PENRICE & HORTON

[2014] FamCAFC 72

FAMILY COURT OF AUSTRALIA

PENRICE & HORTON [2014] FamCAFC 72

FAMILY LAW – APPEAL – whether the Federal Magistrate erred in fact – where the Federal Magistrate did not err in fact.

FAMILY LAW – APPEAL – Leave to reopen for the purpose of making further submissions – where the party is self-represented - where leave to reopen is granted.

FAMILY LAW – COSTS – where the appellant is wholly unsuccessful – where the respondent did not participate – where both parties were self represented – where there is no order for costs.

Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Champness & Hanson (2009) FLC 93-407
De Winter and De Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Vakauta v Kelly (1989) 167 CLR 568
Whisler & Whisler [2010] FamCAFC 18
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447

APPELLANT: Mr Penrice

RESPONDENT: Ms Horton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1634 of 2009

APPEAL NUMBER: SOA 47 of 2012

DATE DELIVERED: 1 May 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Faulks DCJ, Ainslie-Wallace &
Bennett JJ

HEARING DATES: 15 October 2013

6 March 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 18 May 2012

LOWER COURT MNC: [2012] FMCAfam 456

REPRESENTATION

COUNSEL FOR THE APPELLANT:	In person
COUNSEL FOR THE RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not applicable

Orders

1. Grant leave to husband to re-open the Appeal for the purpose of making further submissions.

2. The Amended Notice of Appeal filed 6 August 2013 be dismissed.

3. The oral application for leave to adduce further evidence be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Penrice & Horton 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 MELBOURNE

Appeal Number: SOA 47 of 2012
File Number: MLC 1634 of 2009

Mr Penrice

Appellant

And

Ms Horton

Respondent

REASONS FOR JUDGMENT

1. On 18 May 2012 Federal Magistrate McGuire (as he then was) made final parenting orders in relation to two children then aged 15 years and 12 and a half years. The orders provided that the mother have sole parental responsibility and the children live with her and spend time with the father regularly in block periods to coincide with school holiday or long weekends.  The father appeals the orders. The mother opposed the appeal and seeks to maintain the Federal Magistrate’s orders.  She made no submissions on the appeal.  An Independent Children's Lawyer appeared in the trial. She did not appear on the appeal.

BACKGROUND

1. We understand the following background to be uncontentious.

2. The parties married in 1992 and separated in April 2008.  There are three children of the marriage. The children have lived with the mother since separation. Ultimately, the orders of the Federal Magistrate only related to the younger two children. The eldest child turned 18 years of age in 2012, a few weeks before the decision under appeal was delivered. The eldest child was and remains estranged from her father.

3. At the time of separation the parties were living in Queensland. The mother relocated back to Central Victoria to be close to her family and later moved to Northern Victoria. The father lives in Melbourne.

4. The father commenced proceedings in February 2009. At the time of hearing, the children were living with the mother pursuant to orders which were made by consent several days into a final hearing in October 2009. Two family reports had been prepared by Mr H a social worker. Mr H facilitated negotiation between the parties on 15 September 2009 and the parties reached an agreement. They sought to have final orders reflecting their agreement made by consent. Mr H’s report of 24 September 2009 endorsed the settlement arrived at by the parents.

5. The Federal Magistrate made final parenting orders in those proceedings on 16 October 2009 which provided for the children to live with the mother in Northern Victoria and for the younger children, then aged 12 years old and nine years old, to spend time with the father on alternate weekends from Fridays to Sundays and for half of all school holidays.

6. On 30 August 2010 the father brought further proceedings that were heard by the Federal Magistrate over 11 days commencing on 29 June 2011 and concluding on 10 February 2012. 

7. Throughout that hearing with which this appeal is concerned, the mother was represented by a barrister, Mr Allen and the Independent Children’s Lawyer was represented by a barrister, Ms Dowler. Mr Mort, barrister, instructed by

   
   

   Mr Harriss, solicitor, appeared on behalf of the father on 29 and 30 June, 1 July 2011, 4 and 5 August 2011. Mr Harriss, appeared for the father for the remaining six days of the trial.

8. At the trial both parents sought orders for the children to live with them. The father also sought that the children not spend any time with the mother for a period of some months. The proposal of the Independent Children’s Lawyer was for the mother to have sole parental responsibility, for the children to live with the mother and for the children to spend time with the father for one weekend every four weeks and for half of the school holidays.

9. The Federal Magistrate had the benefit of a third family report of Mr H dated 17 September 2010 as well as his two earlier reports and a psychiatric assessment of each of the parties dated 7 July 2009 prepared by Dr E. Both experts gave oral evidence at the hearing.

10. The orders from which the father now appeals were made on 18 May 2012. The final orders provide for the mother to have sole parental responsibility for the younger children and for the children to live with her. The orders provide for the children to spend time with their father for half of every school holidays as well as on one weekend during each school term and telephone contact on Tuesday and Thursday evenings.

The Federal Magistrate’s reasons

1. The Federal Magistrate began his reasons with a brief history of the matter, including the circumstances that surrounded the earlier final hearing as already mentioned, which culminated in final consent orders made on 16 October 2009. The Federal Magistrate observed at [8] that the issues with which the family presented to the court in 2009 were “effectively the same” as the issues upon which he was required to make the determination in 2012. His Honour identified the following issues:

   ·The mother’s claim that the children were reluctant to spend time with the father;

   ·The father’s claim that the mother did not facilitate and encourage the children’s time with him and, in fact, actively worked against that happening;

   ·the father’s claim that the mother suffers from an emotional illness, perhaps stemming from her admitted anorexia as an adolescent and which impacts on the mother’s ability to permit the children to go to their father; and

   ·The mother’s claim that the father perpetrated domestic violence on her during the marriage in the presence of the children, and to the children, and hence their reluctance to have a relationship with him.  She particularises that violence as being physical and emotional.

2. In the context of the 2012 hearing, the Federal Magistrate described the impact of the 2009 orders:

   11.Those orders have been profoundly unsuccessful in providing an end to the dispute between the parties and any form of stable order and routine in these children’s lives. Certainly, the issues set out above have remained alive and regularly agitated between the parties. The children have habitually not attended with the father for time.  [The father] alleges some 100 plus breaches of the orders by the mother. Victoria Police have been involved on numerous occasions. There has been alleged violence perpetrated on the children by the father. He denies the allegation…

3. The Federal Magistrate then discussed evidence of text message communication over a period from October 2010 to May 2011. The impact and significance of the texts only became apparent during cross-examination of the mother and on his Honour asking a question. It became apparent that several text messages, which were transcribed in the father’s affidavit as material taken by him from the mobile telephone of one of the children, [the son], were actually between the child and an adult male teacher. The male teacher, who was known throughout the Federal Magistrate’s reasons for judgment as “DP”, was the principal of a private school which the child had attended. 

4. The father subsequently provided the Independent Children’s Lawyer, the mother and the court with two large folders of further text messages between the child and DP that had not before been disclosed. His Honour observed:

   16.…The messages on occasions numbered many on any particular day and had been sent from early morning until late at night. These messages provided, numbered in the many hundreds and were over a period of some seven months from October 2010 until about May 2011. This evidence had not been provided to the Independent Children’s Lawyer or solicitors for the mother. The messages had, however, been in the possession of the father since well prior to the commencement of the trial as they were, in fact, included in part in his trial affidavit. After their existence became known, the two folders of text communications were put into evidence by consent and the matter was stood over to allow Counsel to consider their effect and probity in relation to the cases of both the mother and the father.

5. At the request of the Independent Children's Lawyer his Honour gave leave to issue a subpoena to have DP attend court and give evidence.  DP attended court and gave evidence.  As his Honour commented:

   19.The advent of this evidence resulted in further extensive

   
   

   cross-examination of the mother and the recalling of the father to the witness box to give further evidence in-chief and be cross-examined and the trial was lengthened accordingly.

6. His Honour observed at [25] that “many of the communications are of an intimate nature although rarely explicit”. His Honour described some issues around the text messages as follows:

   18.The prima facie concerns in respect of these text communications included the following:

   a)Was [the son] engaged in or being groomed for an improper relationship with this adult?

   b)The relevance of the father being in possession of these text communications for a considerable time prior to the trial and not having disclosed them to the Court, the Independent Children’s Lawyer or the mother’s solicitors?

   c)The relevance in respect of the mother’s parenting capacity of [the son] being in her primary care whilst such text communications were continuing over many months and her understanding of the relationship between [the son] and DP together with her appropriate acknowledgments and responses or otherwise?

7. His Honour found at [28] on the balance of probabilities that DP was grooming the child for an improper relationship. An interim injunction was made directed at preventing the child from coming into contact with DP. A similar injunction was incorporated as paragraph 13 of the Federal Magistrate’s final order. His Honour directed the Registrar of the court to forward the reasons for decision and relevant parts of the evidence to the appropriate authorities for any investigation or action against DP.

8. The timing of the father’s disclosure of the volumes of further text messages was the subject of evidence at the trial. The father sought to justify his actions, in particular, his delayed production of the texts between the child and DP. Ultimately, his Honour was critical of the father’s conduct in relation to the text messages because, in failing to alert everyone else to the potential danger which DP posed, the child had been permitted to continue to associate with DP. His Honour was satisfied that the father had elected to withhold evidence from the mother and the Independent Children’s Lawyer because the father placed more weight on the potential for not alienating his son in preference to protecting the child from exposure to DP. We will discuss the evidence and his Honour’s findings in detail later in these reasons in the context of the father’s grounds of appeal 1(o), 1(p) and 1(q).

9. His Honour considered the primary considerations in s 60CC(2)(a) and (b)and said:

   75.The findings, one way or the other, in respect of the serious allegations of domestic violence are therefore critical to the course of consideration in respect of the nature of the children’s relationship with the father and the capacity of both parents to facilitate any relationship between the children and the father and ultimately any explanation for the dysfunctional relationship to date between the children and the father together with the orders I ultimately determine as being in the children’s best interests. Any findings of fact must be based on a weighing of the evidence before me.

10. Within the context of s 60CC(2)(b), his Honour concluded:

    79.The serious allegations of domestic violence are important because positive findings give a reason, if not an excuse, for the difficult relationship between the children and their father, the alignments of the children with the mother, and Ms [Horton’]s aggressively negative attitude towards Mr [Penrice].

    80.After consideration of the evidence and on the balance of probabilities, I prefer the evidence of Ms [Horton] in respect of this issue. Her evidence has been consistent in this Court and in her portrayals to the experts. She withstood what was at times vigorous and intrusive cross-examination. The statements made by her at marriage counselling which took place well before these proceedings exclude any suggestion of recent invention. Her evidence has been graphic, detailed and particularised.

    81.It is true that the husband has consistently maintained his blanket denials of the allegations of violence put to him. It is true that there is little or no corroborating empirical evidence of the Ms [Horton’s] allegations such as contemporaneous complaints or doctor’s reports. However, I note Ms [Horton’s] evidence that she was reluctant to expose issues of domestic violence within what was a continuing marriage and that this is not an unusual aspect of domestic violence within a relationship. She did of course make a disclosure to the marriage counsellor. There is, however, some corroboration of Ms [Horton’s] allegations from Mr [Penrice] himself. He volunteered the fact that he has “still image” thoughts of the specific incidents alleged by Ms [Horton]. He claims these to be “false” memories rather “repressed memories”. Frankly, he is perhaps not qualified to make the distinction and it is unfortunate that there was no psychiatric evidence before me to do so due to Mr [Penrice] not appraising psychiatrist Dr [E] of these “images”. It is put to me by Mr Allen of Counsel for the mother that it does Mr [Penrice] no credit in failing to raise these “images” with Dr [E] when Mr [Penrice’s] own chronology given to the Court is that they were occurring well before the interviews with the psychiatrist. Significantly he told Dr [E] that he “had no recall” of the incident’s alleged. I am troubled as to why he was not completely and fully candid with Dr [E]. I find this omission by Mr [Penrice] evidence to be persuasive and corroborative of Ms [Horton’s] version of events.

    82.There are other factors which influence my findings. Mr [Penrice] concedes heavy use or abuse of alcohol at various stages of the relationship. Ms [Horton’s] evidence suggests a frequent correlation between this fact and the incidents of domestic violence. He admits to loss of his license for a “fairly high” reading. He uses the colloquialism “bender”.

    83.The interviews by Mr [H] of the children are corroborating and although technically hearsay, I am able to consider and attribute weight given the exceptions to the rule in the Act and particularly s.69ZT.

    84.In paragraphs 21 and 22 of his first report Mr H quotes [the eldest daughter] as follows:

    [The eldest daughter] explained that she had forgotten many of the things that her father had done in an attempt to block out his alleged abusive behaviour. She discussed her father picking her up late from school and yelling and screaming at her on a regular basis. [The eldest daughter] described feeling ignored and undervalued in the relationship with her father who she experiences as overbearing, loud and intimidating. She saw herself as sticking up to her father while [the son] and [the younger daughter] were more compliant.

    While she could not remember much that was specific to her own experience she describes her father controlling the finances of the family and belittling her mother on a regular basis. [The eldest daughter] describes her father drinking heavily and going “mental” and felt that he had never hurt the children because of their mother’s protection. [The eldest daughter] was of the opinion that her father abusively controlled most aspects of her mother’s life and never let her have ideas or opinions.

    85.Interviews with [the younger children] disclose generally of the parents fighting and arguing.

    86.Consequently, considering and balancing all of the relevant evidence and with the advantages of seeing and hearing the parties cross-examined, I am satisfied on the balance of probabilities that there was the domestic violence in the relationship between the parents as particularised by Ms [Horton] and am satisfied that Ms [Horton] was assaulted as she alleges.

11. His Honour found at [114] that:

    (i)That the mother was the victim of domestic violence at the hands of the father during the marriage and that her reactions and responses to this situation have been exacerbated by her pre-existing fragile mental/emotional health issues stemming from her adolescence.

    (ii)That the mother has been the primary carer of [the children] and that the relationship between the children and their mother is established, bonded and mutually supportive;

    (iii)That the mother has deliberately, blatantly, and for her own ends actively discouraged and participated in the failure of a consistent relationship between the children and their father. She has consistently and knowingly breached Court orders. She has colluded and conspired with the children and other persons to thwart Court orders and the children’s relationship with the father. I am able to find that there is little scope or hope that the mother will in the future be able to encourage and facilitate the children in a relationship with their father. I accept that the mother’s behaviour is influenced by her personal experiences within the relationship with the father. This does not however excuse her;

    (iv)That the children have consistently and regularly been reluctant to go to the father to spend time with him. They have placed themselves in danger in going to extreme lengths to avoid their father and have on occasions done so in conspiracy with the mother and persons known to the mother. Their reluctance has on occasion been manifested in violent reaction to the father. I am satisfied that a number of factors including the mother’s interference, the father’s own style of parenting and the difficulties of distance and frequency of onerous travel have contributed to the children’s reluctance;

    (v)In all aspects of their lives other than their relationship with
    Mr [Penrice], the children are relatively stable, successful and adjusted;

    (vi)       I am satisfied that the children do not wish to live with their father;

    (vii)That the father in retaining text communications between his son and DP for a number of months has shown a lack of insight and an inability to fundamentally protect young children. His ability to prioritise children’s needs is impeached as is his general capacity and attitude to the responsibilities of parenthood;

    (viii)That the mother’s reaction and response to the relationship between DP and [the son] is lacking in judgment and insight;

    (ix)That the relationship between DP and [the son] was, on the balance of probabilities, one of the adult “grooming” the child and I am satisfied that permanent injunctive orders should be made to protect the child and particularly given the concerns in respect of the parent’s insight; and

    (x)That any change in the children’s living arrangements will be exacerbated by the untrusting, non-communicative and combative relationship between the parents and any adjustment for the children therefore be fraught with difficulty.

1. The Federal Magistrate found at [118] that the sole factor in favour of changing the children’s residence to the father’s household was “the mother’s participation and involvement in sabotaging any relationship between children and father”. He continued and identified the following circumstances as contra-indications to a change of the children’s residence:

   (i)The children are otherwise successful in their schooling, their relationships, and their social lives. That is, there is no indication that the dysfunctional relationship with their father is manifested in any of their other relationships, at least at this stage;

   (ii)[The children] are not young children. [The son] is soon to be 15 years of age. [The youngest daughter] is now 11 years old. They are forceful in articulating that they do not wish to live with their father;

   (iii)The Court has residual concerns as to the capacity of the father to deal with the children’s adjustment in such a dramatic change;

   (iv)There are concerns as to the children’s ability to adjust to the father’s parenting style and being removed from their mother, their schools and their peer group relationships in [Northern Victoria]; and

   (v)There are concerns on the evidence as to the capacity and attitude of the father highlighted by his retaining of text messages between DP and his son which he now admits caused his son to be placed in danger of abuse from this man. It follows that Mr [Penrice’s] capacity to solely parent these two children is not so much unknown as it is compromised by his decisions and judgments around this issue.

2. His Honour concluded that:

   119.After much consideration and on balance I am of the view that the children’s best interests are served by them remaining with their mother in [Northern Victoria]. Such a determination should in no way be seen as this Court endorsing or giving sanction to the mother’s behaviour in deliberately thwarting the children’s relationship with their father. Whilst the peculiar and dysfunctional dynamics within this family seem now to be entrenched, the mother’s obligation at law and as primary parent of these children remains firmly, unequivocally, and unambiguously to facilitate and encourage the children’s relationship with their father. It is a positive rather than passive obligation. That obligation remains and indeed may become more onerous as the children become older and capable of independent thought. It is not however for children to be the authors and determiners of their own destinies and particularly so where these children have endured the influences, personality traits, and lengthy litigation of their two parents. The ages of these children and their own personalities may make Ms [Horton’s] job more difficult but it does not alleviate her of this important parental responsibility. …

3. Neither parent escaped significant criticism by his Honour. His Honour was critical of the mother for not facilitating and encouraging the children’s relationship with their father. His Honour stated at [119] “I can put it no higher than simply to emphasise that she has failed as a parent in this regard thus far.”

4. Later in his reasons, his Honour considered how to formulate orders for the children to spend time with the father and said:

   120.It remains for me to make orders for a regime of time for [the children] with their father in the hope that the few remaining years of their minority will allow for a successful relationship between children and father. I stress, however, and on the evidence before me, it is incumbent on Mr [Penrice] to address his failings. Firstly, he must acknowledge those failings. The experts in this matter have diagnosed and described his personality traits. He should understand that the mere making of a Court order does not create a relationship between a child and a parent. They provide only the framework. He must develop insight and understanding of his children’s own personalities and their needs. He may need to be flexible and less suspicious (although the mother’s behaviour has given him reason for his lack of trust). He needs to empathise with and enjoy his children rather than documenting their every move.

   121.There are in my view a number of factors within the current time-with regime that have contributed to its downfall. The distance between [Northern Victoria] and Melbourne and the onerous travel for the children on a fortnightly basis can become prohibitive of successful time for them with their father. I accept that they are reluctant to endure this regular travel and this reluctance is independent of their mother’s influence. Similarly, the limited Monday time with the father in [Northern Victoria] has been unsuccessful. Its detriments far outweigh its benefits. There is little time for the children to settle. Inevitably they have other activities and interests which conflict with their time with Mr [Penrice]. The mother’s attitude impacts on time and hence the opportunity for conflict between father and children is increased.

   122.The Courts and the experts who assist them have long emphasised that successful relationships are built on quality of time rather than quantity. Whilst it is true that regularity and frequency are important for infants and young children in developing a bond with a parent, the ability to settle into a parent’s home and to balance obligations to a parent with the preferences and plethora of other tempting options for a teenager must be balanced. It is not the role of this Court to make theoretical optimal orders which are set up to fail. This Court does not operate within the world of the “ideal”. Rather, we are often confronted with a multitude of negative circumstances and hindrances to successful relationships which must be balanced and addressed in determining the best, not “ideal”, interests of children within their own particular and peculiar circumstances.

The Appeal

1. The father filed a notice of appeal on 15 June 2012. He then filed an amended notice of appeal on 6 August 2013. The amended notice raises two grounds of appeal, each with numerous sub paragraphs.

2. The father filed a summary of argument on 6 August 2013. The Regional Appeals Registrar sent a letter to him advising that the summary did not comply with r 22.22 of the Family Law Rules 2004 (Cth) (“the rules”) as it did not list each ground of appeal with a statement of argument setting out the points of law or fact and the authorities relied on for each ground. Further, the summary of argument was 73 pages in length which exceeds the 10 pages specified in the rules.

3. The father did not subsequently file a further or amended summary of argument so as to comply with the rules or seek to do so at the hearing of the appeal. With one exception, in relation to further evidence which we will come to shortly, the father was content that we have regard to his extensive summary of argument and confine himself to making short oral submissions before us.

4. Notwithstanding the length and detail of the father’s summary of argument, the father made no apparent effort to link his arguments to his grounds of appeal.  The document is discursive and opaque. It provides scant assistance in considering the grounds of appeal. We will consider the grounds and submissions at large and do the best we can. Where appropriate, we will group the grounds and deal with them together. That said, however, it appears that nearly all of the father’s grounds are based on a single common contention, that is, that his Honour did not accept the father’s view of the evidence.

Application to adduce further evidence

1. Although he filed no application seeking leave to adduce further evidence in the appeal, the father indicated during the hearing of the appeal on 15 October 2013 that there were documents to which he wished to refer and said, referring to his summary:

   It refers to a couple of other documents that are on the court file. It also refers to some documents that are currently not submitted to the court---that provide definitive evidence to refute the inferences---. 

   (Transcript of 15 October 2013 page 2 line 45)

2. The father said that his summary contained argument on why these documents ought be accepted in the appeal (Transcript of 15 October 2013 page 3 line 28).

3. The father made submissions on the evidence that he wished to adduce on the appeal.  In the course of those submissions he was referred to the relevant authority and a copy of CDJ v VAJ (1998) 197 CLR 172 given to him.

4. After the appeal concluded and before the delivery of judgment, on

   
   

   6 December 2013 the father filed an application in an appeal seeking to reopen the appeal to permit him to make further submissions on the issue of the further evidence, having had the opportunity of considering CDJ.  The father’s application was supported by two affidavits sworn by him on 29 November 2013.  To one of those affidavits he annexed the evidence sought to be adduced in the appeal and in it provided an explanation as to the relevance of the documents.  The affidavit also included evidence not referred to on 15 October 2013.  The other affidavit contained his submissions on CDJ.  The evidence sought to be adduced on the appeal and not before mentioned was a CD copy of an audio file of a contact change-over that occurred on 18 July 2009.

5. Although the application in an appeal was listed for hearing on 6 March 2014, in fact the appeal was reopened and on 6 March 2014 the father made further submissions on the oral application to adduce further evidence.

6. There were three broad categories of documents to which the father’s application to adduce further evidence referred:

   1.Material that the father’s counsel sought to tender into evidence but which was rejected by the Federal Magistrate.

   i)        Extracts from material produced on subpoena by Telstra;

   ii)       A CD copy of audio file recorded 27 September 2010.

   2.Material that was available at the trial but not tendered or relied upon in the proceedings.

   i)    Extracts from Victoria Police records produced on subpoena on

   
              

   18 May 2009;

   ii)       Letter from Mr Harriss (the father’s solicitor) to Dr E    dated 3           July 2009;

   iii)     Email correspondence between Mr Harriss (the father’s solicitor)        and the father dated 3 July 2009;

   iv)       Email from the father to Mr Harriss (the father’s solicitor) dated          24 March 2009;

   v)       Email from the father to Mr Harriss (the father’s solicitor) dated          31 March 2009;

   vi)      Email from the father to Sergeant C of Victoria Police,   a business      card and notes; and

   vii)     Subpoenaed medical records of the mother.

   3.Material prepared for earlier proceedings but not filed in or relied on in the hearing before the Federal Magistrate.

   i)Affidavit of the father sworn 19 May 2009;

   ii)Affidavit of Mr M (the mother’s brother) sworn 17 May 2009; and

   iii)Extract of transcript of proceedings before the Federal Magistrate on 10 September 2009.

7. The capacity of the Full Court to receive further evidence is constrained.  In CDJ v VAJ (1998) 197 CLR 172 the High Court set out the principles relating to the admission of further evidence. The plurality, McHugh, Gummow and Callinan JJ said:

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

   …

   111.…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. (footnote omitted)

   114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.

   115. Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.

   116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.

Material sought to be tendered but rejected by the Federal Magistrate

1. The documents which fall into this first category are an extract from Telstra records and a CD copy of an audio file recorded 27 September 2010.

2. None of the grounds of appeal is directed to his Honour’s refusal to admit this evidence at first instance. 

Telstra records

1. In relation to the Telstra records, the father’s written submissions refer to cross-examination by the mother’s counsel during the trial on the subject of the text messages sent to the child by DP.  It seems that in one text message DP asked the child “What you dislike most about him”, referring to the father.  The father contended that it was suggested that when providing written copies of the text messages passing between the child and DP, he did not include the child’s response to this text and, the father contends it was suggested that he had thus withheld that evidence.  The father said that the Telstra records show that the child did not reply to DP’s text message thus all text messages were tendered to the court, and no evidence was withheld from the court.

2. The document comprises three pages referring to two telephone numbers, times and dates.  The dates run from 30 March 2011 to 4 April 2011.  There is no explanation or legend to assist the understanding of the document and, without some form of explanation we are unable to say whether they do or do not support the purpose for which the father contends.

Audio recording

1. We have no information about what the CD recording made on 27 September 2010 concerns or to what issue its contents relates. It is thus impossible to determine what effect it could have had on the outcome before the Federal Magistrate had it been admitted into evidence before him.

2. Neither of these documents is such that it may be admitted as evidence on the appeal. They do not speak to any of the categories of documents to which CDJ refers.

3. Thus we do not propose to accept the documents, the tender of which was rejected by the Federal Magistrate, as being capable of being admitted as evidence in the appeal.

Material that was available at the trial but not tendered or relied upon in the proceedings.

1. The documents in this category are the emails and correspondence from the father’s solicitor to various people; from the father to his solicitor and from the father to a member of Victoria Police, Sergeant C. It also relates to documents produced by the Victorian Police on subpoena. None of this correspondence was in evidence before the Federal Magistrate. The father submitted that it is material which could assist this court in its “search for the truth”.

Father’s contact with Sergeant C

1. In his affidavit of 29 November 2013 the father refers to an attendance by him at the police station where he spoke to officers about the text messages sent to his son by DP.  He asserts that on 8 August 2011 he took photographs of the text messages on his son’s phone and spoke to police officers who said that they would refer him to the Sexual Offences and Child Abuse Unit.  On 18 August 2011 he spoke to an officer from that unit.  The father said: “I…emailed her a summary of the text messages. We exchanged several emails over the next few days and I later hand delivered to her a full copy of the photographs”. 

2. The documents in relation to this incident that the father wishes to adduce in the appeal are “the business card given to me by the Melbourne SOCA unit officers on 8 August 2011” and “the email chain between myself and SGT [C]”. 

3. The email correspondence commences with an email from the father to Sergeant C to which the father attaches a spread sheet of the text messages and in which he indicates that he has photographs of all of the texts and will hand deliver the 532 pages of them to her.  He requests the officer not to speak to his son because, “…due to the potential wedge it may cause between him and I, and at this stage I don’t think anything has happened and even if it had I don’t think that he would open up about it anyway”.  The next email is from the father again to Sergeant C on 23 August 2011 in which he informs her that he believes his son and his sister are swapping SIM cards.  Sergeant C responded to the father on 23 August 2011 and told him that there was no hurry for him to produce the photographs of the texts because they would only be required as evidence in legal proceedings.  The next email is from the father who offers to drop in the pages of texts on 26 August 2011.

4. As we understand it, the father wishes to adduce this evidence in the appeal to demonstrate that the Federal Magistrate erred in finding as he did:

   110. The father’s reasoning that to disclose the text messages between [the son] and DP might “drive a further wedge” between he and [the son]  misses the point and emphasises further the lack of insight of this father.

   111. The abovementioned and disturbing text message relationship between DP and [the son] was within the knowledge and the hands of the father for many months prior to this trial commencing. He did not raise concerns as to the possible grooming nature of the adult’s behaviour in his affidavit or with any authority. His culpability lay in that he admits that he in fact harboured such concerns. When cross-examined as to this conundrum, the father suggested this he held onto the material for tactical purposes in respect of this Court case. To my mind, it is simply unfathomable that a parent, armed with such information, would leave his son at risk of harm or abuse and do so solely to enhance his own Court case. …

1. The Federal Magistrate had earlier remarked that:

   16.… The messages had, however, been in the possession of the father since well prior to the commencement of the trial as they were, in fact, included in part in his trial affidavit.  

2. The email correspondence that the father would adduce on the appeal does not, it seem to us support a conclusion that had it been before the Federal Magistrate, he would have come to a different conclusion. Indeed the email correspondence appears quite equivocal on the point. He did not demonstrate how the further evidence would have produced a different result at the trial. 

Victoria Police records

1. In relation to the documents produced by Victoria Police, in his affidavit in support of the application, the father refers to two instances in which the police were involved, however without any indication of what is contained in the police records, a description of the document and how it is said to relate to a matter in dispute before the Federal Magistrate, it is impossible to understand in what way those documents could come before us on the appeal.  The father indicated that these documents had been produced for an earlier hearing.

2. We do not propose to admit these documents into evidence on the appeal.

Material tendered or filed in earlier proceedings which was not sought to be relied on in the hearing before the Federal Magistrate.

1. The documents in this category are the father’s affidavit filed 19 May 2009, the affidavit of the mother’s brother, sworn 17 May 2009 and an extract of transcript of 17 May 2009.

2. The father refers to his affidavit sworn on 19 May 2009 in his summary of argument and includes in his summary, paragraphs 114 and 131 of that affidavit.  The father describes this affidavit as “already before the court, previously in these proceedings”.  In fact, it was not in evidence nor sought to be relied upon at the trial before his Honour.  Neither the affidavit of the father nor the mother’s brother’s affidavit was before the Federal Magistrate.

3. The father refers to an incident in May 2009 described in his affidavit:

   10.On 10 May 2009 an incident occurred at the home of [Mr M], brother of [the mother]. [The mother] subsequently reported the matter to the [Victoria] Police SOCA unit and later made false allegations, which [the son] has come to believe, namely that he had suffered broken ribs during the incident. 

4. The father annexed to his affidavit the police report in relation to the incident.  He further relies on part of an affidavit sworn by the wife’s brother where he refers to the events of 10 May 2009.  It seems that the children were dropped off at Mr M’s house and collected from there by the father to spend time together.  In relation to that occasion, the mother’s brother said that he did not see the father assaulting the son as had been asserted. 

5. Further, the father attached a transcript of a hearing on 10 September 2009 which appears to have been of a procedural hearing and an interim hearing to determine the arrangements for the children in the period leading up to the trial (Transcript of 10 September 2009 page 6 line 38 to 40).  The lawyer for the father referred to the mother’s assertion that the father had assaulted the child  and broken his ribs (Transcript of 10 September 2009 page 14 line 40 to 43).  In answer to the Federal Magistrate’s questions, the mother said that the child was assaulted but she had not been aware of any injury at the time.  She said; “It wasn’t until some weeks after the event that [the son] said to me that [the father] has broken his rib”. (Transcript of 10 September 2009 page 25 line 37 to 39).

6. The father submitted that this evidence was important because it supported his contention that the mother was capable of manipulating people to accept a version of events that was not accurate. 

7. The father’s affidavit filed in May 2009 was not before the Federal Magistrate.  It, like the affidavit of the mother’s brother, is said to relate to events of controversy that had occurred since the previous interim hearing in March 2009. That it is controversial of itself, renders the document unlikely to be admitted on an appeal hearing.  This evidence, the affidavits and the transcript related to a clearly contentious issue and the acceptance of it in the appeal would, in effect, require this court to re-hear the trial. 

Mother’s medical records

1. The father contended before us that the mother’s medical records, produced under subpoena had been accepted into evidence but, because of an error, had not been given an exhibit number.  He thus argued that they should be included in the appeal books and taken into account by us on the appeal.

2. The records were not accepted into evidence.

3. When, during the trial, the father’s counsel tendered the medical records in toto the mother’s counsel objected to their admission because only parts of the documents had been referred to in cross-examination.  Counsel for the mother indicated that if the father’s counsel would mark the pages in the documents on which he cross-examined the mother, he would raise no objection to the admission of the documents (Transcript of 1 July 2011 page 302 line 38 to 39).

4. It seems that the father’s counsel did not take the course suggested and mark the documents nor did he again tender them.  They were thus not part of the evidence before the Federal Magistrate.

5. The issue of the mother’s mental health had been the subject of cross- examination and the content of the various pages of the medical records on which she was cross-examined were disclosed in the examination, thus were available to the Federal Magistrate in the transcript of the proceedings.

6. The father has not demonstrated that the documents ought to be admitted on the appeal.

Audio recording of contact handover on 18 July 2009

1. The father contended that the recording of this event was relevant because, he said it highlighted:

   … the manner in which [the mother] influenced the children, and the manner in which she – I will use a colloquial term – steered them towards some beliefs. That ability of her to persuade people and steer them towards particular beliefs is critical and relevant to the manner in which she induced me at one stage to believe a particular story of hers. And that is – goes central to the issue of domestic violence. 

   (Transcript of 6 March 2014 page 9 line 14)

2. As will appear from the passages of the Federal Magistrate’s reasons extracted in this judgment, he was critical of the mother’s failure to encourage the children to have a relationship with the father.  It is the nexus between what the father asserted was the mother’s capacity to cause people to believe incorrect events and her allegations of domestic violence that formed the thrust of the application to adduce evidence and which was seminal to the grounds of appeal.

The father’s affidavit of 19 May 2009

1. The father’s affidavit of 19 May 2009 to which we have referred plays a pivotal role in his argument that this court should consider what he referred to as a “lie” told to the Federal Magistrate by the mother’s legal representative.  Given the prominence of this argument in the father’s application and in the appeal, it is appropriate to set out the detail of the argument.

2. Principal in the father’s application to adduce evidence on the appeal and in his appeal grounds, is his assertion that the mother’s lawyer “lied” to the court about the father’s evidence and that this formed the basis for a concatenation of findings and inferences that led, he says inexorably, to the Federal Magistrate’s making findings adverse to his credit and which were reflected in the eventual outcome of the case.

3. The “lie” arises from a comment made by the mother’s counsel to the Federal Magistrate about the father’s evidence.

4. On 9 February 2012 the hearing before the Federal Magistrate resumed part heard from December 2011.  When the hearing recommenced, the mother’s counsel, Mr Allen raised with the Federal Magistrate what he described as “an error” that occurred in his cross-examination of Dr E in August.

   MR ALLEN: …I put to Dr [E] yesterday my note that I made of the cross and that is that the father said in regard to the false memory that he developed, he realised it was a false memory 18 months ago.

   HIS HONOUR: When you and I had that discussion.

   MR ALLEN: Yes, and that was it. That was my note at the time. I subsequently took notes on the transcript but I must say I didn’t – I had more to look at what the father had said about the violence. Looking at the  - I happened to go through those notes last night and looking at this material of Dr [H], and in fact, what the father said was as I read it in the transcript was:

   I developed – I believed I had this memory or was a false memory somewhere between 18 months and two years ago.

   Now, using my logic or the argument I was putting to the court through the witness was that that meant that the father consciously if he is to be believed about that explanation – consciously lied to Dr [E] in July---

   HIS HONOUR: Lied by omission.

   MR ALLEN: Well, lied by – when he said, vehemently denied it, my point was that it fell within the two year period, fell outside the two year period, the 18 month period, sorry.

   HIS HONOUR: Yes

   MR ALLEN: But clearly on the father’s evidence if he said that it was 18 months to two years ago then two years ago in the June hearing was about 6 June 2009 and Dr [E] saw the father on what is on 5 July, hence I was one year---

   HIS HONOUR: Yes

   MR ALLEN: But my point is, your Honour, I apologise for the because that was the argument I was putting strongly that it was a lie. Unfortunately I then didn’t get into comment on other matters but I apologise to the court for that error.

   HIS HONOUR: I’m grateful for that. I don’t think there is any harm done in an evidentiary sense. I mean, you might have put some forceful final submissions on that chronology.

   MR ALLEN: It is – I might say, your Honour, I will be crossing Mr [H] when it comes to my time on that same point because Mr [H’s] report does even on the father’s explanation fall outside, is older than two years from June.

   …..

   HIS HONOUR: You are obviously, but your point in your cross-examination of Dr [E] was that Mr [Penrice] was interviewed as to the allegations of domestic violence and he denied them whereas he has given evidence now that he had a – what’s it called, a something memory?

   MR ALLEN: Well, he described it as a false memory.

   HIS HONOUR: False memory, yes

   MR ALLEN: Dr [E] had this association

   HIS HONOUR: From 18 months

   MR ALLEN: 18 months to two years ago.

   HIS HONOUR: Before his evidence

   MR ALLEN: Yes

   HIS HONOUR: Which encompasses the period that he was interviewed by Dr [E]

   MR ALLEN: It does, yes. He certainly – I will make submissions. He certainly didn’t disclose to Dr [E] that possibly had had some kind of groda Damascus (semble road to Damascus) moment and realised that he – while I categorically deny it – I now do have a memory but it’s false and that I tell you that, because it was put to him.

   (Transcript of 9 February 2012 page 2 line 17 to page 4 line 11)

5. It is clear that both the father and his solicitor, Mr Harriss were in court while this discussion took place.  Mr Harriss made no comment on what the mother’s counsel said nor sought to correct what he had said.

6. The father submitted that the representation of his evidence given to the Federal Magistrate by the mother’s counsel was false and knowingly so. He took us to his evidence to which counsel for mother referred. 

7. On 30 June 2011, the father was cross-examined by counsel for the Independent Children's Lawyer about evidence that the mother, in counselling, alleged he had attempted to strangle her and he had, while denying it, apologised to her.  The father said that he had no recollection of such an assault occurring but was trying to placate his wife.  He was asked:

   [MS DOWLER:] Tell me about the still image? [MR [PENRICE]:]---Now, the still image that she – that- okay. Over the ensuing weeks if I raised anything to say, “look, I don’t recall that” it would be howled down with, “It happened. Don’t deny it”. It became, for want of a better term, accepted truth. I don’t – it always felt wrong but there was this mental picture and it was a picture of me with my hand around [the mother’s] throat and it was very clearly in the garage – carport it is actually – in Darwin because the background wall was the corrugated – it’s colorbond. And that was just – that is what I developed in my head trying to imagine quite what [the mother] was describing. I had no recollection of that event but I developed, for want of a better term, that still image.

   …

   [MS DOWLER:] Don’t you think it’s a bit odd? A false memory?--- [MR [PENRICE]:]A false memory?

   Yes?--- [MR [PENRICE]:] Yes, I do think it’s odd. It’s not a normal circumstance.

   Have you ever discussed it with any mental health practitioner or doctor?--- [MR [PENRICE]:] No

   [MS DOWLER:]Why not? [MR [PENRICE]:]---Because I only came to the realization that it was a false memory probably about 18 months, two years ago. When was- I’m trying to think when we went through this.

   ….. [MR [PENRICE]:]---Sometime in 2009

   [MS DOWLER:]…sometime after – 14 October 2009 was when the trial started on the last occasions? [MR [PENRICE]:]---Yes. It was prior to that. It was after [the mother] had made all these allegations.

   Transcript of 20 June 2011 page 113 line 12 to page 114 line 12

8. The “lie” then as asserted by the father was the difference between what counsel said to the Federal Magistrate: “I developed – I believed I had this memory or was a false memory somewhere between 18 months and two years ago.” And the father’s evidence; “Because I only came to the realization that it was a false memory probably about 18 months, two years ago.”

9. The father was asked to articulate what the asserted “lie” was and he said:

   He has put here, quite – quite critically “somewhere between 18 months and two years ago”. He has presented it as a bookended time. …A period of time that is definitive: in between 18 months and two years….The quote itself is very vague.

10. He was asked during the appeal:

    The seminal point is Mr Allen said “between 18 months and two years ago” and you said “about 18 months ago, two years ago”. And that’s the seminal point.

    ……

    Yes.

    (Transcript of 6 March 2014 page 14 line 23 to page 15 line 1)

11. Thus, on this evidence, the father’s realisation of a false memory occurred no earlier than June 2009 (being two years before the date on which he was being cross-examined).

12. However the father said in his affidavit in support of the application to adduce evidence in the appeal that he believes he came to the realisation that he did not assault the wife but had imagined a memory “in the first week of April 2009” per his  affidavit of 29 November 2013.

13. Based on the father’s evidence, his realisation of a “false memory” came either no earlier than June 2009 (accepting his evidence at the hearing in June 2011) or accepting his assertion in the affidavit of 29 November 2013, he came to this realisation in April 2009. In either case, it was information known to him when he saw Dr E in July 2009.

14. The fact of the matter is however, that the father did not directly raise in interview with Dr E his opinion that his memory was but an imagining, no matter when he came to that view. 

15. The father says that during his interview with Dr E he became aware that Dr E did not have his affidavits filed in the case and says, in his affidavit of 29 November 2013, that his solicitor sent the affidavit to

    
    

    Dr E immediately after the interview.  In fact, it seems from the documents annexed to the affidavit that the father’s solicitor sent six documents to Dr E, being all of the documents on which the father was to rely in the trial before the Federal Magistrate.  The accompanying letter to Dr E makes no specific reference to the father’s belief that he experienced a “false memory” nor directs Dr E’s attention to any particular part of either of the father’s two affidavits included in the bundle.

16. Further, the father agreed that Dr E was not asked any questions on that affidavit in the hearing.

17. Accepting that the father provided Dr E with the information by sending the affidavit to him, it falls far short in our view of establishing that the Federal Magistrate was wrong in finding that the father had withheld information as will appear from our later discussion on this issue.

18. It follows that none of the evidence that the father sought to adduce in the appeal is able to be received by the court on appeal and his application will be dismissed.

The appeal

1. This is an appeal from a discretionary decision.  The principles relating to appeals from discretionary judgments are well settled.  It is not sufficient for the appellant to demonstrate that the finding of fact for which the appellant contends may have been open to the trial judge on the evidence before the trial judge. It is necessary to demonstrate that the finding of fact complained of was material to the exercise of discretion and that it was not reasonably open to the trial judge on the evidence. (see Edwards v Noble (1971) 125 CLR 296 at 304).

Ground 1

The judgment, and the orders stemming from, them are flawed in:

(a) that the trial judge makes an error of fact in that he fails to recognise Dr [E’s] expert witness evidence on “false memory”; and

(b) that the trial judge makes an error of fact in that he attributes the supposed absence of evidence on “false memory” to
“[Mr Penrice] not appraising Dr [E] of these images”

Ground 1(a)

1. It was the mother’s case before the Federal Magistrate that the father had subjected her to violence.  The father denied the alleged conduct.  The Federal Magistrate said:

   60. The father in all of his affidavit material denies each and every allegation of violence. He made the same denials to the expert witnesses in this matter, Mr [H] and Dr [E]. His counsel’s opening submissions at this trial repeated those denials.

   61. The father was cross-examined extensively in respect of these issues. Despite his denials, he gave evidence of a form of “mental image” or “still image” in similar particulars to the mother’s allegations. Such evidence had, in fact, been given by him in the aborted trial of 2009. …While conceding these “images”,
   Mr [Penrice] believes them to be “false” images rather than “repressed memory”. In answer to Ms Dowler he said:

   I have no actual recollection. I have a mental picture but it is caused by me deliberately trying to imagine what she ([the mother]) described.

   ….

   63.Counsel for the mother and the Independent Children’s Lawyer both place emphasis on the fact that Mr [Penrice] claims to have developed these images prior to his appointment for a psychiatric assessment with Dr [E]. Yet he did not disclose the “images” to the psychiatrist. … The inference I am asked to draw is that Mr [Penrice] was deliberately selective in his historical report to Dr [E] by omitting matters that might cause negative comment and findings against him.

2. We understand that the father’s position at the trial was that his mental images were not based on a recollection of actual violence perpetrated by him on the           mother but were:

   a)the product of the mother’s ‘adamant and persistent insistence’ that the father had been violent to her; and/or

   b)were formed by him to better empathise with the mother and how she was feeling. In his own words and in relation to one such image, the father said:

   It became, for want of a better term, accepted truth. I don’t - it always felt wrong but there was this mental picture and it was a picture of me with my hand around [the mother’s] throat and it was very clearly in the garage – carport it is actually – in Darwin because the background wall was corrugated – it’s colorbond. And that was just  - that is what I developed in my head trying to imagine quite what [the mother] was describing. I had no recollection of that event but I developed, for want of a better term, that still image.

   (Transcript of 30 June 2011 page 113 line 19 to 25)

1. His Honour said:

   81.…[the father] claims these to be “false” memories rather “repressed memories”. Frankly, he is perhaps not qualified to make the distinction and it is unfortunate that there was no psychiatric evidence before me to do so due to [the father] not appraising psychiatrist Dr [E] of these “images”.

2. The father is correct when he submitted in his summary of argument that in relation to false memory there “was evidence before (sic) in

   
   

   Dr [E’s] oral testimony under cross-examination by all three counsels”.  Dr E gave evidence generally about the theory of “false” memories:

   MS DOWLER: Is there something known to psychiatry as perhaps false   memory or received memory or something along those lines?

   DR [E]: Yes.

   MS DOWLER: What are the criteria for that condition, if it’s a condition?

   DR [E]: Well, false memory normally occurs in a different scenario where someone creates in their own mind something that is said to have happened to them.  Quite often in the case of sexual abuse with..... say they’ve been sexually abused when they were infants and they can recall it and – and so on.  So it’s – this is different to that.

   MS DOWLER: Are you talking about those people had some sort of – under hypnosis were able to remember something that happened when they were two months old, that ­ ­ ­?

   DR [E]: Or having therapy ­ ­ ­

   MS DOWLER: What, the therapy – they’re coming up with ­ ­ ­?

   DR [E]: ­ ­ ­ the wrong kind – the right kind of therapy where it’s – it’s suggested to them, and then they believe that something happened, which ­ ­ ­

   MS DOWLER: Which explains everything went wrong?

   DR [E]: ­ ­ ­ on evidence hasn’t happened, yes, but this is – this is the opposite to that.

   MS DOWLER: If I could describe something to you, could you tell me if it fits the criteria of false memory or something else.  The father has told the court that, in fact, he does have some form of memory of something happening in Darwin – and I will try and get this as accurately as possible, and I’m sure I will be corrected by his Honour or my learned friends if I get it wrong – but that he has a memory, but it’s a still memory, akin to a photograph, where he’s a third person looking at it, effectively;  where he can see his hands around the throat of the mother in the garage at Darwin, and he’s – recalls seeing the outside wall, and I think of the house and a window.  He has a distinct memory of what he describes as a still photograph of his hands around her neck.

   …

   MS DOWLER:   Do you have anything that you can say from the psychiatric point of view about that sort of memory, what it is, what it constitutes?

   DR [E]: Well, we – we – we would probably see that as an episode of dissociation.

   MS DOWLER: Could you tell ­ ­ ­?

   DR [E]: We ­ ­ ­

   MS DOWLER: What does “dissociation” mean in a psychiatric sense?

   DR [E]: Dissociation where there is – is where a situation, normally a very stressful or traumatic situation is faced by the person, and they remove themselves in terms of the experience.  So people who are being tortured and that kind of thing often dissociate, and it’s a – it’s a – it’s a protective mechanism.

   MS DOWLER: But in this case he, on the mother’s version, and to some extent corroborated by his vision, is the perpetrator rather than the victim?

   DR [E]: Yes.

   MS DOWLER: Is that known as well?

   DR [E]: Well, some people claim to have dissociated when, in fact, they’ve done something, and come up with that as an explanation;  that is that they – they – that they may have done something, but they have no exact memory of it and ­ ­ ­

   MS DOWLER: And?

   DR [E]: It’s – it’s a defence that’s used some times to cover over actions on behalf of somebody that they regret, as they think they’ve got some memory of it, but that’s about it.

   MS DOWLER: There’s a further, what the father describes as a false memory, where he recalls – and once again I stand to be corrected if I get it in any way wrong – another still vision where he’s chasing the wife up some stairs in a home they had in [Melbourne].  And this is – once again he talks about it from being from a third party perspective.  He realised that it was him looking at this happening.  Does that sound, once again, like a dissociative experience?

   DR [E]: Yes, it’s not a false memory.

   MS DOWLER: No?

   DR [E]: No.

   MS DOWLER: And on balance are you able to say whether it’s more likely in fact that these things occurred than didn’t?

   DR [E]: Yes.

   MS DOWLER: You think they occurred?

   DR [E]: Well ­ ­ ­

   MS DOWLER: On balance?

   DR [E]: ­ ­ ­ if you’ve got a memory of something like that, where there are someone’s hands and you are the only two people there, then two and two equals four, I think.

   MS DOWLER: Is it also possible that if so, doesn’t fit with his own view of himself, that he’s convinced himself that these things didn’t happen?  

   DR [E]: Yes, just to be separated off.

   MS DOWLER: So there’s ­ ­ ­?

   DR [E]: So his rational mind can’t cope with that, so it gets put somewhere else.

   MS DOWLER: If I can put it this way, it seems to me there’s three possibilities – one it’s a false memory, which you say from a psychiatric ­ ­ ­?  

   DR [E]: No.

   MS DOWLER: ­ ­ ­ point of view you don’t believe it is.  Two, that it actually occurred and he is now effectively lying to the court – remembers these things, but doesn’t want the court to associate him with someone who might commit domestic violence; or, third, they did occur, but that he had such difficulty assimilating that he might be the sort of person to do that, that he is creating his own sense of reality that excuses him in some way, or says ­ ­ ­?

   DR [E]: Yes.

   MS DOWLER: ­ ­ ­ it didn’t happen?

   DR [E]: So two and – two and three are on a continuum. 

   MS DOWLER: They’re related effectively?

   DR [E]: Yes, they are on a continuum.

   (Transcript 8 February 2012 page 5 line 13 to page 7 line 46)

3. The father was represented throughout the trial and, at this stage by Mr Harriss who cross-examined Dr E.

4. In Mr Harriss’ cross-examination of Dr E, the father’s “false memory” experience was raised:

   MR HARRISS: Dr [E], [the father’s] evidence is that in relation to the incident, a still image of the strangulation, if you like, in Darwin, that
   [the mother] repeatedly represented to him in therapy, when they were seeing Dr [S], as I recall, that this incident had occurred and that – in fact, he says it didn’t occur, but that he repeated representation to him that it did occur, and that this is what happened, may be responsible for instilling that false memory.  Do you accept that as a plausible explanation?

   DR [E]: Well, marriage is a many splendid (sic) thing and, you know, often where there is a lot of conflict between parties, and if one is absolute – and there has been a lot of conflict – it – it may well be that one’s – one person’s view of what has happened goes much further than what actually happened, and if that is repeatedly referred to in a very highly emotive fashion with considerable intensity, and the other person feels guilt about whatever part – you might have been a struggle or whatever;  then, yes, they can begin to wonder if, “Well, perhaps I did do that, I don’t know.”  So that’s a possibility.

   MR HARRISS: And that’s not uncommon, that type of outcome, is it?

   DR [E]: Not uncommon.  Well, it – it’s possible.  That’s what I’m saying.  I don’t know how common it is.

   MR HARRISS: So that may be an alternative explanation to what you describe as the dissociation explanation of the false memory?

   DR [E]: Yes, it could be, yes.  It could be.  It could be.

   MR HARRISS: Because [the father’s] evidence is that not dissimilar to how you describe it, where he was repeatedly represented to him, and he says, “Well, if you say it happened, then I apologise for it”?

   (Transcript of 8 February 2012 page 29 line 14 to 37)

5. The Federal Magistrate’s rejection of the father’s assertion of having a “false memory” was one open to him on the evidence before him. The father has not demonstrated any error.

Ground 1(b)

that the judge makes an error of fact in that he attributes the supposed absence of evidence on “false memory” to “[Penrice] not appraising psychiatrist Dr [E] of these images”;

1. The father contends that the Federal Magistrate was in error in accepting that the absence of expert evidence about “false memory” was attributable to the father “not appraising (sic) psychiatrist Dr [E] of these images” when, in fact, the father had given notice of the “false memories” to Dr E.

2. His Honour stated: 

   81. … It is put to me by Mr Allen of Counsel for the mother that it does [the father] no credit in failing to raise these “images” with
   Dr [E] when [the father’s] own chronology given to the Court is that they were occurring well before the interviews with the psychiatrist. Significantly he told Dr [E] that he “had no recall” of the incident’s alleged. I am troubled as to why he was not completely and fully candid with Dr [E]. I find this omission by [the father’s] evidence to be persuasive and corroborative of [the mother’s] version of events.

3. The father attended on Dr E on 2 July 2009 to be interviewed in preparation of the report.  The father conceded that during his session with Dr E he did not raise the issue of false memory with him nor, he said, did Dr E raise or discuss the issue with him.  Nonetheless, the father maintained that he had apprised Dr E of the information.

4. The father submits that he provided Dr E with a copy of his “affidavit sworn 19 May 2009 and filed 20 May 2009 in these proceedings…as part of a disclosure of all evidence. The matter was not withheld from Dr [E] at all.”

5. The father’s reference to the affidavit of May 2009 being “in these proceedings” is plainly wrong. The affidavit, which was not in evidence, related to the proceedings which were concluded in 2009. Even so, our reading of the transcript of the hearing is that the father’s lawyer did not cross-examine Dr E on any affidavit or other materials provided to Dr E by the father or to which Dr E ought to have had reference in his assessment of the parties or in giving evidence to the court.  While we are prepared to assume that the expert would have regard to material sent to him which is relevant to the preparation of the report, it does not provide an answer to the Federal Magistrate’s criticism of the father not raising this, apparently most important aspect of his case, directly with the expert when he had that opportunity. Even if, when the Federal Magistrate criticised the father for “failing to raise these “images” with Dr [E]”, he may not have been astute to the fact that the father had provided Dr E with an affidavit from the proceedings concluded in 2009 in which this was asserted, the finding was, nevertheless, one that was well open to the Federal Magistrate. This is all the more understandable in the absence of the father’s lawyers having put the affidavit into evidence or cross-examined on it.

6. In our view the father’s contentions in ground 1(a) and (b) miss an obvious and important point. That is, if the father sought to advance a proposition which required the support of expert psychiatric evidence about himself, as appears to be the case here, it was incumbent upon the father to adduce that evidence or ensure that it is adduced.  It is convenient for us to state here that it is not sufficient for the purpose of this appeal for the father to identify parts of the evidence which his Honour did not refer to specifically in the reasons and ask this court to infer that his Honour did not take relevant evidence into account. Here the Federal Magistrate heard the totality of the expert’s evidence and cross-examination and accepted the expert’s conclusion.  His conclusion was one he was entitled to draw on that evidence.

7. That a judge does not mention in his reasons every fact and circumstance about which he has heard evidence, does not mean that the judge failed to take that evidence into account and has, thereby, fallen into appealable error (see Whisler & Whisler [2010] FamCAFC 18 at [64]).

8. Grounds 1(a) and (b) do not disclose error.

9. Before we leave these grounds, however, we should deal with an issue which the father, by his summary of argument indicates has some bearing on grounds 1(a) and (b) but which, we are satisfied, is not capable of having any bearing on any issue in this appeal.

10. The father contends what we understand to be an assertion of bias in the Federal Magistrate in that in the course of Dr E’s cross-examination by counsel for the Independent Children’s Lawyer, the Federal Magistrate “closes down” a discussion about a Four Corners’ television program called “The Edge” which aired on ABC television on 5 April 2010. In any event, the television program appears to merely lay the foundation for an analysis by the father, in his summary of argument, of similarities between the subject of the Four Corners’ episode, and the mother in these proceedings. The father’s analysis of similarities between the mother and the person referred to in the ABC show was not the subject of expert evidence before his Honour. The lawyer for the father did not raise any concern about his Honour’s conduct in this regard and there was no application for his Honour to disqualify himself.

    
    

    A party is not entitled to wait until an appeal to first raise the issue of bias (see Vakauta v Kelly (1989) 167 CLR 568 at [572]).

11. The ABC television show or the father’s purported analysis of it was simply not relevant to the proceedings before his Honour. The father’s discussion of it over three pages of his summary of argument is not a matter properly directed to any ground of appeal and seems to be one of a number of divergent and digressive contentions which the father seeks to ventilate in this appeal.

Ground 1(c) - 1(e)

(c) that the judge’s error of fact in (b) above has in its basis two gross misrepresentations by Mr Allen, Counsel for Ms [Horton], which          were presented in concert with a blatant, deliberate and knowing lie to the court by Mr Allen, Counsel for Ms [Horton], and that the judge has erred in failing to check the actual evidence before him, instead wrongfully accepting as fact the misrepresentations that Mr Allen has resubmitted; and

(d) that the evidence of opinion of the expert witness Dr [E] has been materially tainted by questions based in grossly misrepresented and factually wrong circumstances presented by Mr Allen, Counsel for Ms [Horton] and Ms Dowler, counsel for the ICL and such evidence has been relied upon in the findings; and

(e) that the evidence of opinion of the expert witness Mr [H] has been materially tainted by questions based in grossly     misrepresented and factually wrong circumstances presented by Mr Allen, Counsel for Ms [Horton] and such evidence has been relied upon in the findings.

1. The genesis of this ground is in the “lie” that the father asserts was told by counsel for the mother to the Federal Magistrate.  We have considered the evidence in this regard in dealing with the father’s application to adduce evidence on the appeal and in our consideration of an earlier ground.  We do not propose to repeat our discussion and what follows should be read in the context of that consideration.

2. It seems to us that there are two very basic points which undermine the asserted ground of appeal.

3. First, the father was at all times represented by a lawyer who was able to object to questions put in cross-examination and in some cases did so. The right to object to questions asked includes questions which are described by the father as questions based on “gross misrepresentation” and questions put on a factually wrong basis or circumstance.

4. Secondly, on both occasions, in the cross-examination of the expert witnesses,

   
   

   Dr E and Mr H, by the lawyer for the father (Mr Harriss) no questions were put to these witnesses referrable to the affidavit sworn on 19 May 2009.

5. Thirdly, during argument on the re-opened appeal, the father conceded that he was in court at the time the so called misrepresentation was made but gave his solicitor no instructions to object or otherwise cavil with what was said.  Curiously, the father said that while he thought what was said was “odd” he said that he did not have the transcript available to him to check what he in fact had said.  It seems somewhat unusual that, given it was his evidence on a matter of significant importance to the case, he was not in a position to immediately identify the misrepresentation and raise it with his lawyer (Transcript of 6 March 2014 page 30 line 11 to 42).

6. Whilst the father may not have appreciated that the Federal Magistrate would focus, as much as his Honour did, on the fact that the father did not raise the earlier evidence of false memory with the experts directly, we are unable to see how it is open to the father to say that it is raised at all if, as is the case, the 2009 affidavit was never introduced into evidence before the learned Federal Magistrate.

7. As our earlier discussion on this point makes clear, we find no force in the argument that counsel in fact misrepresented the father’s evidence or that his representation of the father’s evidence to the Federal Magistrate, of itself, had any effect on the Federal Magistrate’s ultimate findings.

8. We are not satisfied there is any substance to grounds 1(c), (d) and (e) and they are not established.

Ground 1(f) – 1(g)

(f) that the judge errs in that he takes an incorrect interpretation of the “no recall” sentence in the Dr [E] report, against evidence to the contrary, and relies upon that interpretation in the findings and in particular the finding of domestic violence; and

(g) that the judge errs in that he makes an incorrect assumption on the “chronology” issue, against the evidence to the contrary, (contributed to by Mr Allen’s gross misrepresentation discussed above), and draws significant inference from that assumption and relies upon it in the findings and in particular the finding of domestic violence;

1. We understand this ground to relate to page 6 of Dr E’s report where Dr E refers to some history of the parties:

   In 2006 they attended Dr [S] for marital counselling. [The father] attended on his own for some sessions, as did his wife, and there were conjoint sessions. He was told by Dr [S] that he needed to look at things more from his wife’s perspective. This improved things dramatically. [The mother] made the accusation that he had strangled her in Darwin. He said he had no recall of this. He apologised for that.

2. It is apparent that the Federal Magistrate took into account and placed weight on the fact, as he understood it, that the father had told

   
   

   Dr E in July 2009 that he had “no recall” of having assaulted the mother as she alleged. Furthermore that the father had not then mentioned to

   
   

   Dr E, in their face to face interview, the “still images” of violent scenes in his mind which he had, in the first week of the preceding April, realised were “false images”. It appears that the only matters of which the Federal Magistrate did not have knowledge were that the father had provided or caused to be provided to Dr E a copy of his affidavit from May 2009 and the contents of the affidavit. If the father had wanted to adduce evidence from Dr E in support of the proposition that the still images were attributable to false memory, then it was the responsibility of the father and those who represented him to cross-examine Dr E to that effect.

3. In any event, the father’s failure to address the false memory concept directly with Dr E is not by any means the only basis upon which his Honour’s adverse findings about the father rested, as is exemplified at [82] to [86]. The assessment of the credibility or believability of a witnesses is one quintessentially for the Federal Magistrate and is based on many factors and findings as the paragraphs to which we have referred reveal. It is incorrect to assert, as the father does, that the sole basis for the adverse findings about him made by the Federal Magistrate was the issue of whether the father directly raised the false memory issue with Dr E.

1. In our view, the errors asserted by the father in grounds 1(f) and (g) do not vitiate his Honour’s ultimate conclusion which, we are satisfied, was a conclusion well open to his Honour on the evidence.        

Ground 1(h) – 1(j)

(h) that the judge errs in that he fails to consider Dr [E’s] evidence that the mother has a psychiatric condition, more likely Borderline Personality Disorder, and the consequent risk to the children from that condition; and

(i) that the judge errs in that he fails to consider Dr [E’s] evidence of the mother having a psychiatric condition, more likely Borderline Personality Disorder and the consequent alternate explanation for her “equivocal” evidence; and

(j) that the judge errs in that he fails to consider Dr [E’s] evidence of the mother having a psychiatric condition, more likely Borderline Personality Disorder and the consequent alternate explanation for her claims of domestic violence;

1. The evidence of Dr E about the mother’s mental health was:

   MR HARRISS: Now, is there any overlap between this sort of description that you’ve given, and [the mother’s] anorexia nervosa, and the condition known as narcissistic personality disorder?

   DR [E]: I – I – I would say that – you know, we can get very bogged down with terms and – and all that.  You know, I think that what we’re talking about is someone whose emotional function is fragile and – and indelibly based within [the mother], and my view, if you want to talk about personality structures, is that Ms – Ms [Penrice] is more likely to suffer from a borderline personality disorder than a narcissistic one.  Narcissistic – narcissistic personality disorders, person who is self and aggrandizing; very, very self‑interested totally and quite superficial in their ability to look after other people and so on.  And I don’t think that that’s – that they’re not – they’re not the significant markers that I would believe that Ms [Penrice] is.

   (Transcript of 8 February 2012 page 33 line 4 – line 15)

2. Further, he said:

   MR HARRISS: What are some of the features, doctor, of – or symptoms of borderline personality disorder?

   DR E: Well, emotional intensity, high levels of insecurity, impulsivity, very poor self esteem, inability to maintain relationships, variable psychological functioning, sometimes with quite severe episodes of depression, sometimes drug and alcohol abuse.

   (Transcript of 8 February 2012 page 40 line 35 – line 39)          

3. We first observe what we regard to be a fundamental flaw in the father’s asserted error which is that the Federal Magistrate failed to consider the evidence “that the mother has a psychiatric condition”. The evidence does not allow for that conclusion. The doctor did not say that the mother had a borderline personality disorder, or indeed any other psychiatric condition.

4. However, even if the doctor had given that evidence, it was but one piece of evidence in a complex case that required his Honour’s consideration and on which his determination was based.  His Honour found the capacity of both parties to parent the children to be compromised but for different reasons which are found at [108] to [112].  His Honour was obliged to resolve disputes in the evidence and make findings of fact on the evidence before him.  His reasons demonstrate that this is what he did. The father’s ground does not assert that the conclusion reached by the Federal Magistrate was plainly wrong or one not open to him, but devolves to an argument that the Federal Magistrate failed to attribute sufficient importance or weight to the evidence. The weight or importance that is placed on particular pieces of evidence is a matter for the Federal Magistrate and, as we have indicated, it is not sufficient to demonstrate error to argue that a differently constituted court may have come to a different conclusion. 

5. The father has failed to establish error in these grounds.

Ground 1(k) – 1(l)

(k)      that the judge errs in that he fails to consider that Ms [Horton] has           deliberately contrived matters with the intent to misrepresent     them   to the court and the implications this has for the      credibility of her other evidence; and

(l) that the judge errs in that he fails to make a finding on the credibility of the mother (apart from noting that a portion of her evidence was “equivocal”) despite her sworn evidence being directly and comprehensively contradicted by multiple-sources of definitive hard-copy evidence and this failure to consider the credibility, or rather lack there-of, of the mother’s evidence has contributed to the erroneous findings of domestic violence;

1. His Honour made adverse findings in relation to the mother and what “[he] sees to be her deliberate interference and discouragement of the children’s relationship with their father” at [108]. When taken with his Honour’s description at [88] of the mother’s evidence as being “although at times equivocal, is that she wants the children to have a relationship with the father…”, the unavoidable conclusion is that the Federal Magistrate made an adverse finding against the mother in terms of her capacity to parent the children as well as her credibility in relation to the issue of her encouraging contact between the children and the father at [98] to [99].

2. His Honour’s reasons indicate that he brought to bear an acute appreciation of the mother’s shortcomings as a witness. However, as we have stated earlier, an adverse credit finding about the mother was not sufficient to impugn the mother’s overall case when compared with the father’s overall case. Nor did it lead his Honour to disbelieve the mother’s evidence in preference to the father’s evidence about domestic violence (at [80]). 

3. His Honour was entitled to draw the conclusions he did. The asserted errors in grounds 1(k) and (l) are not made out.

Ground 1(m)

(m) that the judge errs in that he makes an assumption of conditionality in the evidence of Mr [H] which is not present in Mr [H’s] evidence and relies upon this conditionality assumption to discount other contrary evidence and risks to the children;

1. In his summary of argument, the father submitted:

   10.The Trial Judge errs in that he invents a conditionality in the evidence of Mr [H] which is not present in the witness’s evidence and relies upon this conditionality assumption to discount the risks to the children.  The insertion of conditionality is an error of fact.

73.Mr [H] does not come to any conclusions as to the factual dispute.  He understandably sees the allegations of violence as underlying the issue of the children’s relationship with the father.  If there are findings consistent with [the mother’s] allegations then
Mr [H] sees serious consequences and concerns flowing in respect of the children’s successful relationship with their father given the strong relationship with an possible alignment to the mother.  Conversely, Mr [H] says that if there are no findings in respect of violence, or more correctly, findings that there was no violence then the court should be concerned as to [the mother’s] longstanding mental health difficulties and her ability to facilitate the children’s relationship with [the father].  The conundrum is summarised at paragraph 30 of Mr [H’s] second report as follows:

[emphasis added]

However, there is nothing in the report interviews, observations or other materials outside of [the mother’s] affidavit material, that leads the report writer to conclude that [the father] poses the risks to the children described by [the mother].  On the contrary, the most significant and identifiable current risk to the children’s long term psychological and emotional welfare is seen as the children’s enmeshed and aligned relationship with [the mother’s] mental health difficulties, and views of [the father].

There is no conditionality in Mr [H’s] statement and in fact the statement declares “identifiable” indicating that this risk ([the mother’s] mental health) is evident regardless of the domestic violence allegations.

A careful reading of this paragraph shows that there were and still are “significant threats” to the children’s well being.

This has contributed to the Trial Judge failing to recognise the “significant and identifiable current risk to the children’s long term psychological and emotional welfare” and hence his orders do not protect the children from those risks, not the risks from [the mother’s] Borderline Personality Disorder.          

1. Mr H’s report to which the father refers is dated 24 September 2009. It predates the finalisation of the earlier parenting proceedings on 16 October 2009, to which we have made reference in these reasons.

2. The opinion expressed by Mr H, and extracted in the father’s submissions, was part of Mr H’s evaluation in 2009 prepared by him to be considered by the court when the parties sought the final consent orders on

   
   

   16 October 2009. Mr H concluded his report with the following paragraph:

   37.The parties must act decisively if the children are to avoid further psychological and emotional harm, and in this context the report writer unreservedly supports the agreement made by the parties during the course of the interview process.

3. The parties subsequently sought orders in terms of the agreement to which

   
   

   Mr H refers and final orders were made by the court in those terms, by consent.  

4. When Mr H was cross-examined in the trial on 8 February 2012, he described the alignment and enmeshment of the children with the mother’s mental health difficulties and her views of the father as being “[still] the most significant restraint to change” (Transcript of 8 February 2012 page 106 line 20). He was then asked “what psychological and emotional risk does that pose for the children if there is not that change?” Mr H responded:

   … unless there is some change in what has been happening over the years, then the chances are that [the children] will or may end up the same as [the eldest daughter] in terms of the complete estrangement from their father…

   (Transcript of 8 February 2012 page 106 line 26 to 28)

5. At [72] – [75], his Honour incorporated the paragraph upon which the father relies. His Honour said:

   72.The parties also give different versions of history to the family reporter, Mr [H]. [The father] again categorically denies any violent behaviour perpetrated by him. [The mother] again gives particularised instances of violence consistent with her statements to Dr [E] and her evidence in these proceedings.

   73.Mr [H] does not come to any conclusions as to the factual dispute. He understandably sees the allegations of violence as underlying the issue of the children’s relationship with the father. If there are findings consistent with [the mother’s] allegations then
   Mr [H] sees serious consequences and concerns flowing in respect of the children’s successful relationship with their father given the strong relationship with and possible alignment to the mother. Conversely, Mr [H] says that if there are no findings in respect of violence, or more correctly, findings that there was no violence then the Court should be concerned as to [the mother’s] longstanding mental health difficulties and her ability to facilitate the children’s relationship with [the father]. The conundrum is summarised at paragraph 30 of Mr [H’s] second report as follows:

   However, there is nothing in the report interviews, observations or other materials outside of [the mother’s] affidavit material, that leads the report writer to conclude that [the father] poses the risks to the children described [the mother]. On the contrary, the most significant and identifiable current risk to the children’s long term psychological and emotional welfare is seen as the children’s enmeshed and aligned relationship with [the mother’s] mental health difficulties, and views of [the father].  

   74.      Mr [H] can only conclude perhaps being the obvious:

   One or other of the parties had a serious underlying psychiatric or psychological disorder that was inhibiting the normal development           of their relationships with the children, and hindering their capacity and/or appropriateness to co-parent the children.

   75.The findings, one way or the other, in respect of the serious allegations of domestic violence are therefore critical to the course of consideration in respect of the nature of the children’s relationship with the father and the capacity of both parents to facilitate any relationship between the children and the father and ultimately any explanation for the dysfunctional relationship to date between the children and the father together with the orders I ultimately determine as being in the children’s best interests….

6. Mr H is a social scientist who gave expert evidence. He describes and differentiates between various factual scenarios to which his postulated outcomes might relate consistently with the best interests of the children and what findings of fact might be made by the court. The report of 8 May 2009 is replete with references to different scenarios to which he attaches different conclusions and options.  These matters are all expressed as expert evidence and, by implication, are subject to the court being able to satisfy itself of the underlying facts. His report recognises that the Federal Magistrate is the fact finder and, most importantly, it provides expert opinion which can be taken into account once a finding of fact is made by the court. As Mr H acknowledges in his first report in May 2009:

   71.      … Only the Court has a full and comprehensive view of the issues at hand, and the capacity to test the competing claims.

   72.This report seeks to assist the Court with a psychological analysis and framework that takes into account the potential outcomes of such an examination.

   (our emphasis).

7. Also in the second report, dated 24 September 2009, whence the quote relied upon by the father is taken:

   27.This evaluation is written in the absence of the matter being tested in the Court, and should the matter proceed and the Court find in favour of one or other of the parties, it is respectfully recommended that the recommendations in this report be reviewed.

8. His Honour could not regard Mr H’s opinion as anything other than conditional upon findings of fact being made by a court. Ground 1(m) does not identify any appealable error.

Ground 1(n)

(n)      that the judge errs in that he makes a finding of domestic violence which relies upon the above errors and a series of improbable and indirect inferences and that the finding of domestic violence is therefore invalid;

1. The relevant findings include those set out at [79] to [86] of his Honour’s reasons.  For the reasons which we have given in relation to grounds 1(f) and (g), we are of the view that the findings made by his Honour in relation to domestic violence were findings which were well open to his Honour on the totality of the evidence.  The father has not demonstrated that his Honour took into account irrelevant or extraneous matters or that his findings were based on errors of fact.

Ground 1(o)

(o)      that the judge errs in that he makes an incorrect assumption in consideration of the “tactical” withholding of information which is contradicted by the evidence, and relies upon that assumption in the findings;

1. At [109] to [111] his Honour made adverse findings in relation to the father’s actions and inactions around the disturbing texts from DP to the child to which we referred earlier in these reasons.

2. The text messages were produced by the father on 5 August 2011. When the father was cross-examined by counsel for the mother, he conceded that he had been in possession of the text messages prior to swearing his affidavit on 8 June 2011 (Transcript of 13 December 2011 page 7 line 10 to 48 page 8 line 26).  The father’s evidence was that he first obtained a small number of text messages from the child’s phone in October 2010 and then obtained others over the following Christmas holidays but did not process them until February 2011. He then obtained further messages in May 2011. This trial commenced on 29 June 2011 and, with four interruptions, concluded on 10 February 2012. The father produced the texts on the second set of sitting days, in August 2011, and was cross-examined extensively about them on 13 December which fell in the third set of sitting days.

3. The father conceded that he did not mention his concerns about DP in any of the 821 paragraphs of his affidavit. The father also admitted that he did not inform the mother, the Independent Children’s Lawyer, the police or the Department of Human Services of any concerns he might have about the relationship between DP and the child. Furthermore, had his Honour not taken steps to identify the person sending the texts and required him to give evidence in the case, it appears from the father’s evidence that he would not have disclosed the text messages to anyone including the police until “immediately after the hearing was over” ( Transcript of 13 December 2011 page 10 line 16). 

4. The following exchange occurred during the father’s cross-examination. His Honour said:

   HIS HONOUR: You see, if you came here and you said, I got all these text messages but they’re all – there’s 500 different pieces of paper and each one by itself – I didn’t even realise, but you didn’t. You said six months, or it might have even been 2010, doesn’t matter – I had these concerns but I made a tactical decision not to do anything about it and tactically I left my son at some risk. Now, what other conclusion can I draw from your evidence?

   MR [PENRICE]: I was considering a short-term risk for a longer term reduction of risk by hopefully getting him out of that environment.

   HIS HONOUR: But the short-term risk was to, in fact, that he could’ve been groomed or something worse, at risk of that. What was the long term gain?

   MR [PENRICE]: I’m still hopeful of getting him out of that environment where there is no risk to him.

   (Transcript of 13 December 2011 page 12 line 40)

5. In his summary of argument on the appeal, the father describes his position in the following terms:

   [The father] has traded a short-term risk for his son [in his association with DP] in order to seek a longer term safety of removing him from the situation. This is the “tactical” decision that [the father] later acknowledged.

6. The father’s complaint in ground 1(o) goes to the weight which his Honour put on evidence before him.  As we have said, the bar to establish error by a judge in apportioning weight to evidence is a high one.  The father has not established error in this ground.

Ground 1(p)

(p)that the judge errs in that he takes an incorrect interpretation of the “drive a wedge” comment, which is contrary to the evidence, and relies upon that incorrect interpretation in the findings;

1. His Honour found:

   110.The father’s reasoning that to disclose the text messages between [the son] and DP might “drive a further wedge” between he and [the son] simply misses the point and emphasises further the lack of insight of this father.

2. In his summary of argument the father submits that his Honour has “made an error of fact” in relation to the father’s failure to disclose the texts between DP and the child until the fourth day of the trial.  However, as the extract which appears below of the father’s argument makes clear, the father’s contention is that his Honour did not agree with him that his actions were soundly based or in the child’s best interests. The father submitted:

   The Trial Judge has erred in that he has failed to recognise [the father’s] recognition of a genuinely complicated situation.  Considering the whole of the evidence available, the prospect of [the mother] using the situation to her own ends to further alienate [the son] from his father (to “drive a wedge”) is a very real risk.  The natural extension of that further alienation is that it would make the prospect of removing [the son] from that environment more difficult and therefore increase the risk to [the son] of DP furthering his grooming.

   The Trial Judge has made an error of fact in that he has wrongly attributed an oversimplified understanding of the situation to [the father] and fundamentally changed the meaning of [the father’s] use of the term “drive a wedge”. Nowhere has [the father] expressed that the simple act of releasing the information would “drive a wedge”. By contrast [the father] has expressed what is in the larger picture a very real risk of [the mother] misusing the information to “drive a wedge”.  Further [the father] has demonstrated an understanding of the impact that “wedge” would have on the prospects of ultimately removing [the son] from the risk of DP.

   The trial judge has erred in not recognising [the father’s] reasonable insight of a multitude of complicating factors.  It is clear that whilst [the father] may have delayed his reporting of the matter, he was genuinely “on the horns of a dilemma” trading short term risk for improved long term safety and considering factors which are clearly evident to the Court and indeed expressed by the Trial Judge, yet the Trial Judge has failed to recognise that [the father] understood them and how they could impact upon the overall outcome.

1. During cross-examination, the father said:

   MS DOWLER: Is it more important that it might create a wedge than he might potentially be abused as a teenager. What could be more concerning to a parent than that?

   MR [PENRICE]: It was a horrible situation.

   MS DOWLER: And you did nothing about it?

   MR [PENRICE]: I stalled. You’re right, I stalled. I didn’t do nothing. I always intended to report it.

   (Transcript of 13 December 2011, page 17, line 18)

2. His Honour’s finding in relation to the production of the text messages came after having had the benefit of hearing all of the evidence and observing the father in the witness box. It is not a conclusion with which the father agrees but we find that it is a conclusion which was open to his Honour on the evidence.

3. This ground does not 1(p) identify any appealable error.

Ground 1(q)

(q) that the judge’s objectivity has been compromised by misinterpretation of the “don’t trust” issue on 13 December 2011 and his pre-conceived opinions on the matter of “false memory” which has contributed to the erroneous findings discussed above;

1. The father was represented by a lawyer throughout the trial and no application was made that his Honour recuse himself on the basis of a lack of apparent objectivity.

2. As we have observed the father’s summary of argument runs to 70 pages. Unfortunately, detail and repetition have not made for clarity and, as appears below, the extract relied upon to demonstrate error is inaccurate to a significant degree.  Doing the best we can, it appears to us that the father’s argument in support of 1(q) appears at paragraph 15 of the summary of argument and continues for three pages.

3. The father’s summary of argument contends:

   a)The Trial judge makes an unfounded allegation against [the father] which is unsupported by any evidence and is entirely speculative but more so reflects a personalisation and offence.

   b)The trial judge projects himself personally into the evidence, incorrectly claiming involvement and incorrectly relying upon this as supposed evidence of [the father] withholding information from the court.

4. The father sets out what he purports is an extract of an interchange between him and the Federal Magistrate from the transcript of the proceedings on the afternoon on 13 December 2011, in particular from “Page 1474” of the Appeal Book, which refers to the transcript of 13 December 2011, page 9.  We first set out the exchange as the father would have it be accepted occurred (the references below to the transcript have been inserted by us):

   HIS HONOUR: … because you weren’t sure what I would do; you couldn’t trust me to do it.1?‑‑‑

   (Transcript of 13 December 2011 page 9 line 3)

   MR [PENRICE]: No, your Honour…

   (Transcript 13 December 2011 page 9 line 35)

   HIS HONOUR: That’s what I just said, you didn’t have confidence that I would do this.  Now, I will stop.  Mr Allen.

   (Transcript of 13 December 2011 page 10 line 10)

   HIS HONOUR: … Mr [Penrice], that would wash – that would if this was your first day in court.  I mean, I can be – I’ve got a difficult Irish temperament and I can be a difficult sort of character and whatever, but you’ve known that since 2009.  That’s the problem.  You can’t say, “Well, we’ll see how this judge goes and if he’s up to scratch then I’ll throw in these emails.”  You knew what I was like.  Good, bad or mediocre, I don’t care but the fact is you knew what I was like?‑‑‑

   (Transcript of 13 December 2011 page 16 line 35)

5. However, as should be readily apparent from the above references to the transcript, that interchange did not take place. It appears from a reading of the transcript of 13 December 2011 from pages 5 to 18 that the father has selected lines and paragraphs from pages 9, 10 and 16 of the transcript of the proceedings on 13 December 2011 and included them in his summary of argument for the appeal as if it were the one conversation which he references to the transcript of 13 December 2011 at page 9.  It was not.  In the remaining 69 pages of his summary of argument, the father accurately used ellipses. He did not do so here.

6. We have not been misled by the father’s summary of argument. We have taken the opportunity to read the transcript and now appreciate what the father omitted. We discern that the discussion in which his Honour actually participated was a heuristic conversation in which his Honour was trying to understand why the father was prepared to disclose two volumes of text evidence on the fourth day of the trial but not previously when it was abundantly clear that the father appreciated that his concealment of evidence allowed the child to remain at risk of DP “behaving inappropriately” to him.

7. A proper reading of the transcript demonstrates that his Honour did not, as the father submits, enter the arena. There is no error demonstrated in ground 1(q).

Ground 1(r)

(r)      that the judge errs in that he fails to consider all the evidence before the court in that it excludes the affidavits of the Applicant of 7 October 2011 and the respondent of 9 December 2011 and various portions of evidence from Dr [H] and Dr [E] (eg the “false memory” evidence);

1. In the father’s affidavit sworn on 7 October 2011 at paragraph 3 he describes the purpose of the affidavit as being to:

   c)         update the court on events since my last affidavit of 8 June 2011;

   d)         inform the court of the circumstances surrounding the [DP] texts;   and

   e)         in support of my urgent application for an immediate change of    residence.

2. The affidavit comprises 57 paragraphs and 23 pages of annexures.

3. The mother’s affidavit was sworn on 9 December 2011. It responds to the last affidavit of the father. It comprises 22 paragraphs and 10 pages of annexures.

4. At [39] his Honour refers generally to the evidence and although he does not mention the two affidavits referred to by the father, there can be no doubt that those affidavits were before his Honour.

5. The affidavits significantly relate to compliance, or non-compliance, by the mother with orders for the children to spend time and communicate with the father from 8 June to 5 August, 2011. The mother’s capacity and willingness to support spend time orders occupied a great deal of this trial and produced findings by his Honour which were most unfavourable and critical of the mother. For instance, at [97] to [ 99] of his reasons and particularly at where his Honour said at [99]:

   I accept the father’s unchallenged evidence that comments by the children to him can only mean that the mother has informed them of and intricately involved them in these proceedings. There have been a number of coincidences of the children not attending the father when she or her family have had functions which conflict with the children’s time with him. I accept that the mother has discouraged telephone and Monday afternoon time. Further, she has actively thwarted such time.

6. This was a case in which the history of the mother’s capacity to recognise and support a meaningful relationship between the father and the children was thoroughly scrutinised from the time consent orders were made in October 2009 until the commencement of the final hearing. The period covered by the last affidavits was about eight weeks. We do not discern that either parent said that the other parent comported themselves during that eight week period any differently from the preceding two and a half years. 

7. As we have said, the Federal Magistrate was not required to refer to every piece of evidence that was before him and his failure to refer to these affidavits is not said to constitute error, nor, in our view could it.

8. To the extent that the father’s affidavit was filed and expressed to be in support of an application for an urgent change in residence of the children, only a page and a half was devoted to that application. His Honour was entitled to pay little regard to that aspect of the affidavit as it was an application which was never pressed.

9. In relation to the “various portions of evidence from Mr [H] and

   
   

   Dr [E]” which the father contends were excluded by his Honour, there is no identification or reference to transcript in the father’s summary of argument to assist in identifying the part in the trial where it is asserted this evidence was excluded if, indeed, it was excluded. The ground seems to be a contention that his Honour did not accept the evidence of “false memory” or did not make findings of fact in relation to it for which the father contended in the trial. We have already dealt with his Honour’s treatment of the false memory evidence in our discussion of grounds 1(a), (b), (d), (e) and (f). 

10. No appealable error is made out in this ground.

Ground 1(s)

(s) that the judgment fails to recognise Ms [Horton’s] wilful and deliberate nature in her acts of parental alienation, compounded by her attempts to hide and disguise such from the court and does not consider the risk to the children of such behaviours continuing in the future in the making of orders.

1. We have extracted earlier in these reasons his Honour’s findings about the mother’s contribution to the children’s rejecting behaviour and her non-compliance with spend time and communication orders. Clearly, his Honour gave due consideration to these important matters in the above extract as well as when his Honour said:

   92.Whilst it is highly likely that, either directly or subconsciously, these children are influenced in their relationship with each of the parents, I must take into account their high level of reluctance together with their ages in determining what weight I put on their stated views.

2. Similarly at paragraph 114(iii), his Honour found:

   That the mother has deliberately, blatantly, and for her own ends actively discouraged and participated in the failure of a consistent relationship between the children and their father. She has consistently and knowingly breached Court orders. She has colluded and conspired with the children and other persons to thwart Court orders and the children’s relationship with the father. I am able to find that there is little scope or hope that the mother will in the future be able to encourage and facilitate the children in a relationship with their father. I accept that the mother’s behaviour is influenced by her personal experiences within the relationship with the father. This does not however excuse her.

3. At [115] to [118] his Honour recognised and discussed, with little consolation, the impact of the shortcomings of both parties on the wellbeing of the children.

4. His Honour found:

   119.    After much consideration and on balance I am of the view that the children’s best interests are served by them remaining with their mother in [Northern Victoria]. Such a determination should in no way be seen as this Court endorsing or giving sanction to the mother’s behaviour in deliberately thwarting the children’s relationship with their father. Whilst the peculiar and dysfunctional dynamics within this family seem now to be entrenched, the mother’s obligation at law and as primary parent of these children remains firmly, unequivocally, and unambiguously to facilitate and encourage the children’s relationship with their father. It is a positive rather than passive obligation. That obligation remains and indeed may become more onerous as the children become older and capable of independent thought. It is not however for children to be the authors and determiners of their own destinies and particularly so where these children have endured the influences, personality traits, and lengthy litigation of their two parents. The ages of these children and their own personalities may make [the mother’s] job more difficult but it does not alleviate her of this important parental responsibility. I can put it no higher than simply to emphasise that she has failed as a parent in this regard thus far. I have considered making orders that she attend on some suitably qualified person or course to help address her difficulties. However, these facilities have been offered and tried before with no result. Nevertheless I am of the view that there are benefits for the children in maintaining a relationship with their father. I am satisfied that there must be Court orders with sufficient detail to ensure that time between the children and the father takes place. To put it another way, I cannot be confident that the children would voluntarily continue a regular and direct relationship with their father whilst being with the mother.

5. His Honour’s reasons and the passages to which we have referred or set out make it plain that he recognised and determined issues raised in the evidence in light of the relevant considerations and made findings which were properly open to him on the evidence. 

6. There is no substance to sub ground 1(s). Ground 1 has not been made out.

Ground 2

That the orders made are not in the best interests of the children in that they do not address significant risks to the children and they exacerbate already identified contributing factors to those risks rather than reducing them, in that the orders:

(a) do not address Ms [Horton’s] past failure to comply with court orders and provide no assistance or impetus for her to comply in the future;

(b) do not address the risks to the children from the mother’s campaign of   parental alienation;

(c)do not address the risks to the children from Ms [Horton’s]
pre-existing mental health issues;

(d)do not address the risks to the children from Ms [Horton’s] failure to protect the children with respect to [DP] or any similar risk;

(e) place the father in a position of increased difficulty, further exacerbating the problems already identified and further reducing the prospect of a beneficial relationship between the children and their father; and

(f) are to the detriment of the children in that the orders appear to reinforce the mother’s past behaviour of wilful and deliberate breach of court orders and thereby teaches the children that such is an appropriate course action (sic).

(g) do not provide for, and indeed inhibit, the children’s access to family therapy, thereby exacerbating the effects of both
Ms [Horton’s] parental alienation and her mental health difficulties and failing to mitigate the difficulties between the children and the father that are exacerbated by the decreased time ordered.

1. This ground, which challenges the orders made by the Federal Magistrate, is founded on an acceptance of the father’s asserted errors in ground 1 and which we have concluded are not made out. On that basis, there is little point in engaging further with this ground.

2. His Honour’s orders were consistent with his findings and consonant with his determination of the best interests of the children of the parties. 

3. No error has been established in this ground.

Conclusion

1. The father has not identified, nor persuaded us of any error raised in the grounds of appeal. The appeal will thus be dismissed.

Costs

1. As indicated, although the mother attended court during the appeal hearing, she incurred no costs and sought no order for costs.

I certify that the preceding one-hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Ainslie-Wallace & Bennett JJ)  delivered on 1 May 2014.

Associate: 

Date: