Polanski & Polanski

[2007] FamCA 662

FAMILY COURT OF AUSTRALIA

POLANSKI & POLANSKI [2007] FamCA 662

FAMILY LAW - APPEAL – From decision of Family Law Magistrate – Jurisdiction exercised by a single Judge

FAMILY LAW - APPEAL – Interim parenting orders – Discretionary judgment – Matters of weight – Appeal dismissed

FAMILY LAW - APPEAL – Application to adduce fresh evidence – Evidence would not demonstrate that order was erroneous – Application dismissed

Family Law Act 1975 (Cth), s 94AAA(3)

House v the King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
CDJ v VAJ (1998) 197 CLR 172

APPELLANT: MRS POLANSKI

RESPONDENT: MR POLANSKI

INDEPENDENT CHILDREN’S LAWYER: MR R KLIMEK

FILE NUMBER: PTW 3826 of 2002

APPEAL NUMBER: WA 03 of 2007

DATE DELIVERED: 5 JULY 2007

PLACE DELIVERED: Perth

JUDGMENT OF: THACKRAY J

HEARING DATE: 18 MAY 2007

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 30 January 2007

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr S Jones

SOLICITOR FOR THE APPELLANT: Kott Gunning

COUNSEL FOR THE RESPONDENT: Mr R Bannerman

SOLICITOR FOR THE RESPONDENT: Bannerman Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr R Klimek

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Laird Klimek & Associates

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Polanski & Polanski.

Orders

1.   That the application to adduce further evidence be dismissed.

2.   That the appeal be dismissed.

3.   That within 28 days of the date hereof each party and the Independent Children's Lawyer be at liberty to file and serve any written submissions in relation to the costs of the appeal.

4.   That each party and the Independent Children's Lawyer have a further 28 days in which to file and serve any written submissions in answer to any submissions filed.

5.   That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party and the Independent Children's Lawyer.

FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 03 of 2007
File Number: PTW 3826 of 2002

MRS POLANSKI

Appellant

And

MR POLANSKI

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On 30 January 2007, Magistrate Duncanson dealt with Mr Polanski’s application for an extension of the time he was spending with his 6-year-old daughter Irene.  He had been seeing her for only three hours each week on a supervised basis.  Her Honour determined, on an interim basis, that Irene’s time with her father should be extended by two hours and that only a portion of the time needed to be supervised. 

2. Irene’s mother, Mrs Polanski, wanted all of the time to be supervised and has appealed against her Honour’s decision.   

3. The appeal falls to be determined by me as a single Judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).

4. I am also required to determine the mother’s application to adduce further evidence.  That application will be best considered after I have discussed the grounds of appeal and the evidence that was available to her Honour. 

Background

1. The ex tempore reasons delivered by the Magistrate do not contain any findings in relation to the factual background.  This is not surprising for a number of reasons. 

2. First, it is common ground that the matter was dealt with in a list containing multiple cases.  The record indicates it was not finally called on until mid-afternoon and was not concluded until late in the day (at which time, her Honour still had at least one other matter awaiting determination).

3. Furthermore, it is apparent this was but one of a number of hearings her Honour had conducted in relation to the parties’ dispute.  Her Honour had previously dealt with the same issues on three different occasions. 

4. In such circumstances it would not be expected that her Honour would make detailed findings setting out the relevant background.  In any event there appears to be no controversy about the following:

   ·    The father and mother (now aged 36 years and 34 years respectively) were married in 1994 and separated in May 2001.  They had one child, Irene, who was born in August 2000.  Irene was therefore only 9 months of age when the parties separated.

   ·    In July 2002, the father and mother consented to orders by which Irene was to reside with the mother and the mother was to have sole parental responsibility.  An order was also made for the father to have reasonable contact with Irene at such times as agreed between the parties.  It is common ground that most of the time he was able to spend with Irene was under the mother’s supervision. 

   ·    In June 2005, Irene, who was then not quite five years of age, was taken by the mother to see […], a Clinical Psychologist.  The clinical psychologist has continued to see Irene regularly ever since.    

   ·    In August 2006, the father commenced the current proceedings.  He sought a variety of interim orders relating to Irene, including unsupervised time with her each alternate weekend and for half of school holidays. 

   ·    The parties attended a Case Assessment Conference on 25 August 2006, following which a Family Consultant provided a brief oral report to the Court.  Magistrate Duncanson then made an order for the father to spend time with Irene for not less than 3 hours each week, to be supervised by “Mother Hen”.  At the same time, she made an order for the father to attend a parenting course, as recommended by the Family Consultant.    

   ·    On 8 September 2006, the mother filed documents in response to the father’s application in which she sought, inter alia, that the father spend time with Irene for three hours each Saturday, supervised by Mother Hen.  It will be noted that the relief she was seeking was the same as had been ordered on 25 August 2006.

   ·    The matter again came before Magistrate Duncanson on 22 November 2006, by which time her Honour had available reports from the Mother Hen supervisors.  Her Honour made an order continuing the operation of the previous order relating to the time Irene was to spend with the father.  She ordered the father to undergo random drug urinalysis and ordered both parties to attend the “Mums and Dads Forever” program.

   ·    The matter was next before her Honour on 30 January 2007, at which time she made the orders which are the subject of the present appeal.  The order of particular importance is that which provided that “the father spend time with the child for five hours each week … with the first and last half hour to be supervised by Mother Hen…”  In other words, her Honour extended the time the father was spending with Irene by two hours and required only the commencement and conclusion of the visit to be supervised. 

   ·    Her Honour also ordered that the new contact arrangement was to come into place after the clinical psychologist had told Irene about the changes.  She ordered the father to attend on the clinical psychologist as soon as practicable and also ordered his lawyer to provide a copy of the Mother Hen reports to the clinical psychologist.  She also granted injunctions restraining the father from consuming drugs or alcohol during the time he spent with Irene or for 12 hours prior to that time. 

5. In addition to updating affidavits by both the father and the mother, her Honour had available further detailed reports from the Mother Hen supervisors concerning the time Irene had been spending with her father.  She also had before her an affidavit by the mother’s solicitor, attaching a recent report from the clinical psychologist. 

The grounds of appeal

1. It is convenient to set out the grounds of appeal prior to highlighting the salient features of her Honour’s judgment.  Whilst the submissions made on behalf of the mother arguably ranged more widely, the grounds of appeal were narrow and succinct.  I reproduce them in full:

   1.The learned Magistrate placed too much weight upon the Reports from Mother Hen.

   2.The learned Magistrate failed to place sufficient weight upon the Report of […], Clinical Psychologist, and the child’s distressed behaviour before and after contact as described by the Mother.

Her Honour’s judgment

1. Her Honour began her reasons for judgment by noting she had very carefully read the affidavit evidence and had read with care the report from the clinical psychologist.  She also noted that she had read with interest and care a lengthy report from Mother Hen concerning the contact visits. 

2. Her Honour then noted that when the matter first came before her in August 2006, orders had been made for very limited contact for three hours each week on a supervised basis.

3. Her Honour noted that concerns had been raised about the welfare of Irene whilst in the care of her father.  She noted that when the matter had come back before her in November 2006, notwithstanding a “positive report by Mother Hen”, she had been persuaded to continue the supervision arrangements “until certain other achievements had been made by [the father] towards persuading the Court that he was able to care for [Irene] without supervision”.  Her Honour then went on to note that the father had enrolled in the Mums and Dads Forever program; had commenced counselling; had clear urinalysis tests; had obtained independent accommodation and that his “supervised time with [Irene] as reported by Mother Hen has been highly successful”.

4. Her Honour then recorded she had carefully read the concerns expressed by the clinical psychologist in her assessment of Irene.  Her Honour went on to say about the clinical psychologist,

   She does say in her summary that [Irene] presents as anxious and unsettled about supervised contact without her mother and has not yet adapted to the change.  She does go on to say this is exacerbated by the fact that her parents at present do not agree about what is best for [Irene] and [Irene] is aware of this at an emotional level.  I suspect, at least I think that is part of the problem, that [Irene] is well aware of the anxiety of perhaps her mother and certainly she needs to have an opportunity to develop a closer relationship with her father that is free from any anxiety.  The only thing I would say about [the clinical psychologist’s] report is that [the clinical psychologist] has not had an opportunity of reading the very positive Mother Hen report which has been made available to the court today.

5. Her Honour indicated that she proposed ordering that the Mother Hen report be made available to the clinical psychologist, “so that she can be aware of it”.  She then went on to make an observation about Irene’s behaviour on 23 December 2006, noting that whilst the mother had “had a very difficult time with [Irene’s] tantrum”, this came after the child had a very late night.  She went on to observe:

   It does appear that whenever [Irene] goes to see her father, she is very pleased to see him according to the reports.  There is a warm hug from her father.  When she leaves on occasions she has said “love you, Dad”. 

6. Her Honour then observed that during the course of the contact visits, “there has been no more difficulties than anyone can expect with a 6-year-old who may be tired or it may be on a hot day”.

7. Her Honour concluded:

   The report from Mother Hen is, in my view, highly persuasive.  The times [Irene] has spent with her father appear to be happy.  He has behaved appropriately throughout.

8. Her Honour went on to observe that she was not disregarding the views of the mother, who had indicated that she had difficulties with Irene both before and after the time she spent with her father, but her Honour said:

   I think that is something we are just going to have to work through in time.  I am of the view that the time [Irene] spends with her father should now progress to unsupervised time.

9. Her Honour then observed that the Family Consultant had recommended that before Irene spent unsupervised time with her father, he should meet with the clinical psychologist and receive “any guidance she can give him”.  She went on to say that she intended to have a Mother Hen supervisor present for the first and last half hour of the contact visit so that there could be a report provided of what had been observed.  She explained that she was proposing that the father have four hours on an unsupervised basis, so that he would have “an opportunity to have some meaningful time with [Irene]”.  She said:

   It appears to me that she has enjoyed the time she has gone fishing, the time she has had with other children around and if four hours is available then [the father] is able to have other children to play over and to take her on outings. 

10. Having announced this would be her decision, her Honour went on to say that she would wish to receive a report in “perhaps three months’ time”.  The next part of the typed transcript did not make a great deal of sense, which was surprising given her Honour’s usual clarity of expression.  As the parties have since been made aware, I called for the relevant tape, which was somewhat unclear, but when carefully considered indicated that what her Honour also went on to say was:

    I will, I should say, [counsel for the mother], give your client liberty to re-list because I would want to know if there are any significant problems …

Appellate principles

1. The mother’s counsel did not shy away from the fact that this is an appeal against a discretionary judgment.  He properly drew attention to the well-known principles enunciated in cases such as House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513.

2. Given that the present appeal relates entirely to matters of “weight”, it is particularly useful to highlight what was said by Stephen J in Gronow at 519:

   The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

3. In House v The King (supra) Dixon, Evatt and McTiernan JJ said, at 504-505:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred. 

The reports of the clinical psychologist and the Mother Hen supervisors

1. Given the submission that too much weight was given to the Mother Hen reports and too little to the clinical psychologist’s it is necessary to consider all of the reports in some detail.

2. The up-to-date report of the clinical psychologist was attached to an affidavit of the mother’s solicitor.  Neither the affidavit, nor the report, provided any details of the clinical psychologist’s qualifications or experience, save that she was described as a registered clinical psychologist and her degrees were given as BA (Hons), and M Psych Clin.  There is, nevertheless, no indication that the clinical psychologist’s expertise to provide expert opinion concerning Irene was challenged. 

3. The clinical psychologist’s report noted she had seen Irene on sixteen occasions.  She said:

   [Irene] was initially referred by her GP, […] in June 2005 for assistance with her distress in relation to her father.  Reportedly [Irene] became very distressed when her father did not attend for contact.

4. The report went on to say that since contact with the father commenced, the clinical psychologist had mostly been seeing Irene fortnightly and that Irene’s mother had been seen three times.  She had also seen the father on one occasion, after earlier unsuccessful attempts to meet him. 

5. The clinical psychologist then set out a brief history of the matter, which presumably was provided by the mother.  The history recorded that following the parents’ separation, the father’s time with the child had been in the mother’s presence and only for short periods.  The mother reported that the father, on occasions, did not attend for contact:

   … and that this made [Irene] extremely distressed.  Reportedly, [Irene] was also distressed when her father was unreliable in other ways.  Recently, [Irene’s] father’s behaviour during contact escalated and became aggressive such that [Irene’s] mother feared for [Irene’s] and her own safety and called the police.

6. The report went on to note that the mother obtained a violence restraining order against the father and that the father had then applied “for shared residence of [Irene]”.  I pause at this point to note that I am unable to see any indication in the documentation to suggest that the father had ever applied for “shared residence”.

7. The clinical psychologist’s report went on to make a brief assessment of Irene.  I consider it important to set out her assessment in full:

   [Irene] always presents as friendly and talkative.  [Irene] is a sensitive girl with strong feelings and is currently presenting as anxious and unsettled.

   She has a strong attachment to her mother and is very close to her.  Her mother is her primary attachment figure and [Irene] views her as the person who is responsible for her and does all the care-taking and all the comforting.  This has been [Irene’s] life experience; her mother has been the sole person looking after her.  This means that [Irene] shows all her distress to her mother.  [Irene] is very close to her mother and at times of distress and anxiety regresses to sleeping in her mother’s bed.

   [Irene] has a more ambivalent attachment to her father.  She loves him and enjoys contact with him but does not yet see him as a trustworthy caretaker.  This again reflects her life experience of never having being left in her father’s care.  She would prefer to see her father in her mother’s presence as this is what used to happen.  This is no longer appropriate but the change to supervised contact with her father without her mother has been confusing and anxiety arousing for [Irene] and she has not fully adapted to this yet.

   In sessions, [Irene] often expresses anxiety and distress about the contact with her father.  For example, she has said that “I did like him coming to our house” and expressed fear about sleeping at Dad’s place after he bought her a bed.  More recently, [Irene] has become more unsettled and repeats that she does not want to talk or think about “Daddy, cos it makes me said”.  A common theme in [Irene’s] play is a family where the father is dead because he has been shot.  All this indicates that [Irene] is anxious about the contact with her father.  This arises from the changed nature of the contact, from [Irene’s] lack of trust in her father in a parenting role and from the pressure [Irene] feels as a consequence of her parents not agreeing about what is best for her in relation to contact.

1. The clinical psychologist then summarised her views as follows:

   [Irene] presents as anxious and unsettled about the supervised contact with her father without her mother and has not yet adapted to this change.  This is exacerbated by the fact that her parents at present do not agree about what is best for [Irene] and [Irene] is aware of this at an emotional level.

   [Irene] needs to develop a relationship with her father that is free from anxiety.  For this to happen [Irene] needs contact to remain supervised for now as a change would increase her anxiety.  [Irene] also needs her parents to work out an agreed upon plan for contact for twelve months.  This would give [Irene] more security.

2. The clinical psychologist recommended that Irene’s time with her father continue to be supervised “to give her time to learn to trust him in a parenting role”.  She also recommended that the parents attend joint sessions (which she was prepared to conduct) to work towards an agreed plan for contact between Irene and her father for a 12 month period.

3. I turn now to consider the many reports her Honour also had available from various Mother Hen supervisors.  The first of these concerned the visit on 9 September 2006.  I do not propose to repeat all that was said in this and subsequent reports, since they are very detailed.  It is nevertheless important to highlight some of the more significant matters described. 

4. The first report indicates that on 9 September 2006 the mother needed considerable reassurance about Irene’s safety at the commencement of the visit.  The supervisor was “forewarned [by the mother] of possibly inappropriate behaviour of the Contact parent”.  Irene was observed to be “slightly hesitant” at the commencement of the visit.  The report described “initial kisses and hugs” when the father met Irene and then described a pleasant shopping trip.  Upon returning to the father’s residence, Irene advised that she wanted to go home, but the supervisor encouraged her to remain for the full length of the three-hour visit.  She noted, “the visit had been going so well, without any indicators of the behaviour expected by the mother”.  The visit ended with “once again no hesitation in hugs and kisses from either party”.

5. On the next visit on 16 September 2006, the new Mother Hen supervisor noted that upon collecting Irene, the mother “expressed her concern regarding the potential for [the father’s] driving to be erratic when annoyed”.  On this occasion Irene again appeared happy to see her father. 

6. On the next visit, the same supervisor observed that father and daughter “appear to get along well and [Irene] seemed to enjoy the contact with her father”. 

7. A different supervisor accompanied the father and Irene on the visit on 7 October 2006.  Irene told the supervisor, “I have Mum’s mobile number on my arm if I want to go home early”.  Irene nevertheless was reported as appearing happy to accompany the supervisor to visit her father and was happy when he picked her up for a hug.  She summarised the visit as “lovely access time spent together”. 

8. The supervisor, in speaking of the next visit, said:

   [Mr Polanski] has a loving father/daughter relationship with his daughter.  [Irene] talks freely to her father and there have been no leading questions from [Mr Polanski].  [Irene] seems happy and relaxed in her father’s company.

9. There was then a break in the visits between father and daughter.  It seems the regular visits did not resume until after the matter went back to Court on 22 November 2006 and Magistrate Duncanson specifically ordered that the original contact order remained in full force and effect. 

10. The report from the Mother Hen supervisor concerning the next visit on 2 December 2006 did not indicate any reluctance on the part of Irene to visit her father. 

11. There was meant to be a further visit on 9 December 2006, but this was cancelled by the mother, who said that Irene had been crying the previous night and did not want to go on the visit.  The supervisor endeavoured to encourage the mother to allow the visit to proceed.  In the process, she spoke to Irene who told her:

    I don’t want to go, we are staying in a hotel and there is a pool, the kids are coming over and we are going to the pageant tonight.  I don’t want to go.  I want to be able to play. 

12. The mother then endeavoured to clarify these comments with the supervisor.  In the process, the supervisor asked, “What does the court order say?”, to which the mother replied, “if she doesn’t want to go, she doesn’t have to”.   The order said no such thing.

13. The visit scheduled for 16 December 2006 occurred in accordance with the order.  The supervisor observed Irene to be happy at the commencement of the visit.  On several occasions during the visit, Irene asked her father to pick her up. After a couple of hours, Irene said she wanted to go home, to which the father responded that he wouldn’t stop her but she should ask the supervisor.  Irene decided to stay when the supervisor suggested they play a game. 

14. On the next visit, 23 December 2006, Irene volunteered to the supervisor that she had “stayed up past midnight”.  This was confirmed by the mother.  The supervisor recorded that the mother kissed Irene goodbye and said “I love you”.  As the supervisor and Irene started to walk away, the mother said, “See, she is hesitate”^[sic].  The supervisor’s comment on this in her report was, “Yes [Irene] was slow, but I saw nothing in it”.  When Irene saw her father she jumped into his arms for a hug. 

15. Some time into the visit on 23 December 2006, Irene became upset when her father told her that the toys he was buying were to stay at his place so that she would have something to play with when she next visited.  The father tried to reason with her but Irene remained upset and did not want to hold her father’s hand.  From time to time she began crying.  The supervisor endeavoured to reason with Irene, explaining that she believed, given previous events, it would be appropriate for the toys to be left at her father’s home.  The supervisor even went so far as to tell Irene she was acting “like a spoilt child”.  The father comforted Irene and she was then prepared to hold his hand.  Irene thereafter appeared happy and father and daughter hugged each other when saying their farewells.  The supervisor’s summary noted, “with such a late night last night, [Irene] appeared tired today”.

16. There was a special visit between father and Irene on Boxing Day 2006.  The supervisor summarised the visit as  being “a lovely access”.

17. The supervisor provided detailed reports of the contact visits on 6 January, 13 January and 20 January 2007 (about 5 pages of information).  The overall impression was of very satisfactory visits with, for example, the supervisor summarising the visit of 13 January 2007 as:

    Today was a lovely access with good interaction between [Irene] and her father [Mr Polanski].  [Irene] was well behaved and appeared to enjoy the activity and extra time with her father.  Appearing to be a father/daughter relationship developing.

Did her Honour err?

1. Counsel for the mother referred to a number of matters that had given the mother cause for concern relating to the father.  Amongst other things, counsel highlighted the alleged ambivalent nature of the father’s previous relationship with Irene, his emotional/psychiatric problems, his aggression, the drug-taking of people with whom the father had shared accommodation and the father’s own alleged “previous substance abuse”.  Whilst all of these things were mentioned in submissions, it does not seem to me that they have any direct bearing on the narrow issues raised in the grounds of appeal. 

2. It is not suggested that her Honour ignored or made any inaccurate findings in relation to the matters about which the mother had expressed concern.  Nor is it suggested that her Honour erred in the way in which she had handled these allegations.  It will be seen from the citations from her Honour’s judgment that she had been cognisant of the issues that had troubled the mother.  She had quite deliberately decided previously not to allow the father to commence unsupervised contact visits until he had made “certain other achievements ... towards persuading the court that he was able to care for [Irene] without supervision”. 

3. The grounds of appeal primarily relate to issues concerning [Irene’s] alleged anxiety about spending time alone with her father.  Given the wide discretion available to her, it could not be said that her Honour erred in placing more weight on the many reports of the Mother Hen supervisors than she did on the mother’s description of [Irene’s] alleged behaviour after the visits. 

4. In my view, the only arguable basis upon which her Honour’s judgment could be challenged was the way in which she dealt with the concerns and recommendations of the clinical psychologist who, it was asserted, had “established a close, therapeutic relationship” with Irene over a period of 18 months. 

5. In considering the weight her Honour gave to the clinical psychologist’s recommendation, it is true she said, “The only thing I would say about [the clinical psychologist’s] report is that [the clinical psychologist] has not had the opportunity of reading the very positive Mother Hen report”.  In fact, that was not “the only thing” her Honour said about the clinical psychologist’s report.  Not only did she say at the outset that she had read the report carefully, but she summarised it in such a fashion as to indicate that she had understood precisely the clinical psychologist’s concerns.  She went on to say that she suspected that at least part of the problem was “that [Irene] is well aware of the anxiety of perhaps her mother”.  Such a view was well open to her Honour. 

6. Her Honour’s reasons make it clear that she was not merely refusing to follow the recommendation made by the clinical psychologist because the clinical psychologist had not read the Mother Hen reports, but because it was her Honour’s view, based on all of the evidence, that at least part of the problem was Irene’s awareness of the anxiety of the mother.  Her Honour concluded that it would be better for Irene to have an opportunity to develop a closer relationship with her father that was “free of anxiety”.

7. In my view, it was entirely appropriate for her Honour to draw attention to the fact that the clinical psychologist had apparently not seen the Mother Hen reports.  It is surprising that the person providing therapy to the child relating to anxieties about her father had not been provided with reports about how the contact arrangements were progressing.  In drawing attention to this fact, her Honour was merely emphasising the importance of the observations that had been made by a number of different supervisors who had had the opportunity to spend many hours observing Irene with her father. 

8. It is, of course, improbable that any of the supervisors had the professional qualifications or expertise of the clinical psychologist.  On the other hand, it is equally true that the clinical psychologist had not had the benefit of seeing Irene interacting with her father.  Her Honour would be forgiven for thinking that this was the best means to appreciate the nature of their relationship, rather than relying upon a mixture of what had been said by the mother and what the clinical psychologist had been told by Irene when brought in to see her by the mother.    

9. In determining this appeal, it is important to keep in mind that the order made was an interim order only.  Her Honour said she was anxious to receive a report concerning the progress of the unsupervised contact in three months’ time.  Importantly, she also put in place an arrangement that would ensure that the commencement and conclusion of each visit were under supervision.  This was a sensible proposal, given the extent of the mother’s concerns, because it would allow handover to be monitored by an independent person who could report any concerns that might arise. 

10. Even more importantly, her Honour specifically said she wanted to be informed if there were any serious issues that arose after the introduction of the unsupervised contact.  Her Honour had, by that stage, been dealing with the family for many months.  She was alert to all of the issues that had been raised and was indicating her preparedness to reconsider the matter if difficulties arose.  It is noteworthy that by the time the matter came on for hearing before me, many months later, the mother had not availed herself of the opportunity to relist the matter to draw attention to any difficulties.   

11. In these circumstances, I am not persuaded that her Honour erred in coming to the decision that she did. 

12. Before concluding, I should say that I found no substance whatever in the submission that “her Honour’s order that [the clinical psychologist] be provided with the Mother Hen reports” suggests that her Honour was ambivalent about the correctness of her decision.  As I have already intimated, I would have thought it most important that the child’s therapist have the benefit of reading the reports.  It would give her a basis for challenging the assertions that were being made by the mother about Irene’s anxiety and would allow the clinical psychologist to consider the child’s behaviour in therapy in the context of what others had observed.  It could also have been the case that her Honour wanted the clinical psychologist to view the reports so that she might understand why her Honour had not followed her recommendations. 

Application to introduce further evidence

1. The mother made application to introduce into evidence on the hearing of the appeal a further affidavit of her solicitor, to which was attached a letter from the clinical psychologist.  On this occasion, the affidavit contained the clinical psychologist’s curriculum vitae, which shows she has had substantial experience as a clinical psychologist and has on numerous occasions been engaged as an expert to assess and provide reports on children.  The letter from the clinical psychologist was very brief.  It said only, “I have read the Mother Hen reports and my opinion and recommendations as stated in the report dated 24/1/07 have not changed”.

2. The principles relating to the introduction of fresh evidence on appeal were set out in CDJ v VAJ (1998) 197 CLR 172 at [104] where the majority of the High Court (McHugh, Gummow and Callinan JJ) said:

   In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned.  This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry.  Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.  In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules.  In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.

3. Their Honours went on to say at [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.

4. Were it the case that her Honour had not accepted the clinical psychologist’s views only because she had not read the Mother Hen reports, it could conceivably be argued that there might be some utility in admitting this further material into evidence.  However, as I have pointed out, this was not the primary basis on which the learned Magistrate did not accept the clinical psychologist’s views.  Her Honour clearly respected the view of Irene’s therapist, but formed the view that the reports from Mother Hen made fairly clear there would be no need for the concerns expressed.  In case her Honour’s confidence was misplaced, she put in place a mechanism to monitor and review the arrangements and for the matter to be brought back if problems arose.  Admission of the additional material in these circumstances would not demonstrate that the order under appeal is erroneous and the application will therefore be dismissed. 

5. In coming to my decision on the application to adduce further evidence I have found it unnecessary to consider the extent to which it is appropriate to permit an expert to give evidence that is entirely confined to a statement of opinion on what in reality was “the ultimate issue” – as to which see the discussion and authorities mentioned in Cross on Evidence (6^th Australian Edition at [29105] to [29125]). 

Orders

1. For the reasons above, I propose to make the following orders. 

   1.That the application to adduce further evidence be dismissed.

   2.That the appeal be dismissed.

   3.That within 28 days of the date hereof each party and the Independent Children's Lawyer be at liberty to file and serve any written submissions in relation to the costs of the appeal.

   4.That each party and the Independent Children's Lawyer have a further 28 days in which to file and serve any written submissions in answer to any submissions filed.

   5.That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party and the Independent Children's Lawyer.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray.

Associate: 

Date:  5 July 2007