Pascoe & Larsen (No 4)
[2023] FedCFamC1A 127
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pascoe & Larsen (No 4) [2023] FedCFamC1A 127
Appeal from: Pascoe & Larsen [2023] FedCFamC2F 392 Appeal number(s): NAA 64 of 2023 File number(s): WOC 655 of 2021 Judgment of: ALDRIDGE J Date of judgment: 9 August 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the application before the primary judge was brought on urgently for hearing because the child faced medical and dental treatment about which the parties could not agree – Where the primary judge ordered the mother to have sole parental responsibility for the child’s health and medical treatments and for the appellant to pay her costs of the application – Procedural fairness – Allegations of actual and apprehended bias – Challenges to factual findings – Whether the orders are in the best interests of the child – No error established – Appeal dismissed – Appellant to pay the costs of the respondent in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 69ZN, 117(2A) Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Elias & Elias (No. 2) [2019] FamCAFC 92
Forster & Forster [2016] FamCAFC 143
Galea v Galea (1990) 19 NSWLR 263
Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lenova & Lenova (Costs) [2011] FamCAFC 141
Mallory & Mallory [2020] FamCAFC 62
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 88 Date of hearing: 14 July 2023 Place: Sydney Counsel for the Appellant: Litigant in person Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Broun Abrahams Burreket Solicitor for the Independent Children’s Lawyer: Venus & Smart ORDERS
NAA 64 of 2023
WOC 655 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PASCOE
Appellant
AND: MS LARSEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
9 august 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $9,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascoe & Larsen (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an appeal from interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 February 2023. The primary judge made the following orders in relation to the parties’ child:
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for making decisions concerning [the child’s] health and any medical treatment she may require.
2. The father is to pay the mother’s costs of this Application on an indemnity basis.
The application before the primary judge was brought on urgently for hearing because the child faced impending medical and dental treatment about which the parties could not agree. Notwithstanding the short notice, each party had filed an affidavit in support of his or her position.
The mother has been diagnosed with a genetic disorder which involves the formation of abnormal connections between arteries and veins which can become enlarged and burst. This has led, for example, to the mother having had a number of strokes.
In December 2022, a general physician noted that the child had two skin telangiectasia and for two months had been suffering nose bleeds two to three times a week. The child was referred to a specialist haematologist.
In a report dated 8 February 2023, the haematologist said:
Considering the emergence of epistaxis, [the child] fulfils the Curacao criteria for the clinical diagnosis of [the genetic disorder] and would benefit from exclusion of deep organ involvement. This includes a contrast ECHO cardiogram with MRI or brain. She would also benefit from antibiotic prophylaxis during dental procedures until pulmonary AVMS are excluded (amoxicillin - less than 40mg recommend 40 - 50mg taken 2 hours prior to dental extraction).
(Mother’s affidavit filed on 21 February 2022, Annexure “B”)
At the time, the child faced significant dental work, possibly involving general anaesthesia.
The father did not agree with the proposed testing or the general anaesthesia.
In his affidavit, the father said:
[The mother] has not tested with a conclusive genetic test to [the genetic disorder]. Testing is unnecessary for [the child].
(Father’s affidavit filed on 24 February 2023, p.3)
The father’s case appeared to be that, as the condition was hereditary and since the mother had not been shown to have the relevant genetic cause, there was no need to test the child.
It is true, as recorded by the haematologist, that genotyping of the mother in 2016 did not identify a pathological mutation. That did not prevent the haematologist from describing the mother as having “a clinical phonotype of [the genetic disorder]” or making a positive diagnosis of the child.
The primary judge recorded the father’s opposition to the order sought in the following terms:
20.The father’s case, as I understand it, is that the mother does not have [the genetic disorder] because genetic tests have not found the gene, in her case, causing it. He concludes that [the child] ought not undergo further clinical testing because such tests are invasive and in his view unnecessary because, if the mother doesn’t have [the genetic disorder] then [the child] does not have [the genetic disorder]. As I understand it, he opposes any further assessment of [the child] in relation to [the genetic disorder] until genetic testing shows she has it.
21.But the father does not stop there. In addition to asserting that the mother does not have [the genetic disorder] at all, he suggests instead that the mother’s claims of suffering from [the genetic disorder] are a manifestation of the mother suffering from a very serious mental illness, Munchausen’s Syndrome. That is, I understand the father to be suggesting, the mother has fabricated or induced in herself symptoms of [the genetic disorder] which she does not in fact have. The father goes further, suggesting that the mother’s Munchausen’s Syndrome has developed into an even more serious mental illness, Munchausen’s Syndrome by Proxy. That is, the father suggests that the mother has intentionally fabricated or induced in [the child] symptoms that doctors might interpret as her suffering from [the genetic disorder].
His Honour reached the following conclusions:
23.The foundation of the father’s position appears to be misunderstanding. It appeared to me that he simply did not understand what the medical evidence, including evidence he himself relied upon, was saying. The father said that he suffered a number of reading or comprehension difficulties of written texts that may have contributed to misunderstanding on his part. But those difficulties do not explain the attitude taken by the father in this case. I spent a significant amount of time endeavouring to explain to the father exactly what the medical evidence said. I indicated how foolish his allegations that the mother suffered from Munchausen’s Syndrome, and Munchhausen’s Syndrome by Proxy, seemed in the absence of any evidence whatsoever to support them. My hope was that he might come to see his error and resile from his allegations – and that orders for [the child’s] treatment might be made by consent. Ultimately, he did not do so – and it did not appear to me to be the result of any reading or comprehension difficulty on the part of the father. When the medical evidence was laid out before him, and it was explained what it said and how it was contrary to the view he had taken, and how he had no evidence that supported his extraordinary alternative allegations for the mother’s actions, the father simply maintained that he was entitled to his opinion.
24.That is simply wrong. The father is not entitled to his opinion when it requires specialised knowledge and experience. He is not entitled in this court to rely upon his own ill-informed opinion concerning the necessary diagnostic criteria for [the genetic disorder] in defiance of the expert views of medical specialists. He is not entitled to rely upon his own similarly ill-informed view that the mother suffers a significant mental illness, through which he interprets her efforts to obtain appropriate medical treatment for [the child] as efforts to actually harm her. Those things require particular knowledge, experience and wisdom – none of which are displayed by the father in the proceedings today.
25.Given all those circumstances, I have no confidence that the father will engage in the process of making joint decisions for [the child], under equal shared parental responsibility, with anything like a rational or reasonable approach. The father says the problem is communication between himself and the mother. I consider that is likely to be true, but it must be remembered that it is the father who jumped to the conclusion that the mother has a serious mental illness, without any evidence at all to support that conclusion rather than accept the diagnosis of [Dr E], which seemed quite clear on the evidence available to the father. Even after the court spent time demonstrating to the father his misunderstanding of the evidence, he still maintained his right to express a different opinion. That augers ill for the likelihood that important decisions for [the child] will be made quickly and effectively if the parents are required to share equally parental responsibility. At this preliminary stage I consider equal shared parental responsibility in relation to medical decisions is not in [the child’s] best interests, and for present purposes the presumption in s 61DA of the Family Law Act 1975 (‘the Act’) is rebutted
26.In this case, I consider it to be in the best interests of [the child] for the mother to have sole parental responsibility for making medical decisions in relation to [the child] pending further order.
As to costs, after considering the relevant matters raised by s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), the primary judge said:
42.I consider the circumstances of the father’s resistance to the mother’s application to be extraordinary, not only failing to heed the clear medical advice provided, but also to go to the lengths of suggesting mental illness in the mother; and by virtue of that mental illness, a willingness to harm her child without any evidence whatsoever to support those assertions. I consider this to be an appropriate case in which to order that the father pay the mother’s costs assessed on an indemnity basis.
THE APPEAL
The father filed a Notice of Appeal on 22 March 2023. It raises 16 grounds of appeal, which are repetitious and involve significant overlapping. In his Summary of Argument filed on 10 May 2023, the father dealt with the grounds under six headings and it is convenient to follow the same course.
The father placed particular emphasis on his contentions as to procedural unfairness and bias. It is necessary to deal with those first as they go to the integrity of the trial process itself (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128).
Procedural Unfairness
The father submitted that he was denied procedural fairness because:
·He was only given 48 hours’ notice of the hearing;
·He thought it was a directions hearing and not a final hearing;
·The primary judge failed to apply the guidelines set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F: Litigants in Person Guidelines”);
·He was not offered the opportunity to obtain further evidence, submit a tender bundle or to identify the orders he was seeking and
·No allowance was made for his dyslexia.
It is important to say at the outset that although the Application in a Proceeding was filed on 21 February 2023, the father had, most commendably, filed an affidavit in response to which he had annexed a number of medical and dental reports. It is apparent from the transcript of the hearing that the primary judge was familiar with the content of the affidavits relied upon by both parties and the annexures.
After noting that the father had filed an affidavit (which otherwise would have been ordered) the primary judge asked the solicitor for the wife to make submissions. The solicitor was in the course of referring to the haematologist’s report when the following occurred:
HIS HONOUR: All right. Hang on a second. Sorry, I will get you to just stop there, and I will just have a look at that.
[SOLICITOR FOR THE WIFE]: Sorry. Yes.
HIS HONOUR: Have you got that, [addressing the father]? Have you got a copy of that report?
[THE FATHER]: I have the affidavit here. I’m just opening it, your Honour.
HIS HONOUR: Have you read the affidavit?
[THE FATHER]: Yes, I have, your Honour.
HIS HONOUR: Right. So you’ve read that report?
[THE FATHER]: Yes, I’ve read the report.
HIS HONOUR: All right. And do you say the report is incorrect?
[THE FATHER]: Your Honour, I haven’t refused - - -
HIS HONOUR: Hang on. I’m just saying, do you say the report is incorrect?
[THE FATHER]: May I have a moment to have another look at the document, please?
HIS HONOUR: Well, I assume you’ve read it. This is about the health of your child, …. You’ve opposed an application, based on this affidavit. I assume you’ve read all the material very carefully.
[THE FATHER]: Yes.
HIS HONOUR: And I simply ask the question whether you agree with what the – the opinion of the doctor or not.
[THE FATHER]: To answer your question, your Honour, I would like a couple of seconds to peruse the document, to refresh myself on its content.
HIS HONOUR: Yes, and I will repeat what I said. I would assume that should be fresh in your mind. This isn’t something that occurred weeks ago. This is a very recent development.
[THE FATHER]: Yes, your Honour.
HIS HONOUR: I have the strong concern, sir, that you have not carefully read this.
[THE FATHER]: I have carefully read it, your Honour, but the details, I would rather have them fresh in my mind in answering your question. If your Honour would give me a moment to address that, I would be happy to answer your question. I’m just looking for the document now, your Honour. But in answer to the question, I have not objected to - - -
HIS HONOUR: Sorry, I’m not asking that question. I’m asking the question, whether you disagree with the contents of this report? That’s the question. We will come to the other ones in a minute. I just want to know what I have to decide.
(Transcript 24 February 2023, p.3 line 31 to p.4 line 37)
Shortly afterwards, his Honour went directly to the issue at hand:
[THE FATHER]: My apologies, your Honour. I have read the document but I need to refresh myself with the details of it before answering your question.
HIS HONOUR: Yes. I don’t necessarily accept that. Now, do I understand your case, …, is that the mother does not suffer from [the genetic disorder]? Indeed, you suggest your diagnosis, that she suffers from Munchausen’s Syndrome and that she is extending that to Munchausen’s Syndrome by proxy towards the child. By that I understand you to be referring to the condition I think referred to in the DSM as factitious disorder imposed upon another.
[THE FATHER]: Yes, your Honour.
(Transcript 24 February 2023, p.5 lines 5–15)
Thus, the issue was squarely identified. Thereafter, the bulk of the transcript consists of the primary judge, in the words from the reasons:
23.… endeavouring to explain to the father exactly what the medical evidence said. I indicated how foolish his allegations that the mother suffered from Munchausen’s Syndrome, and Munchhausen’s Syndrome by Proxy, seemed in the absence of any evidence whatsoever to support them. …
In the course of that discussion, the father pointed to the failure of genotype testing to find a pathological mutation in the mother, and that until such a positive result was obtained, the child should not undergo the tests recommended by the haematologist. It must follow, inevitably, as his Honour identified, that the father did not accept that the mother suffered from the genetic disorder and thus disagreed with the haematologist.
Importantly, throughout this discussion, at no stage did the father complain that he was not ready to present his case, had not had the opportunity to marshal all the evidence on which he sought to rely, that he thought it was only a directions hearing or that he was otherwise at a loss as to how to proceed. He was able to articulate his position to the Court and identify his difficulties with the haematologist’s report and proffer a psychiatric explanation of the mother’s illness.
The matter was clearly urgent and was identified as such in the Application in a Proceeding as in the affidavit in support. The father filed an affidavit in response. There was nothing to suggest to the primary judge anything other than that both parties were ready to proceed.
It is therefore impossible to identify any procedural unfairness in the matter having proceeded as it did.
In Re F: Litigants in Person Guidelines, the Full Court identified the guidelines that should apply when hearing matters with litigants in person as follows:
253.Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.
1.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3.A judge should explain to the litigant in person any procedures relevant to the litigation;
4.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
9.Where the interests of justice and the circumstances of the case require it, a judge may:
•draw attention to the law applied by the Court in determining issues before it;
•question witnesses;
•identify applications or submissions which ought to be put to the Court;
•suggest procedural steps that may be taken by a party;
•clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
It can be seen that many of these guidelines are more apt to be applied to final hearings where witnesses are being called. The present application was a procedurally simple one with each party having filed an affidavit followed by oral submissions. It was immediately apparent that the primary judge had read the evidence and was asking the parties to articulate their cases.
The father gave no indication to the primary judge that he did not understand the procedure being followed or thought it was a directions hearing only. It was plain enough from the father’s affidavit that he was opposing the orders sought and that he had addressed what he considered to be relevant material.
Whilst it may have been beneficial for the primary judge to have explained, in certain terms, that he had read the evidence and was now going to hear submissions as to what orders should be made, the failure to do so does not amount to a breach of the guidelines or any procedural fairness.
The guidelines are not inflexible rules of conduct to be rigidly applied in all cases. Rather, their aim is to provide assistance to judges and litigants to afford procedural fairness so as to ensure a fair trial. It is only when a failure to apply the guidelines leads to a procedural unfairness and an unfair trial, that an injustice would arise that requires appellate intervention (Re F: Litigants in Person Guidelines at [230]; Forster & Forster [2016] FamCAFC 143 at [181]–[182]).
As I have explained, no such unfairness arises here.
I should also add that the bulk of the hearing consisted of the primary judge attempting to clarify the substance of the father’s submissions. His complaint that he was not able to do so because he was interrupted or talked over by the primary judge cannot be accepted. Whilst such an impression could be received by looking at the transcript alone, listening to the audio recording reveals significant pauses where the father either did not respond or failed to continue his responses before the primary judge spoke again.
Albeit in the context of costs, the primary judge referred at some length to the father’s dyslexia (at [36]–[38]). The costs reasons formed part of the ex tempore decision given on the substance of the matter. There is therefore no basis for thinking that his Honour did not take it into account in giving those reasons or, indeed, since his Honour was informed of it towards the end of the hearing (Transcript 24 February 2023, p.12 line 39).
The grounds asserting procedural unfairness are not made out.
Bias
The father’s submission did not endeavour to draw any distinction between actual bias and apprehended bias, yet they are quite different.
The test for actual bias requires the appellant to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[70]:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70. As Gleeson CJ and Gummow J observed in that case at [71]:
The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.
The test for apprehended bias is quite different. The question is whether a judge is disqualified by reason of the appearance of bias (which in the present case, was said to take the form of prejudgment) which is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide (Johnson v Johnson (2000) 201 CLR 488 at [12]).
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the Court added:
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Finally, whilst excessive intervention can lead to a finding of apprehended bias, such intervention may be such as to lead to procedural unfairness: Galea v Galea (1990) 19 NSWLR 263 at [281]–[282]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; Huda & Huda and Laham (2018) FLC 93-837.
Although these are each separate concepts and the inquiry about each must be kept separate (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33]), I shall deal with them after setting out the father’s contentions.
It is important to bear in mind that at the time of the conduct sought to be impugned by the father, his Honour had read the evidence and had received the bulk of the wife’s submissions. At such a stage a trial judge can be more robust in his or her approach. Regard too, must be had to the provisions of Pt VII, Div 12A in child related proceedings and especially
s 69ZN(4) which require the Court to “actively direct, control and manage the conduct of the proceedings”.
The father referred to the exchange quoted at [18] and to the following:
[THE FATHER]: My apologies, your Honour. I have read the document but I need to refresh myself with the details of it before answering your question.
HIS HONOUR: Yes. I don’t necessarily accept that. Now, do I understand your case, …, is that the mother does not suffer from [the genetic disorder]? Indeed, you suggest your diagnosis, that she suffers from Munchausen’s Syndrome and that she is extending that to Munchausen’s Syndrome by proxy towards the child. By that I understand you to be referring to the condition I think referred to in the DSM as factitious disorder imposed upon another.
[THE FATHER]: Yes, your Honour.
HIS HONOUR: So your view is the mother doesn’t have [the genetic disorder] and her assertion that the child has it is a fabrication as an extension of Munchausen’s Syndrome?
[THE FATHER]: Your Honour, I’m not an expert on Munchausen’s Syndrome and I .....
HIS HONOUR: Sir, is that your case? It seems to be what you’re saying in your affidavit.
[THE FATHER]: It is my concern, your Honour, yes.
(Transcript 24 February 2023, p.5 lines 5–26)
The father submitted that the questions as to whether he had read the report were leading. They were not as they did not suggest the answer.
The father continued to submit that this meant that he was not able to express that his concern was not with the report but with the information on which it was based.
This is somewhat ingenuous because in his affidavit the father disputed that the mother had the genetic disorder, that testing was therefore unnecessary for the child and that he had “concerns” as to Munchausen’s syndrome or Munchausen’s syndrome by proxy.
In the light of those considered assertions, it is surprising that the father was unable to answer the question as to whether he disagreed with the content of the haematologist’s report. As noted earlier, the audio recordings do not demonstrate that the primary judge talked over the father.
The question was a reasonable one to ask. Given that the father had prepared his affidavit recently it was somewhat unusual that he would need to read again before answering his Honour’s question.
The father then suggested the use of the word “diagnosis” in the above passage was intentionally used by the judge being a double-barrelled question to lead to the assumption that the father was making a diagnosis when all he was doing was expressing his concerns.
If the father genuinely considered that Munchausen’s syndrome was the basis of the child’s and mother’s difficulties then he is making a positive assertion to that effect whether or not it be labelled a “diagnosis”. If it was not genuine, it was mere posturing.
The suggestion made by the father and his refusal to accept the haematologist’s opinion suggest that the father was indeed putting forward the asserted psychological disorder as a genuine positive proposition.
In any event, the following makes the position clear:
[THE FATHER]: I refer to the documents that don’t show any genetic traces of [the genetic disorder]. That – I’m not arguing with that specialist .....
HIS HONOUR: Sir, this specialist says she has it. This specialist says she has it. Is that sufficiently clear?
[THE FATHER]: Yes, your Honour.
HIS HONOUR: And yet, in your affidavit, you allege she has a complex psychological condition. Set aside your inability to diagnose such a complex condition. And you say that her concerns about the child needing some assessment for this is not valid because she doesn’t have it; she’s making it up because she has Munchausen’s and this is an example of Munchausen’s by proxy. That’s your case, isn’t it?
[THE FATHER]: More or less, your Honour.
HIS HONOUR: Right. So you are saying this doctor is wrong because you said that after you read this. So you must be disagreeing with this specialist’s opinion, [Dr E].
[THE FATHER]: My only – my basis for this is the genetic testing, your Honour, which has come up negative on several occasions
…
HIS HONOUR: Not only are you opposing it, you are making an enormously serious allegation of mental illness against the mother. You’re saying she is so mentally ill that she wishes to fabricate an illness in her daughter.
[THE FATHER]: Yes, I am, your Honour.
HIS HONOUR: These specialists have a different view.
(Transcript 24 February 2023, p.6 lines 5–27 and p.7 lines 1–7)
I do not accept that the father was bullied or tricked into these answers. The phrase “[i]t is my concern” cannot be used as a cover for the making of serious allegations and his Honour was fully entitled to know precisely the nature of the father’s contentions (Transcript 24 February 2023, p.5 line 26).
The father also complained about the following:
HIS HONOUR: Sir, if what you’re saying is that each time you dispute something that has got to come back to me, I won’t find that a satisfactory solution. This is your chance to convince me that I shouldn’t make an order that the mother have sole parental responsibility in relation to medical things.
[THE FATHER]: Yes.
HIS HONOUR: I consider your approach to be irrational, has no factual foundation. It jumps to enormous conclusions. It irrationally denies a diagnosis made by a specialist medical practitioner who has a professorship. So I can’t trust your decision making in the future as things stand.
[THE FATHER]: Well, I will be more attentive and more open to these, even if they’re not – I may express my view that I’m not happy with it but I will allow for further testing to continue.
HIS HONOUR: Is that all you have to say in terms of – you seem to be reluctant.
[THE FATHER]: I still have a question about the existence of [the genetic disorder]. I know that the specialists, who know much more than me, have said that that is the case. It is a – I have to be honest and say that it is a concern for me that this is partly divisive. I think it would be much easier if communication weren’t so strained with myself and the mother, to be able to communicate about these things. But I do see your point, your Honour, and I do understand that it - - -
(Transcript 24 February 2023, p.10 lines 19–42)
Here, his Honour was squarely giving the father the opportunity to address the questions of parental responsibility. He does so in terms that could be described as “critical, strong and candid, they may have been, but excessively so they were not” – to borrow from the words of Callinan J in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [180].
Taking the evidence as a whole, there is an inevitable outcome in this matter. On the one hand, there is the expert opinion of the haematologist, supported by the mother’s years of treatment for the genetic disorder. On the other hand there is the father’s mistaken belief that the genetic disorder can only be diagnosed by genotype testing (as explained by his Honour at [18]–[20]) coupled with his unsupported assertion that the mother’s and the child’s condition were the result of Munchhausen’s syndrome by proxy, a severe and rare mental disorder. The father did not attempt to explain how the mother’s and the child’s physical symptoms arose.
A critical and candid approach was not unwarranted.
The audio recording demonstrates that the primary judge was not angry, did not raise his voice and did not have an intimidating tone. His Honour spoke clearly, firmly but politely on occasions, but he did not talk over or interrupt the father.
It is to be recalled that this was a case where, on the one hand, there was abundant medical evidence, and on the other, a refusal to accept it coupled with a suggestion that the mother had a serious psychological disorder. The primary judge was entitled to explore that position and indeed, was obliged to do so. Given the nature of the issues raised by the father, it is not surprising that this was done fairly bluntly.
I am quite unable to conclude that the primary judge was actually biased. His Honour was faced with a strong medical opinion, given a diagnosis and proposed course to be followed. On the other hand the father raised “concerns” as to the mother’s mental health. Such concerns are not evidence. Thus, the evidence went only one way. There was no reason not to accept it.
I do not see that in directly and further confronting the father, with the manifest difficulties in his position after having read the evidence, displays bias. That is so when the reasons are taken into account, as they may be for both actual and apprehended bias.
The primary judge, as his Honour himself said, spent “a significant amount of time” (at [23]) endeavouring to explain to the father exactly what the medical evidence said. Two reasons were given for doing so. One was to attempt to remedy any difficulties by the father in reading or comprehension of written texts that may have led to a misunderstanding on his part. The second was to attempt to persuade the father to resile from his position so that orders could be made by consent, thus obviating the need for orders for parental responsibility.
These lofty aims do not demonstrate bias or apprehended bias. The primary judge had considered and evaluated the evidence and formed a view based on it. That is the quintessential task of a judge – to decide between competing contentions. Doing so after hearing the evidence and much of the submissions does not demonstrate any appearance of prejudgment or disinclination to deal with the merits of the application. That is particularly so in the circumstances where the medical evidence went just one way.
For the reasons given earlier, there was no excessive or improper intervention by his Honour.
These grounds do not succeed.
Challenge to factual findings
The father submitted that in the course of submissions the primary judge made the following factual errors:
·The father had not made a diagnosis of a psychological disorder of the mother, but merely raised concerns;
·Asserted that the father called the mother “crazy” and
·Ignored the father’s evidence that he had not refused the child seeing doctors or specialists.
It is, of course, the findings as expressed in the reasons that count. Questions asked during submissions are not findings of fact.
I have already discussed the father’s distinction between a diagnosis and raising concerns, which I regard as specious. In any event, as quoted earlier, the father agreed with the primary judge that he had made a diagnosis (Transcript 24 February 2023, p.5 lines 5–18).
Towards the end of submissions his Honour said:
HIS HONOUR: You read that in the material and yet, despite all of our discussions this morning, my giving you the opportunity to recant, to step back, but you read that and you say, “She doesn’t have [the genetic disorder]. She’s crazy. And what’s more, she’s trying to impose her craziness on our child by creating an illness the child doesn’t have”. Well, I’ve heard what you’ve said, sir. Tell me what else you want to tell me.
(Transcript 24 February 2023, p.11 lines 4–8)
They were his Honour’s words, using a colloquial word to describe the condition asserted by the father. In the reasons it was described as “a very serious mental illness” without demur from the father (at [21]). It is a question of pure semantics, not substance, as to whether “crazy” is apt. In any event, whatever the outcome on that point, it is entirely immaterial to the outcome.
Whether or not the father had consented to earlier medical treatment was not to the point. The parties were in fundamental disagreement to the testing for the genetic disorder and aspects of the proposed dental treatment (for example, the general anaesthesia).
There is no substance in this ground.
The best interests of the child
Are the orders in the child’s best interest?
The father’s contention was that the child would be in danger and at risk when in his care because he would be in breach of the orders if he organised medical care, even urgent care. That misunderstands the effect of the order for sole parental responsibility and the obligations of any carer to seek necessary urgent medical treatment for the child in their care, and of course, informing the person with parental responsibility as soon as possible.
The fact that the orders did not conform to the recommendations of the Family Consultant – even if that is so (the report was not referred to at the hearing and was not part of the appeal book), does not demonstrate the orders are not in the child’s best interests. Much might depend on whether the Family Consultant was aware of the medical issue when the report was delivered.
These grounds do not succeed.
The audio recordings
There is nothing to be added to the discussion that appears throughout these reasons.
The appeal will be dismissed.
The costs order
The submission of the father appears to be that he has a meagre income, cannot afford to pay costs and that the order against him exacerbates his already excessive financial strain.
The primary judge discussed the father’s impecuniosity at [30] and expressly took it into account at [41].
It is well-established that that is an appropriate course to follow.
In Northern Territory v Sangare (2019) 265 CLR 164, the Court said:
27.…The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant‑in‑person.
That has long been the position of this Court – see for example, Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Elias & Elias (No. 2) [2019] FamCAFC 92 at [14]; Mallory & Mallory [2020] FamCAFC 62 at [9].
Thus no error has been shown.
I would add given the substance of the father’s response to the application, the order for the payment of indemnity costs could not be regarded as unreasonable or plainly wrong.
It follows that the appeal will be dismissed.
COSTS OF THE APPEAL
The appeal was wholly unsuccessful. The father said in opposition to a costs order that he was on Austudy benefits, had no property and had recently been given a grant of legal aid.
I accept that to be so, but as just discussed, that is not a bar to a costs order being made.
Taking into account these matters, the appropriate order in all of the circumstances is that the father pay the mother’s costs fixed in the sum of $9,900.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 9 August 2023
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