Redmond & Redmond
[2014] FamCAFC 155
•28 August 2014
FAMILY COURT OF AUSTRALIA
| REDMOND & REDMOND | [2014] FamCAFC 155 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders and the trial judge’s subsequent refusal to grant a stay of those interim orders pending appeal – Where the final trial is due to commence some 12 weeks after the hearing of these appeals – Where the father has lodged eight appeals in this Court in the past two years and final trial dates have been lost as a result – Where the mother and the Independent Children’s Lawyer opposed the appeals – Where no merit in the appeals – Where orders were made following oral argument and reasons for judgment were delivered subsequently so as to preserve the final trial dates – Appeals dismissed and no order as to costs. |
| Family Law Act 1975 (Cth) |
| Goode & Goode (2006) FLC 93-286 Harris & Caladine (1990) FLC 92-130 SS & AH [2010] FamCAFC 13 |
| APPELLANT: | Mr Redmond |
| RESPONDENT: | Ms Redmond |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Dooley |
| FILE NUMBER: | BRC | 4493 | of | 2011 |
| FIRST APPEAL NUMBER: | NA | 26 | of | 2014 |
| SECOND APPEAL NUMBER: | NA | 29 | of | 2014 |
| DATE OF ORDERS: | 5 August 2014 |
| DATE DELIVERED: | 28 August 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Murphy & Kent JJ |
| HEARING DATE: | 5 August 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 15 May 2014 & 11 June 2014 |
| LOWER COURT MNCS: | [2014] FamCA 309 [2014] FamCA 382 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders made 5 august 2014
Appeal NA 26 of 2014 be dismissed.
Appeal NA 29 of 2014 be dismissed.
To the extent that leave is required to appeal against orders 1 and 10 dated 15 May 2014, leave is refused.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Redmond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 26 of 2014; NA 29 of 2014
File Number: BRC 4493 of 2011
| Mr Redmond |
Appellant
And
| Ms Redmond |
Respondent
REASONS FOR JUDGMENT
Mr Redmond (“the father”) and Ms Redmond (“the mother”) have been engaged in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning their child E born in 2006, since such proceedings were commenced in the then Federal Magistrates Court in 2011, and subsequently transferred to this Court.
The parenting proceedings have been listed by Forrest J for a final trial before his Honour for three days commencing on 31 October 2014.
Given the imminence of the final trial, at the outset of the hearing of these appeals by the father against interim orders made by Forrest J on 15 May 2014, and against his Honour’s subsequent refusal on 11 June 2014 to grant a stay of those orders pending appeal, we raised with the father the utility of these appeals.
Whilst the father was self-represented he is a qualified lawyer and until his relatively recent bankruptcy he had operated a legal practice on his own account as principal for some years. The father confirmed to us his understanding that at the final trial (commencing only some 12 weeks after the hearing of these appeals) all issues relating to parenting orders would be re-visited. He accepted that, as this would occur in a trial setting, there would not be the limitations inherent in the circumscribed process of an interim hearing from which the subject orders emanate.
Moreover, in this context we raised with the father the prospect that pursuit of these appeals might jeopardise the final trial dates. Allowing for our judgment upon these appeals being reserved and taking into account the father’s contention that the orders of Forrest J be set aside and that there be a remitter of the interim proceedings for hearing by another judge, there was a clear risk to a final trial being undertaken only some 12 weeks hence.
Notwithstanding these features the father pursued these appeals. As the outcome of the appeal against the trial judge’s refusal to grant a stay of the interim orders was largely dependent on the outcome of the appeal against those interim orders, both appeals were heard together.
For her part the mother, as did the Independent Children’s Lawyer (“the ICL”) appointed pursuant to s 68L of the Act to independently represent the child’s interests in the proceedings, opposed the father’s appeals and sought to preserve, as far as possible, the final trial dates. Thus the mother and the ICL sought that, if possible, we make orders reflecting our determination of these appeals and deliver our reasons subsequently if necessary. The position of the mother and the ICL in this respect is informed by the feature, as the mother sought to emphasise in her summary of argument, that these two appeals bring the total number of appeals to this Court the father has lodged over the past two years to eight. As we understood the mother’s submission, on two or possibly three occasions final hearing dates had been lost.
The father opposed the course proposed by the mother and the ICL that we determine the appeals and make orders giving effect to that determination and deliver reasons for judgment subsequently. Again, we were satisfied that the father clearly understood the potential ramifications for the final trial proceeding as scheduled if we acceded to his approach; less clear was the father’s identification of any basis for his opposition.
In this context, relevant to both the father’s experience as a (legally-trained) self-represented litigant and the position urged by the mother, is that to date the father has engaged in significant litigation. In the Deed of Settlement signed on 13 November 2013 between the father, the mother and X School (where the child attends school and with whom the father is in dispute) referred to by Forrest J, the raft of litigation commenced by him is listed: it reveals litigation in the Queensland Civil and Administrative Tribunal; the Federal Circuit Court; the Federal Court; the Supreme Court of Queensland; and the appeal to that court’s Court of Appeal.
We note that in the father’s appeal to the Queensland Court of Appeal (in which the mother and X School were the respondents) the court determined that harassment of the mother by the father lay at the heart of the appeal which was held by that court to be vexatious. The father’s appeal was struck out.
We make it clear that we have proceeded on the basis that the father has been given the benefit of any doubt about his purpose in pursuing these appeals, and in opposing the course proposed by the mother and the ICL as to the making of orders and publishing of reasons later.
However, in circumstances where we resolved after hearing oral argument that there was no merit in these appeals, we determined that there was merit in the course proposed by the mother and the ICL so that the final trial dates would be preserved.
We therefore made orders on 5 August 2014 dismissing the appeals and advised the parties our reasons for judgment would be delivered subsequently. These are our reasons for those orders.
The Appeal against Interim Parenting Orders
The central issues between the parties as agitated in the interim hearing before Forrest J on 15 May 2014 which are relevant to this appeal may be summarised as follows.
The father’s applications were that:
i)Earlier orders made by consent for the mother to have sole parental responsibility for the child’s education; and for the child to continue to attend [X School]; be set aside on the father’s contention that he no longer consented to such orders – or had determined to withdraw his consent;
ii)A psychiatrist be appointed for the purpose of preparing a family report; and
iii)Earlier orders allegedly restraining the parents from contacting each other unless there is “an urgent parenting matter” be “enforced”.
The mother sought mandatory injunctions requiring the father to remove material published on several internet websites and injunctions restraining him from publishing material of that type on any internet website.
The mother applied to reduce the child’s time with the father and for it to occur under supervision at a contact centre. It was her case that the father’s mental health had deteriorated and that supervision was in the child’s best interests. The ICL supported the mother’s application.
Central to the complaints the father agitated in this appeal Forrest J made orders:
a)That the father take all the necessary steps to remove material on certain internet websites listed in the orders, relating to the mother, the child, X School, or any of that school’s employees, which were either caused or permitted to be published by him (order 1);
b)That an injunction be issued restraining the father from causing any information regarding the mother, the child, X School or any of the school’s employees, to be published on any internet website (order 2);
c)That all previous orders for the child to spend time with the father be discharged and until further order, the father begin spending supervised time with the child at a contact centre for a period of two hours each weekend (orders 4 and 5);
d)That prior to the final hearing of the competing parenting orders, the ICL use his best endeavours to obtain an updated psychiatric report from Professor V in respect of the mother and the father (order 7).
In addition, his Honour refused an application by the father to have a psychiatrist appointed to undertake and prepare a family report.
Grounds of Appeal
The father advanced the following as “grounds of appeal” notwithstanding that some of them do not accurately meet that description:
1.The justice erred in his determination that his orders made were in the best interests of the child under the circumstances made and upon the evidence available to him.
2.The justice erred in that the orders made were not supported by the evidence before him, and incapable of being followed.
3.The justice erred that the appellant could not withdraw his consent of a court order by consent, which was not a final order.
4.The justice failed to test any evidence before him, even at a basic level at the interim hearing, thus denying the appellant any procedural fairness.
5.The justice erred in not appointing a psychiatrist to undertake the family report.
6.The justice failed to enforce the current parenting orders before the Court.
7.The justice erred in that he did not provide sufficient reasons for his decisions.
8.The justice erred in that his decisions were for an indeterminate time frame.
Before dealing specifically with each of these grounds we observe that permeating several of them as they were argued by the father – both in his summary of argument and his oral argument on the appeal (particularly grounds 1, 2, 4 and 7) – there appeared to be misapprehension by the father as to the place of disputed issues of fact as between the parties which remained untested on an interim hearing. In purported reliance upon Goode & Goode (2006) FLC 93-286 the father’s arguments seemed to proceed on the footing that the trial judge ought to have ignored or disregarded any allegations of fact which were adverse to the father by reason of his disputing them and which could not be determined in an interim hearing.
This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.
In SS & AH [2010] FamCAFC 13 Boland and Thackray JJ said at [99]-[100]:
99.We also should keep in mind what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.
100.The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Here, given that the disputed issues of fact were of central importance to the child’s welfare it was necessary for Forrest J to weigh the probabilities and to determine whether controversial assertions ought be acted upon. As will be discussed Forrest J did so having regard to:
a)The expert evidence of the father’s psychiatrist Dr L;
b)The expert evidence of the single expert psychiatrist Professor V;
c)Evidence within the father’s own case;
d)Evidence of the mother and the witness, Ms M, albeit disputed by the father, relevant to the child’s welfare; and
e)The father’s conduct during the hearing.
The relevant aspects of that evidence will be discussed with reference to the specific grounds of appeal.
Grounds 1 and 2
These grounds may conveniently be dealt with together. They embrace a contention by the father that his Honour failed to take account of medical evidence that the father was receiving treatment in relation to his mental health.
However, there was no such evidence before his Honour. We asked the father to take us to the evidence in the Court below which founds the contention but he was singularly unable to do so. Ultimately, the father conceded there was no such evidence before his Honour.
Further, and in any event, the father misrepresented the medical evidence which his Honour had before him. For example, the father contended that his treating psychiatrist Dr L had effectively given him a “clean bill of health”. However, reference to Dr L’s report attached to his affidavit sworn on 4 April 2014 demonstrates otherwise.
For example, Dr L’s opinions as expressed in his report include:
The most concerning issue then is the emotionally unstable, dysphoric and distressed state of his mood in relation to the issues before the Court.
Under the heading:
Does [the father] suffer from an “Adjustment Disorder” as identified by [Professor V] and if so, explore this disorder and how it affects:-
·his ability to engage in full-time employment;
·ability to care for and parent the child.
Dr L records the following:
Under the subheading “Axis I: Clinical Syndromes”:
· “[The father’s] current circumstances clearly indicate that he has struggled to cope with what are assessed as severe and overwhelming stressors in relation to the issues before the Court.
This condition is chronic because of the chronicity of the stressors caused by the conflict with the Mother of his daughter which remain unresolved, coming up some two years since parental separation. There is no doubt that in the history of the child’s mental wellbeing and stability that the resolution of the issues before the Court must occur as soon as possible.
…
I agree with the diagnosis of an Adjustment Disorder, as outlined by [Professor V] in the medicolegal report dated 02 November 2012. There is no doubt about this man’s experience of significant levels of subjective distress resulting in functional impairment from emotional, behavioural and psychological symptoms.
[The father] is at risk of developing Major Depression. …”
Under the subheading “Axis V: Highest Level Functioning”:
· “It is my opinion that the longer the stressors outlined above persist, the greater the risk that the Adjustment Disorder will impair day to day personal and occupational functioning and the greater the risk of the development of a more severe psychiatric disorder in the way of Major Depression, a mood disorder which requires assertive assessment and treatment.
· I therefore think it essential that [the father] have a General Practitioner with whom he consults on a regular basis to monitor his symptom profile, his mood, his emotionality and his general medical needs and health parameters including blood pressure (for example) so than [sic] if a Mental Health Plan is required and further psychological assessment and support and treatment is necessary, that he has access to that in a timely fashion with a mental health professional with whom he has developed a rapport.”
It is relevant to note that Dr L assessed the father at a time when the father was in an apparently stable relationship with Ms M whom he then planned to marry. However, in contrast his Honour had before him the evidence of Ms M as to the breakdown of her relationship with the father and what she said about the father’s behaviour. Her affidavit provided a troubling account of dysfunctional behaviour by the father. As we will discuss this evidence later, we need not say more at this stage.
In his medicolegal report dated 6 February 2014, from a psychiatric evaluation of the father conducted on 9 August 2013, Professor V opined as follows:
With respect to [the father], the issues are quite complex and also uncertain. There does seem to have been a deterioration in the father’s emotional state since my original assessment. It is likely that he is suffering from a Depressive Disorder and certainly the symptoms seem more than can be accounted for by Adjustment Disorder alone. On the other hand there was no Major Depression at the time of the evaluation.
The best way to characterize the father’s emotional state is that he is suffering from an atypical depression which in DSM-IV/V would be called a Depressive Disorder NOS. I note that he describes a significant fall off in functioning although there is some indication that his depression was lifting at the time of the interview.
It is probable that [the father’s] atypical depression is playing some part in the more extraordinary aspects of his behaviour involving litigation in the Family Court and in other jurisdictions. The behaviour can be understood as constituting a maladaptive attempt to deal with his emotional decompensation, in that regardless of the possible negative consequences to himself it makes him feel better. Moreover it can be understood as an attempt to assert control in a situation where he feels not in control and using the only tools he has available which is his legal training. This is an unusual response to depression and it is likely to be a reflection of underlying personality.
The implication is that as the depression lifts there will be a reduction and hopefully ceasing of the problematic behaviour.
[The father] would benefit from psychiatric treatment and hopefully he is continuing to see Dr [L] and receiving psychotherapy from a Psychologist, although psychotherapy that goes along or re-enforces his sense of having been harmed by the mother is likely to be counterproductive. He may benefit from a trial of antidepressants.
(Original underlining)
Whilst Professor V expressed the opinion that he doubted that the father constituted any threat to the safety of the child, the point he made is that the complex and fluid nature of the issues he identified concerning the father’s mental health required ongoing treatment.
His Honour made a specific finding (at [43]) that “…the father put no evidence before the Court that would satisfy the Court that he continues to address his psychological health issues as Professor [V] said he should.” That finding appears to us not only to be available, but to have been confirmed by the father in his oral argument before us when that very question was posed to him. No other finding was reasonably open to his Honour.
Further, in that respect at [44] his Honour quoted the father’s own treating psychiatrist Dr L – evidence which before us the father again misrepresented. At [43] to [45] his Honour said:
43.Significantly, the father put no evidence before the Court that would satisfy the Court that he continues to address his psychological health issues as Professor [V] said he should. All the Court was told by the father, from the bar table, was that he tried to get another appointment with the psychiatrist, Dr [L], but the doctor refused to see him whilst he was still engaged in these proceedings.
44.In that respect, Dr [L]’s report on the father, written in March 2013, was in evidence. He opined then that the father has struggled to cope with the “severe and overwhelming stressors” in relation to the issues before the Court and was at risk of developing Major Depression. Dr [L] expressed the opinion that the longer the stressors (associated with these proceedings) persist, the greater the risk that the Adjustment Disorder (that he thought the father had) will impair his day to day functioning and the greater the risk of the development of a more severe psychiatric disorder in the way of Major Depression. Dr [L] described Major Depression as a mood disorder which requires assertive assessment and treatment.
45.Dr [L]’s alleged unwillingness to see the father again, in itself, if true, would support a view that the doctor considers the father unlikely to progress to improvement whilst still engaged in these proceedings. Although one must be careful to avoid speculating about this in the absence of further evidence from the doctor.
It is clear that his Honour carefully considered the medical evidence that was before him. This evidence was then analysed in light of the whole of the evidence that was before his Honour including evidence as to the father’s more recent behaviour.
There is no substance in the father’s complaints concerning his Honour’s asserted failure to consider medical evidence and there is thus no merit in these grounds.
To the extent that the assertion in ground 2 that the orders were “incapable of being followed” was directed to the contact centre originally nominated in paragraph (5), that order was amended by consent order on 11 June 2014. The father acknowledged in argument that the amendment rendered his challenge otiose and he withdrew it.
The further contention of the father arguably embraced within the assertion that the orders his Honour made were “incapable of being followed” related to the mandatory and prohibitory injunctions his Honour granted concerning the websites identified in order 1.
The father did himself and his argument no credit by commencing his submissions to us on this topic with a proposition to the effect that there was no evidence or no sufficient evidence to establish that the father had created the relevant websites.
At [18] his Honour referred to the father’s sworn evidence as to establishing one of the main websites. At [19] his Honour recorded that in the Deed of Settlement entered into by the father, X School and the mother, the father agreed to remove and/or procure removal of all content from relevant websites and not to again publish or cause to be published like material. Before us, it behoved the father ill to attempt to refute his role in the creation and control of the offending sites.
At [22] his Honour referred to the proceedings by X School and the mother necessitated by the father’s purported repudiation of the Deed of Settlement. They secured orders made on 27 November 2013 by Byrne SJA for the Deed of Settlement to be specifically performed.
We are satisfied that the findings his Honour made at [67] as follows were open to him:
The evidence adduced by the mother, confirmed by the father’s own evidence, is that the father established the website and that the registered owner of the website is the company, [K] Pty Ltd, the company of which the father is the sole director and shareholder. The evidence establishes that the registrant email address is […]. I am satisfied that the father controls this website. I am also satisfied, on the balance of probabilities, that he controls all of the other websites that mirror this one and that he has published or caused the publication of the material on those websites and on YouTube and the CNN website that includes the same type of content. I am satisfied that the names of the other people registered as the owners of the other websites are mere pseudonyms created by the father for his own purposes, such as attempting to hide his own personal responsibility for creating the websites and publishing the content of those sites.
As to the father’s contention that his loss of control of K Pty Ltd by reason of his bankruptcy resulted in his inability to cause published material to be removed, this was a topic specifically addressed by his Honour and the form of order his Honour made took account of that argument as follows (at [70]):
As I have already observed, the father informed the Court during the hearing that he could not and would not cause the published material to be taken down. He submitted that as a bankrupt he cannot act in his capacity as director of [K] Pty Ltd to close down the website and that only his trustee in bankruptcy could. That is, in my view, easily remedied by ordering him to take all steps necessary to close down the offending websites, including asking his trustee in bankruptcy to do all things necessary in his stead.
We find no merit in the father’s contentions concerning his incapacity to comply with the orders his Honour made.
There is no merit in grounds 1 and 2.
Ground 3
The father’s central contention is that because an earlier interim order which gave the mother sole responsibility for the child’s education, including choice of school, was made by consent, and the father now withdrew his consent, the order was somehow ineffective. The father’s proposition is plainly wrong in law as his Honour correctly found at [52]-[53] of the reasons as follows:
52.As to the first, with respect to the father, he is fundamentally incorrect. Where orders are made by the Court with the recorded consent of the parties, those orders are no less valid than an order made by the Court after a contested hearing. The order cannot simply be made invalid or unenforceable months later by one of the parties asserting that he no longer consents to the order remaining in force.
53.As to the second, when the father was asked what would happen if the orders about the school were vacated, he responded with the assertion that the parents would then again share responsibility for the decision as to where the child was to attend school. When I asked him what his position on that might be, he informed the Court that he would not want the child to continue to attend [X School] and would seek to move her to a State school. When I asked him what would happen if the mother did not agree with that and insisted that the child continue to attend [X School], without any qualms the father calmly responded “she would have to go to a State school then”.
It is not open to doubt that once an order is made by the court, even if made with the consent of the parties, the legal effect upon the parties’ rights derives from the order itself and not from any antecedent agreement of the parties leading to the making of that order (Harris & Caladine (1990) FLC 92-130).
It can be seen that at [53] of the reasons, his Honour considered an alternative submission by the father that he should discharge the order. His Honour dealt with that application and considered it contrary to the best interests of the child for it to be discharged.
To the extent that the father’s oral argument seeks to embrace, in respect of ground 3, some form of challenge to his Honour’s reasons, we see no substance whatsoever to that purported challenge. His Honour’s reasons, in our view, adequately reflect the decision that his Honour came to and the path of reasoning which led to that result.
There is no merit in this ground.
Ground 4
The essence of the father’s contention is that the trial judge failed to accord him procedural fairness by, in particular, placing weight on the evidence of his former partner Ms M given that her evidence was untested by
cross-examination and was disputed by him.
We have earlier in these reasons, with reference to SS & AH (supra) identified what we see as a misapprehension on the part of the father as to the place of such evidence in an interim hearing.
The fundamental finding informing his Honour’s determination was “…the apparent deterioration in the state of the father’s mental health and the commensurate increase in the risk of harm to the child in his unsupervised care…” (at [47]).
Against the background provided by the expert psychiatric evidence already referred to as to the risks of deterioration of the father’s mental health over time and the effect of stressors upon his health, it was not in issue on the evidence below that:
a)Since the father’s assessments by each of Dr L and Professor [V] the father had been required to surrender his practising certificate as a lawyer, and had been declared bankrupt, in the context of ongoing conflict between the father and the child’s school, X; and his sole source of income had become social security sickness benefits;
b)Likewise since those medical assessments, the father’s relationship with Ms M, previously described by the father as his “fiancé” had not only broken down but had broken down to the extent that Ms M was willing to provide affidavit evidence advancing serious allegations concerning, inter alia, the child’s welfare when in the care of the father.
Evidence as to the effect of these stressors upon the father was provided and referred to by his Honour, at [35], including:
a)Aggressive and abusive communications by the father to the mother including his then recent text message to her in these terms:
Lets [sic] make it clear you fucking retard. [the child] will stay at mums [sic] or a hotel or camping. I do not agree to [the child] attending [the school]. Please do not send any further texts dickhead.
b)His demeaning descriptions of the mother in his letter to the Child Support Agency dated 12 February 2014;
c)His website postings about the child’s school, with increasingly bizarre and biblical references including:
·[omitted]
d)The father’s demeanour during the hearing. At [34] his Honour recorded:
…the father’s demeanour demonstrated a real lack of self-control. His mood ranged from anger and arrogance to defiance, despair, agitation and crying throughout the course of the hearing. He was repetitive and unable to stay focused on one point, seemingly intent to point out what injustices are being done to him on a daily basis by many.
At [57] his Honour made further reference to the father crying whilst making submissions.
As to the father’s demeanour, in SS & AH (supra) Boland and Thackray JJ observed at [101]-[102] as follows:
101.In approaching the challenging task of decision-making at an interim hearing, an experienced judge will be greatly assisted by being able to make an assessment of the parents. Ordinarily this is not possible where the parties are both represented and where all of the evidence is given by affidavit. However, in the present matter, both the mother and the father were self represented. The advantages a judge enjoys in such circumstances have been well described by Mr Justice Wilson (UK). His Honour said this in his 2002 Atkin Lecture, “The Misnomer of Family Law”:
… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes affects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.
102.Whilst some of these remarks were directed to interactions during cross-examination, of which there was little here, the presence of a self represented litigant at an interim hearing does give the judge an opportunity to make assessments which could not otherwise be undertaken. For example, if the mother had been represented at the hearing, it may not have been possible for his Honour to have found that she has “a very forceful personality and one aspect of this forceful personality is her ability to be very assertive at times”. However, a finding to this effect may well be open where the judge had the opportunity to observe a self represented litigant presenting her case. In the present case, his Honour’s views found support in K’s description to the Family Consultant of her interactions with her mother.
We are comfortably satisfied that his Honour was cognisant of the limitations of an interim hearing but weighed the probabilities within those constraints with respect to the father’s mental health when he said (at [41]):
Although it was an interim hearing without cross-examination and the Court’s ability to make determinations of fact on disputed issues is limited, I have absolutely no doubt on the material that I read, the content of the father’s submissions and assertions to the Court and the demeanour and conduct of the father that I observed, in Court, his personal circumstances having deteriorated so badly since August last when Professor [V] saw him, that his mental health has in all probability deteriorated significantly since then also.
In this context it would not have been legitimate for his Honour to simply ignore the allegations advanced by Ms M and the mother going centrally to issues concerning the child’s welfare simply because the father disputed them.
We find no merit in this ground.
Ground 5
Ground 5 complains that his Honour did not accede to the father’s application that a psychiatrist prepare an updated Family Report. It is important to understand that the tortuous process involved in these parenting proceedings has seen evidence provided by the father’s own psychiatrist Dr L and an independent single expert psychiatrist, Professor V. A total of three reports have been obtained from those psychiatrists which are plainly intended to operate in conjunction with three Family Reports provided by a reporting social worker. His Honour dealt with the father’s application at [61]:
I dismiss the father’s application for a psychiatrist to be appointed to do a family report. I informed the father that I would dismiss this part of his application during the hearing itself. He referred to an intention to appeal against any such order and I gave him my reasons. There are three family reports already in this matter from a very experienced family report writing social worker who has, I expect, written hundreds of family reports over the years. There are two psychiatric reports from a very senior psychiatrist who has been giving evidence in this Court for years. The Court is already adequately assisted by this abundance of social work and psychiatric expertise. When asked for his reasons why a fresh psychiatrist should now be appointed at significant expense, no doubt to the legal aid budget or even this Court’s budget, the father could only submit that there were “incongruences” in the existing reports. I was not persuaded that the best interests of the subject child required a further report from a different psychiatrist that was sought to be given on matters outside a psychiatrist’s expert knowledge in any event.
The father’s submissions appear to misapprehend the role of a psychiatrist in the preparation of a Family Report and the inter-relationship between the Family Report prepared by a consultant social worker and separately a psychiatric report relating to psychiatric issues prepared by a psychiatrist. That alone is sufficient to dispose of this ground of appeal. Further, his Honour plainly considered carefully the arguments put forward by the father and the reasons given by his Honour for refusing the application are, in our view, entirely sound.
Further, and in any event, his Honour made, at [7] the following order:
(7)Prior to the final hearing of the competing parenting orders applications of the mother and the father, the Independent Children’s Lawyer shall use his best endeavours to obtain an updated psychiatric report in respect of each of the mother and the father from Professor [V].
It will be noted that the order foreshadows a report being received in respect of both parents and for that report to be received specifically for the purposes of the trial which will take place in about twelve weeks’ time.
No error has been demonstrated by the father.
Ground 6
The father sought, by way of a further application to “enforce” parenting orders, namely to sanction the mother in some unspecified way for sending the father text messages. The circumstances in which she did so are the subject of specific findings made by his Honour at [63] and [64]:
63.As to the father’s final application, that the Court enforce the current parenting orders due to non-compliance, the best the father could do when asked to explain what this was about was to inform the Court that the mother texted him when existing orders prohibited such communication with him.
64.The only evidence I saw of that were texts where the mother was simply seeking reassurance, in the light of the known significant changes in the father’s living circumstances, that the arrangements to accommodate the child during her overnight weekend visits would be appropriate. In response to reasonable requests for such assurances, she received inexcusable, violent abuse. That application of the father is dismissed.
His Honour’s reasons are entirely supportive of the dismissal of the father’s application for “enforcement”. To the extent that the father asserts a broader issue that somehow, in some unspecified way, the failure to enforce orders was relevant to the parenting proceedings, we can see no merit whatsoever in that challenge.
Indeed the father did not direct us to any order of the kind he described in his argument. There is, so far as we are aware on the material provided in the appeal record, no such order. The only order before us which comes close (but does not meet) the order described by the father is order 8 made on 15 April 2013 by Judge Howard (as amended on 24 June 2013) which is in the following terms:
8.That the mother be permitted to speak with the child by telephone on one occasion on each alternate weekend that the child spends time with the father and one telephone call on alternate days when the child spends holiday time with the Father, such telephone calls to be limited to ten (10) minutes duration.
Even if there is an order in terms as advanced by the father, for the reasons already outlined there is no substance in this ground of appeal.
Ground 7
The father described this as “the major ground”. The argument proceeded by the father asserting, on a number of occasions, that “he did not understand the reasons”. Despite quoting the relevant authorities, the father did not adequately address the fact that assertions as to his subjective comprehension of the reasons must take second place to an objective analysis of whether the reasons are adequate within the meaning of the authorities to which he made reference.
We have earlier set out the central findings which, in reasons significantly more extensive than might normally be expected in respect of an interim hearing in a busy duty list, his Honour provided.
Having asserted centrally that he had himself no comprehension of his Honour’s reasons or any understanding as to why his Honour made the orders that he did, the father spent considerable time before us analysing and criticising those very reasons and suggesting findings and orders which he says ought to have been made. On any proper analysis, the father’s assertions with respect to the reasons are not that they are inadequate, but rather that they do not reveal a result which he contended for.
Not only did the father’s argument illuminate no error or inadequacy of reasons, but the father’s argument further exemplified that each and all of his Honour’s findings were well open to him and that the reasoning process was clear. There is no merit in this ground.
Ground 8
The father contends that the order made by his Honour is an order made for an indeterminate time. The simple fact of the matter is that the premise founding the father’s contention is erroneous. The orders were made “until further order” and his Honour thereafter proceeded to make directions in respect of a trial to commence on 31 October 2014.
Further, and in any event, the order, being an interlocutory or interim order, was amenable to change pending a material change of circumstances before the trial (including by consent, as occurred on 11 June 2014.)
Conclusion
As there is no merit in any of the grounds advanced by the father the appeal was dismissed by orders made on the date of hearing of the appeal.
The Stay Appeal
The father sought to raise a number of issues in respect of the stay appeal. The simple fact of the matter is that, as his Honour records in the reasons, the lack of merit of the prospective appeal was a significant factor in his decision to refuse to grant the stay. The appeal has been unsuccessful. The appeal in respect of the stay is moot.
Again, we made orders on the day of hearing dismissing this appeal.
Conclusion and Costs
As there was no merit in either appeal we made orders on the day of hearing dismissing them.
Given the father’s bankrupt status, the mother and the ICL sought no order as to costs in the event of the appeals being dismissed and thus we made no order as to costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy & Kent JJ) delivered on 28 August 2014.
Associate:
Date: 28 August 2014
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