by him in cross-examination in relation to domestic violence issues (which had been the subject of the consultation between the father and the ICL). 

8. Although we recognise the father was unrepresented when the ICL informed him of the potential conflict of interest, and may therefore not have understood the legal ramifications, it is noteworthy that he did not see fit to inform his own counsel of his meeting with the ICL until after he had received an unfavourable decision.  In this context, the following observations made in McGillivray & Mitchell (1998) FLC 92-818 can be seen as having application also in cases involving an alleged conflict of interest on the part of an ICL:

   36.It is our opinion that if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity.  If he or she does not do so, then he or she is possessed of a weapon which can later be used as a delaying tactic at some point in the proceedings convenient to his or her position.  Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question, and on the bona fides of any alleged apprehension regarding the possible mis-use of such confidential information.

9. There is no merit in this complaint.

Failure to conduct separate hearings

1. The second complaint under this heading arises out of the fact that the trials of the two proceedings were conducted concurrently.  The complaint finds expression in Ground 3, which asserts that “counsel for the [father] requested without success both the matters be heard separately …”, and in Ground 4, which asserts that the trial Judge “erred in allowing the matter to be heard in one trial …”

2. It should be observed at the outset that the decision to conduct the hearings concurrently had been made earlier by Murphy J on 18 June 2010.  We were not informed that this was the subject of any controversy at the time of the hearing before Murphy J and, in any event, there was no appeal from that decision.

3. Nor was there any ground of appeal directed to the finding of Benjamin J that the parties had consented to the matters being dealt with concurrently.  His Honour’s finding in this regard is set out below:

   7.All parties consented to concurrent proceedings so that the hearing was conducted at one time with all evidence available in each of the proceedings.  I accepted and adopted that course.  However, it is necessary for me to consider each proceeding separately and make an individual determination in respect of each of the children.

4. Counsel for the father nevertheless informed us that he had a recollection of having asked the trial Judge to conduct the proceedings consecutively, rather than concurrently.  As the father was unable to afford the cost of obtaining the transcript, we ordered a transcript of the first 30 minutes of the hearing (having been assured that the relevant exchanges would be captured in this timeframe).

1. The transcript reveals (on page 3) that counsel for the father said to his Honour:

   What’s happening in this matter is, obviously, there has been an instruction that both cases to be heard at the same time.  I have no objection to it.

2. There was then discussion about a request made by counsel for the father for each mother to be absent during the cross-examination of the other.  During this discussion, his Honour pointed out that the evidence-in-chief of the mothers had already been given on affidavit.  Counsel for the ICL also pointed out that there would only be need for one of the mothers to be excluded during cross-examination.  (Transcript 22 August 2011, pp 4 & 5)

3. Counsel for the ICL, sensibly in our view, also suggested that counsel for the father might wish to “quarantine” his questioning – i.e. so that the exclusion of the mother who was to give evidence last would occur only during those portions of the cross-examination which could touch on issues about which she too might give evidence.  The trial Judge said he did not ask the other counsel to respond to this suggestion “because I wouldn’t mind having a moment to reflect on it myself before I make a ruling” (Transcript 22 August 2011, p 6).

4. His Honour then turned to other “housekeeping” issues, and the matter was not raised again during the period covered by the transcript which we obtained at the Court’s expense.  However, it is common ground that one of the mothers was, in fact, excluded during portion of the cross-examination of the other.  It can therefore be safely inferred that the parties ultimately consented to the suggestion of counsel for the ICL or alternatively the trial Judge accepted his proposal.  It is therefore important to record that counsel for the father conceded that at no point did he ask his Honour to have the other mother excluded during any part of the cross-examination (other than the portion from which we know she was excluded).  His excuse was that to have made such a request would have been “disruptive”, but that was his assessment, and not something about which the husband can now complain.   

5. There is accordingly no foundation for this complaint.

Failure to consider the unreliable evidence of Ms Delware

1. Grounds 5 and 6 were expressed in the following (most unsatisfactory) terms:

   5.Failed to consider [Delware’s] false testimony – that she saw applicant in a compromising position – anatomically not possible to see.

   6.Failed to consider perjury by [Delware] in lying in court that she contacted [Austen] only about 12 times but found 2,500 pages.  This matter was viewed seriously by his Honour to suspend the proceedings to subpoena all the documents relating to the communication between the two mothers.  His Honour erred in unreasonably giving the benefit to the mother and allowing her oral testimony in toto. 

2. Counsel for the father supported Ground 5 by referring us to a drawing Ms Delware had produced under cross-examination to depict what she had seen when she found the father in an allegedly compromising position with B.  It was submitted that the trial Judge should have found, as a fact, that the father had not been in the state of arousal alleged by Ms Delware because reference to the drawing would show it was “anatomically impossible” for her to have seen what she had described.   

3. The trial Judge, in speaking of this incident, at [234], said that, “on balance”, he could not:

   make the finding of fact asserted by [Ms Delware ] yet at the same time having regard to the whole of the evidence I am unable to find that it did not happen … 

4. Ms Delware’s evidence was that she walked into the room and saw the father in the compromising position she described.  It was not suggested that the evidence revealed she only saw the interaction of the father and the child from the position shown in her drawing.  It is therefore entirely fatuous to suggest, on the basis of a drawing produced under cross-examination, that the trial Judge was obliged to find that the incident described had not occurred.  Furthermore, it cannot be suggested that the trial Judge overlooked the drawing since he referred to it expressly, at [230], when discussing the allegation.

5. Ground 6 also proceeds on a false premise, since it assumes the trial Judge accepted Ms Delware’s oral evidence “in toto”.  The fact he did not will be apparent from the following paragraphs of his reasons (emphasis added):

   112.I do not find that Ms [Delware] has fabricated evidence, I am satisfied that she has harmonised her evidence with Ms [Austen] I am satisfied that her evidence needs to be treated with caution although not altogether rejected.  

   …

   122.I have considered the interaction between Ms [Delware] and Ms [Austen] in relation to their evidence.  That evidence is troubling; however, it has not entirely impeached the evidence of Ms [Delware].

   …

   141.I am not satisfied that Ms [Austen] and Ms [Delware] colluded to create false evidence, I am satisfied that at some levels they exaggerated their evidence and endeavoured to obtain forensic advantages.  I have had regard to this finding in assessing what weight to place on their evidence on contested issues.  Having regard to my findings on the quality of the evidence of the father, this task is not without problems.

6. These, and many other parts of his Honour’s reasons, demonstrate that the evidence of Ms Delware was treated with appropriate caution. 

Weight given to father’s purported need for an interpreter

1. Ground 7 complains about findings made by the trial Judge to the effect that the father had grossly exaggerated his need for an interpreter. 

2. We do not propose to discuss this complaint, as it was properly conceded that there was no basis upon which we could interfere with findings of a trial judge who had the benefit of observing the interaction of the father and his interpreter during a 12 day trial, in which “the question of the father’s ability to speak, write and communicate in English was front and centre from day one” (Reasons at [327]). 

3. It will be sufficient to recite just one of many paragraphs his Honour devoted to this topic to appreciate how we are in a “permanent position of disadvantage as against the trial judge” (SSHontestroom v SS Sagaporack [1927] AC 37 at 47):

   40.I observed the father clearly hearing, understanding and answering some questions in English.  At other times he said he did not understand similar questions and required them to be translated and had the answers interpreted.  Perversely at one stage he was asked to read a document which was in English.  He did so but he translated the part of the document from English into Spanish so that the interpreter could then interpret his words back into English. Watching the father’s demeanour during the trial was instructive.  From time to time when giving evidence he would hear perfectly plain questions and stare with a blank confused look and turn to the interpreter with a quizzical expression and nod when the question was translated.  It had an air of artifice.

Failure to draw definitive conclusion as to sexual abuse

1. Grounds 8 and 9 complained that:

   8.No conclusion if [the father] did indeed commit the actions as alleged by Ms [Delware].

   9.No specific conclusion was made if [the father] was abusive in the [Austen] matter.

2. As we understand these somewhat cryptic complaints, the father is aggrieved that the trial Judge did not arrive at any conclusive finding as to whether or not he had engaged in inappropriate sexual conduct.  Even had any cogent submissions been advanced in support of these grounds, the complaints demonstrate a misunderstanding of the obligation of the trial Judge. 

3. The approach his Honour adopted to the allegations of sexual impropriety may be seen from the following extract from his reasons where he considered a question posed to him, namely, “whether the serious sexual allegations made against [the father] has [sic] any credibility”: 

   321.… It is perhaps not accurate to say whether they were credible, for as I referred to earlier the approach is as set out in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ):-

   The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’.  In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access

   322.In this case it is the combination of sexualised conduct of the father to each of the children and at times their mothers, his physical and emotional abuse of the mothers, his endeavour to (and at times success in) controlling and dominating the mothers, his anger and uncontained behaviour to the mothers and to the children (as referred to in these reasons) make the father an unacceptable risk of abuse or violence to the children as an unsupervised carer of one or other of them.  Each of the mothers complains that the father is uncontainable and having observed him and hearing evidence, that complaint is well based. 

4. It is apparent from reading his Honour’s reasons that he was unable to make a definitive finding as to whether the father engaged in conduct of the nature alleged.  However, for the reasons he gave, he was satisfied there was an unacceptable risk.  That finding was well-open on the evidence, and his Honour was not obliged to go any further.

Failure to make specific finding as to physical abuse

1. Ground 10 asserted:

   10.No specific conclusion made if [the father] was physically abusive to child [Z] and too much emphasis was given of events alleged to have happened in just 4 weeks.

2. As best we could ascertain, no submissions were advanced in support of this ground.  In any event, the first part of the complaint reveals the same defect we identified in dealing with the previous two grounds, since his Honour was under no obligation to arrive at a definitive finding.  The latter part of the complaint cannot be considered in the absence of argument explaining its basis.

Failure to allow the father to spend time with the children 

1. Grounds 11, 12 and 16 were expressed in the following terms:

   11.Even if the unproven allegations were true the incidents are unlikely to recur as the children are grown-up and the parties have separated, therefore it is unreasonable for his Honour to order that the father shall not have any communication or contact with the children that would continue for the rest of his life.

   12.Failed to consider precedents that even if [the father] was guilty of abuse one [sic] as alleged by the mothers, there are precedents where the fathers have been found to have sexually assaulted the children and yet are awarded supervised visits.  His Honour never considered them.

   16.The judgment that [the father] should not ever see his children is too harsh for the alleged events.

2. Counsel for the father did not draw our attention to any evidence which would have provided a foundation for the proposition in Ground 11 that even if the father had abused the children in the past, this was unlikely to recur because the children “are grown-up and the parents have separated”.  It should be noted, of course, that the children could scarcely have been regarded as “grown up” by the end of the trial, and even now they are only aged five and seven years.

3. The complaint also fails to grasp the fact that the decision was based not just on concerns about risk to the children.  As will be seen from the extracts above, his Honour was also mindful of the likely impact on the mothers, and their parenting capacities, if he made any order for the children to spend time with the father.  The complaint also fails to address all of the practical considerations his Honour took into account in deciding not to order supervised time. 

4. The reliance in Ground 12 on other “precedents” is also entirely misconceived.  Although we accept supervised contact may have been ordered in cases where there has been a finding of unacceptable risk, each case must be determined on its own merits.  Reference to outcomes in other cases is of no assistance in the resolution of the unique circumstances that present in each individual case.

5. For the father’s appeal to succeed, we would need to be satisfied that his Honour’s decision not to allow the father any future time with the children was an outcome not open to him on the evidence.  Far from being satisfied that the decision was not open to his Honour, we are of the view that the decision was almost compelled by the findings he made. 

6. Ground 16 does not warrant separate discussion.

Failure to take account of tampering with witnesses

1. The father’s complaints about Ms Austen having allegedly tampered with witnesses were contained in the following grounds:

   13.His Honour erred in ignoring the crucial evidence that Ms [Austen] had tampered with the witnesses for [the father].

   14.His Honour ignored the evidence that Ms [Austen] had threatened one of the witnesses in closing the radio station if he did not retract his statement.

   15.His Honour ignored Ms [Austen’s] own statements that she induced one of [the father’s] witnesses to retract her statement.

2. The difficulty with these complaints is that the trial Judge found that Ms Austen had not tampered with witnesses – see reasons [67] to [71], [76] to [84] and [142].  We find it difficult to understand on what basis these grounds could be advanced in light of the paragraphs to which we have referred and especially in light of this clear finding:

   325.The next issue raised by counsel for the father was whether the actions of Ms [Austen] in prejudicing the course of justice, by tampering with [the father’s] potential witnesses, through threat or coercion should be ignored and she be allowed to have her request granted.  This is a somewhat inelegantly worded submission.  The two witnesses to which Ms [Austen] was alleged to have ‘tampered’ with has been dealt with elsewhere and I do not accept that she tampered with the witnesses as submitted.  Ms [Austen] spoke to Mr [E] in the context set out earlier.  As to Ms [A], the less said about her evidence and credibility the better.  Ms [Austen] was perhaps enthusiastic but there is no credible evidence that she has ‘prejudiced the course of justice’.

3. In the course of his oral submissions before us, counsel for the father also asserted that Ms Austen had approached another “witness”, Ms F, and persuaded her to retract her statement of 15 March 2010.  Counsel was unable to take us to any part of the record to substantiate his claim that Ms Austen had acknowledged seeking the “retraction”.  Later in his submissions, counsel for the father took us to a further statement signed by F on 2 June 2010 in which she said:

   I write as one of the many volunteer presenters at [the radio station] – [Community Radio].

   On 15 March 2010, whilst in the middle of a busy production project at the radio station, I was interrupted and asked if I would sign a paper confirming that [the father] had been a member of the radio station.  I was told he was claiming access to his child and needed to show that he had done some volunteer work at the station in the past.  I quickly signed the paper to confirm his contribution, and then continued on with my work.

   I wish to point out that during his time at the station, I did not then (nor indeed now) know [the father] on any personal level whatsoever, but only as a fellow-presenter on air, whom I occasionally encountered at the station (along with approximately 100 other volunteers).  I am unable, therefore, to vouch for the man’s character, integrity or personality in any way whatsoever.  I knew nothing of his relationship circumstances – nor was this information offered to me.  In any event, I consider that to be a private matter between him and Ms [Austen], and not station business.

   I re-iterate and confirm my previous statement that [the father] attended the radio station several years ago, to present his [on-air programme].  I was specifically asked to simply validate and sign his claim of membership, radio programme, presentation and attendance.  I do not wish to be involved in any other personal business between [the father] and Ms [Austen]. 

4. Counsel for the father asked us to draw an inference that it must have been Ms Austen who sought the “retraction”.  Quite apart from the fact that there is nothing to suggest this issue was ever raised at trial, we note that his Honour referred at [37] to an “affidavit” of Ms F filed 31 May 2011, along with other affidavits said to have been relied upon by the father, and noted that “much of [the] material was irrelevant and/or superficial”.  The original statement from Ms F was not only “irrelevant and/or superficial”; it was not an affidavit, but rather an unsworn reference.  We observe also that his Honour’s reasons make no reference to the “retraction”, which was also unsworn.  Finally, and self-evidently, the second statement does not constitute a retraction of the first.  Rather, it confirms such facts as were stated in the original statement and explains the context in which it had been provided.

5. Even if we could infer it was Ms Austen who obtained the second statement from Ms F, such conduct would not constitute “tampering” with a witness.  Quite apart from the fact that Ms F was not a “witness”, the second statement provided important clarification of the earlier statement, and thus potentially advanced the course of justice rather than hindered it. 

Bias of the trial Judge

1. Ground 17 asserted that his Honour was “biased, appeared to be biased and unrealistically assumed the children are at risk”.

2. No submissions were advanced to support the allegation of bias.

Costs ordered by May J

1. Ground 18 (in the Delware appeal) sought to impugn the order for costs that May J made on 17 July 2012 when granting the father an extension of time within which to appeal.  Apart from the erroneous assertion that “normally costs follow the event”, the ground contained a mishmash of complaints by the father which were largely directed to allegedly inaccurate information provided to May J. 

2. We do not propose to discuss this ground, as the orders under appeal are those made by Benjamin J.  If the father wished to appeal an order made by May J then he needed to file a Notice of Appeal in relation to that order. 

Applications in an appeal

1. As we noted at the hearing of the appeal, the ICL’s applications filed on 4 February 2014 asking for a document to be added to the appeal books will be dismissed, as it was discovered the document was already in the books.

2. We will also dismiss Ms Austen’s application filed on 22 January 2014 seeking leave to introduce further evidence.  Some of the material sought to be introduced was designed to demonstrate that the ICL had favoured the father rather than the mothers.  The balance related to events occurring after the delivery of judgment.  Given that we have found no merit in any of the grounds, it is unnecessary for us to consider any further evidence that Ms Austen considered might advance her opposition to the appeal.

3. We will also dismiss the father’s application filed 26 April 2013.  The only part of that application which he pursued was that in which he sought that the Appeals Registrar pay the cost of preparation of the transcript of the trial.  We advised at the commencement of the hearing that we would delay making a decision on that issue until we had heard the father’s argument.  While there are (exceedingly limited) circumstances in which the Court will meet the cost of transcript, having heard the argument of counsel for the father we concluded there was no basis on which the Court should meet the cost of transcript (other than for the first half hour of the trial for the reasons earlier discussed).

Outcome and costs

1. There being no merit in any of the grounds, both appeals will be dismissed, along with all of the applications in an appeal discussed above.

2. We took submissions on costs at the conclusion of the argument.  Ms Austen, who was self-represented, had not incurred costs and therefore did not seek any.  Ms Delware’s counsel sought costs if the appeal was dismissed.  The ICL also sought costs, although he properly acknowledged that the father’s circumstances are such that he would be unlikely to be able to meet an order. 

3. In reply, the father’s counsel drew attention to the fact that the father is not in gainful employment and has no assets from which to meet a costs order. 

4. Although we consider the father’s appeals were lacking in merit, we do take into account that the orders prevented him from spending any time with his children.  We also take account of his limited resources and the $2,500 costs order already made by May J.  We will therefore not make any orders for costs. 

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 6 March 2014.

Associate: 

Date:  6 March 2014