Rendall and Rendall
[2014] FamCAFC 26
•27 February 2014
FAMILY COURT OF AUSTRALIA
| RENDALL & RENDALL | [2014] FamCAFC 26 |
| FAMILY LAW – APPEAL – CHILDREN – where the appellant father appeals orders providing the respondent mother with sole parental responsibility and providing for no time between the father and the parties’ four children – where the father’s primary challenge is to the weight given by the trial judge to certain evidence – whether the decision reached by the trial judge was plainly wrong – where the decision was open on the factual findings made by the trial judge, which were not challenged on appeal – where no error demonstrated – no order as to costs. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 Gronowv Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Rendall |
| RESPONDENT: | Ms Rendall |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Corridon |
| FILE NUMBER: | MLC | 12129 | of | 2007 |
| APPEAL NUMBER: | SOA | 42 | of | 2011 |
| DATE DELIVERED: | 27 February 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Faulks DCJ, May and Murphy JJ |
| HEARING DATE: | 18 October 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 June 2011 |
| LOWER COURT MNC: | [2011] FamCA 413 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Baker |
| SOLICITOR FOR THE APPELLANT: | Thexton Lawyers |
| THE RESPONDENT: | Self-represented |
| THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cathleen Corridon, Lawyer |
Orders
The appeal is dismissed.
Each party shall bear their own costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rendall & Rendall 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 42 of 2011
File Number: MLC 12129 of 2007
| Mr Rendall |
Appellant
And
| Ms Rendall |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
The appellant father appeals orders made by Cronin J on 2 June 2011. The broad effect of those orders is that the respondent mother have sole parental responsibility for the parties’ four children, who were then between 12 and seven years of age, and, significantly in terms of this appeal, that the father have no contact with the children, save for the provision of cards, letters and gifts.
Why Was the Hearing of the Appeal Delayed?
Given that this appeal challenges orders that see the father spend no time with the children, it is important to record the reasons why the appeal was heard more than two years after the making of the orders.
The Notice of Appeal filed by the father on 30 June 2011 was deemed discontinued on 16 December 2011 as a result of the father filing appeal books which were deficient. On 27 March 2012, the father filed an application seeking to reinstate the appeal. On 18 May 2012 the Full Court ordered that the father’s application to reinstate the Notice of Appeal “stand dismissed” unless the father complied, within 28 days, with previous directions made by the Appeals Registrar, in which event the Notice of Appeal would be reinstated.
The Appeals Registrar determined that the father had “substantially complied” with the relevant directions. On 20 June 2012, the Appeals Registrar wrote to the then legal representatives for the father advising that in order for the appeal to be listed to the next Full Court sitting in early October 2012, the father was required to file a summary of argument by 10 August 2012. It will be observed that the father was represented at that time. The father failed to file his summary of argument in time and, consequently, the appeal was not listed in the October 2012 sitting.
On 14 August 2012, the Appeals Registrar wrote to both parties advising that if the father’s summary of argument was not filed by 16 November 2012, the appeal may be listed before the Full Court to consider whether it ought be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
On 12 December 2012, the Appeals Registrar again wrote to each of the parties, advising them that as a result of the father failing to file a summary of argument, the appeal would be listed before the Full Court on 7 March 2013 for consideration of dismissal pursuant to r 22.45. That Full Court ordered that the appeal “stand dismissed” unless the father filed a summary of argument by 12 April 2013.
The father filed his summary of argument within the time specified. As a result, the appeal was listed for hearing as soon as could be arranged on 19 June 2013. The hearing of the appeal was adjourned to enable the mother to obtain legal representation.
Ultimately, the appeal was listed for hearing, and heard, on 18 October 2013, some 28 months after the date of the orders appealed from.
Prior to the hearing of the appeal, the father sought to file an Amended Notice of Appeal on 9 October 2013 and an affidavit on 17 October 2013. Neither document was accepted for filing; each was submitted well outside of the time permitted for filing in the Rules. At the commencement of the hearing, counsel for the father indicated that he did not seek leave to rely on either document – indeed counsel indicated that he was unaware of the existence of those documents.
The Grounds and the Appeal as Ultimately Argued
As a result of counsel’s position as just described, the grounds of appeal relied upon by the father are those contained in the Notice of Appeal filed more than two years ago. As drafted, it contains 44 purported grounds (noting that there was no ground 37). It was, it seems, drafted by the appellant himself. Many of the grounds are, especially in the absence of particularity, not grounds of appeal at all; many do not assert appealable error but, rather, make assertions as to a desired outcome with respect to aspects of the evidence. The grounds as drawn are as follows (all errors are as appear in the original):
1.Justice Cronin failed to give adequate consideration to the meaningful relationship that exists between the Father and the children [S], [F], and [A].
Appealable Grounds on being Denied Procedural Fairness
2.His Honour erred by refusing the appellant the opportunity present previous affidavits prior to the 5th of May 2011 or to take into consideration the content of any the Fathers affidavits prior to the date of 5th May 2011
Appealable Grounds based Expert Reports
3.His Honour erred in failing to take into consideration the observations of and recommendations of court appointed expert psychologist Dr [L]
4.His Honour failed to take into account or give consideration to the fact that Dr [L] had the benefit of hearing the wishes and views of the Children and made recommendations based in light of those wishes
5.His Honour erred in rejecting the evidence and reports of Dr [L] when there was no good reason for doing so.
6.His Honour failed to take into consideration or give weight to the Mother refusing to cooperate and attend upon the court appointed expert psychologist Dr [L]
7.Failed to take into consideration or give weight to the Mother terminating the court appointed expert psychologist Dr [L]
8.Failed to give adequate consideration and weight to the observations and recommendations of Ms [O] in the Supervision reports
9.His Honour erred in being critical of the [O] Supervision report for no good reason.
10.His Honour failed to take into consideration and give weight to the importance of the Ms [O’s] observations of the Fathers positive interactions with the children.
11.His Honour failed to give adequate consideration and weight to Ms [O’s] observations of the children’s positive reactions to the Father and Children’s expressed wishes to continue contact.
12.His Honour failed to give adequate consideration and weight to Ms [O’s] observations that the children’s negative responses to the Father were caused by the Mothers influence
13.His Honour failed to give adequate consideration and weight to Dr [L’s] observations that the Children’s negative responses to the Father were caused by the Mother’s influence
14.His Honour failed to give adequate consideration and weight to the observations and recommendations of […] Reports
15.His Honour failed to give reasons or consideration in dismissing or considering the sections of Family Report and evidence of Ms [C], family consultant that indicate the obstructive and alienating behaviour and attitudes of the Mother
16.His Honour erred by rejecting without good reason the findings of Ms [C], family consultant in her Family report that were favourable to the Husband and Ms [R] that were favourable to the Husband’s case
17.His Honour erred by refusing the appellant the opportunity present previous affidavit’s made prior to the 5th of May 2011 or to take into consideration the content of any the Fathers affidavits prior to the date of 5th May 2011
18.Failed by NOT making an order to admit previous evidence and material in a case where court is making an order that terminates the child parent relationship
19.There is no rule of admission or exclusion that applies in such a case
Appealable Grounds on Errors on Findings of Fact
20.Made and relied upon factual errors with regard to evidence before his Honour in regard to matters of relevance which ultimately lead to His Honour making unsafe findings. Some of the errors of fact are a follows:
21.Erred in believing there had been more than one criminal trial involving the children [S] and [B]
22.Erred in accepting the Mothers evidence there had been a County Court appeal involving the children
23.Erred in not accepting the Fathers evidence that the children had only been involved in one court appearance.
24.Erred in not accepting the Father’s evidence that he had been successful in every County Court Appeal undertaken
25.Misconstrued and confused evidence regarding matters involving Magistrates and County Court matters
26.Misconstrued the evidence of Mr [H] regarding the blood he witnessed on the Husband after being assaulted by the Wife
27.Did NOT find that an assault had occurred on the Father by the Wife based on the evidence of Mr [H]
28.Erred in believing that two assaults had occurred with regard to the Maternal Grand Mother
29.Erred in finding that the husband made an admissions to lying in the Magistrates Court
30.Erred in finding that the Husband called the children [S] and [B] liars in any (and several) court hearings.
31.Erred in finding the husband had given false evidence in respect of his professional and tertiary qualifications
32.Erred in misconstruing the events regarding the assault of the Maternal Grand Mother
33.Erred in accepting the evidence of the Wife with regard to the charges of the Father ringing the doorbell not being contested and dismissed
34.Erred in accepting the evidence of the Wife with regard to the charges in relation to the informant Constable [W] not being contested and dismissed
35.Erred in finding that the Wife did not plead guilty to breaching an Intervention Order.
36.Erred in finding that documented evidence proving the Wife’s conviction was not submitted and accepted by Justice Cronin on this matter
38. [sic] Erred in misconstruing the evidence by the confusing of two instances of altercations involving the Maternal Grand Mother and the Husband
Appealable on Grounds of Credit
39.His Honour erred by failing to take the Wife’s finding of guilt in breaching of an Intervention Order into consideration
40.His Honour erred by being excessively critical of the totality of the Husbands evidence and character and in so being consequently:
a)Failed to take into consideration the evidence given by the experts concerning the Husband’s positive relationship with his children
b)Failed to take into consideration the evidence given and reports by Dr [L], Ms [O] and Ms [C], family consultant that the Wife had embarked on a long campaign of denigration of the Husband in the eyes of the Children
41.His Honour gave excessive weight to the Fathers credibility when considering whether the Father should spend time with the children
42.His Honour failed to give enough or any weight to issues of the Mothers credibility in particular:
a)Why the Mother had introduced and read to the children the book “[…]”
b)The Mothers adverse influence in respect to the Children and their views and their ability, if any, to continue to have a relationship with their Father.
Appealable Errors in Regard to the Witness Mr [H]
43.Further the appellant seeks leave to introduce written evidence before the court that the witness Mr [H] had sought leave of the [State] Bar Association to act as counsel for the Wife in proceedings before Justice Cronin in the matters below and had failed to inform Justice Cronin of that fact when he gave evidence.
44.This issue is of particular importance because His Honour concluded, based on the evidence of Mr [H], that an email was sent to Mr [H] by the Father that was intended to be passed on to the Mother that Justice Cronin considered to be a threat to either kill the children, or for the Father to commit suicide or to intimidate the Mother.
45.The Appellant states that had the Judge been aware of Mr [H’s] conflicted situation His Honour may have, and should have, assessed the evidence differently.
At the commencement of the hearing, counsel for the father indicated that grounds 43-45 would not be pressed. When challenged about the form and content of other grounds, they, too, were ultimately “not pressed”. The Court then asked counsel to address, seriatim, each of the grounds. Ultimately:
·Grounds 6, 9, 14, 19, 21-25, 28-30, 32, 34, 38-40 and 42-45 were “abandoned”.
·Ground 15 was struck out on the basis that it did not disclose any appealable error.
·Grounds 3-5, 7 and 13 were incorporated into one ground, the gravamen of which was that his Honour erred in failing to give any, or any sufficient, weight to the evidence of a psychologist, Dr L.
·Counsel for the father sought to amend grounds 8 and 10 so as to assert error by the trial judge in failing to give any, or any sufficient, weight to observations made by Ms O who had supervised time between the father and the children and grounds 11 and 12 were incorporated into that challenge.
·Counsel sought to amend ground 16 so as to assert, effectively, error in failing to take account of relevant considerations namely aspects of the evidence by a family report writer, Ms C, family consultant.
·Grounds 26 and 27 were consolidated, as were grounds 35 and 36.
The amendments just referred to were allowed. It should be pointed out that, although the mother represented herself on this appeal, discussion with her satisfied us that she understood the effect of the proposed amendments. The mother did not consider that she was disadvantaged; the issues on the appeal had been narrowed and were, as now presented, consistent with the arguments she had addressed in her written outline of argument. We were satisfied that she suffered no disadvantage as the result of any discussion between the Bench and counsel for the father or as a result of any amendments made as a consequence.
Notwithstanding the considerable time spent by the Court in distilling the grounds of appeal, it needs to be said that, with respect to counsel for the father, many of the arguments advanced either orally or in the written summary of argument remained opaque. Assertions as to error were not demonstrative of the miscarriage of discretion; rather they were assertions as to a desired outcome. By way of example, it was submitted that the trial judge was “wrong” to “disagree with the assessment by Dr [L] of the mother’s behaviour…” Similarly, it was submitted that “[h]is Honour was wrong not to accept the recommendation of Ms [C], family consultant that [the parties’ youngest child, [A]] spend time with the father.”
Putting the appellant father’s case at its highest, it would appear to rest on two central assertions. The first is that his Honour’s decision not to order time between the father and his children was “plainly wrong”; that is, the decision was no proper exercise of the discretion (House v The King (1936) 55 CLR 499; Gronowv Gronow (1979) 144 CLR 513). Secondly, there is an assertion that the orders made by the trial judge are inconsistent with evidence given by at least two witnesses and, as a result, his Honour must have erred by failing to take account of relevant considerations or by attaching manifestly insufficient weight to that evidence.
For the reasons which follow, we consider that there is no merit in the father’s appeal. We are of the view that the findings giving rise to his Honour’s orders were well open to him. Specifically, we are not persuaded that his Honour failed to take account of any relevant considerations or gave manifestly improper weight to the evidence, including in respect of the particular witnesses referred to by the appellant.
Our reasons for those conclusions will be given by reference to the consolidations and amendments just discussed and those of the original grounds as remain.
Meaningful relationship (ground 1)
The Primary Considerations in Part VII of the Family Law Act 1975 (Cth) (“the Act”) were, properly, a central focus of his Honour’s judgment. Ground 1 is expressed in language that has echoes in the terms of the first of those two Primary Considerations yet, the ground makes no mention of the focus of that Consideration, namely, the benefit to the child or children of a “meaningful relationship”.
That Primary Consideration is coupled with another that mandates a consideration of the need to protect the subject children from physical or psychological harm or from being exposed to abuse, neglect or family violence. His Honour found that “[t]here can be no doubt in this case that there was, as a matter of fact, violence and abuse by the husband on the most significant members of the children’s family” (reasons at [119]). That finding is not challenged on this appeal. Plainly, that finding must have had an impact upon the findings ultimately made about the benefit to the children of a relationship with their father that can be regarded as meaningful.
It is uncontroversial that the father was convicted of assault following an incident involving the parties’ son, B, when he was eight years of age (reasons at [81]-[83]). The father defended the charge; a trial occurred. Both B and the parties’ eldest child gave evidence and were, on the father’s instructions, cross-examined. The father contended in that trial that his children had lied. Despite this, the father admitted before Cronin J in the proceedings below that he had “…lied to the Magistrates’ Court and the County Court…” in denying that he had assaulted B (reasons at [30]). His Honour’s finding to that effect is not challenged on this appeal.
The father was also convicted of assaulting the mother and the maternal grandmother. He had also pleaded not guilty to each charge. He also accused them of lying. During the trial below, the father “…admitted the assault [on the maternal grandmother] had occurred…” and admitted that “…he had lied to the [Magistrates Court]” by pleading not guilty (reasons at [31]). The father also admitted that he “…has convictions for breaching intervention orders” (reasons at [35]).
His Honour also found, that the father “…is unable to facilitate a relationship between the children and their mother” and that he “does not see [the mother] as important in the lives of the children…” (reasons at [214] and [218], respectively). Those findings are not challenged on this appeal. Conversely, his Honour found that the mother “…wants the children to have a relationship with their father…” (reasons at [216]).
Relevant to issues raised on this appeal, the trial judge also found that by the time of trial, three out of the parties’ four children had “…strongly turned against their Father” and were “strongly resist[ing] seeing their father…” (reasons at [78] and [80]). His Honour also found that A had “…begun to show signs of reticence” towards his father (reasons at [207]).
Whilst it was, and remains, the father’s case that the mother has influenced the parties’ two youngest children in their apparent opposition towards him, his Honour found that “[t]he evidence does not support such an assertion” (reasons at [203]). That issue will be addressed specifically by reference to other grounds later in these reasons. In respect of the challenge embraced by ground 1, it is sufficient to note that, by the time of trial, three of the parties’ children had demonstrated a clear desire not to spend time with their father and A had started showing signs of reticence.
Obviously enough, the findings just referred to, and the specific findings founded on admissions as to the father’s violence, were directly relevant to his Honour’s ultimate findings relevant to ground 1 as his Honour’s reasons plainly indicate to be the case. Those reasons also provide on their face the reason for rejecting the gratuitous oral submission made by counsel for the father before us that his Honour, in making the orders he did, was “throwing up his hands”. His Honour gave, with respect, careful consideration to the nature of the relationship between the father and the children. For example, in his comprehensive reasons, his Honour said:
195.Section 60B sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. Having regard to the matters set out above, the children’s rights are not being fulfilled. The husband must take responsibility for that but it is the responsibility of the Court to try to ensure, if possible, that those rights are met…
…
201.It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children.
202.In a case where the focus has been largely on the behaviour of the husband and its impact on the children, one must ask the obvious question of what benefit will the children receive from any orders that I make?
203.In Loddington & Derringford (No. 2) [2008] FamCA 925 I referred to the fact there was no legislative definition of meaningful relationship and said that for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Three out of these four children strongly resist any involvement with their father. He points to the recent nature of the opposition of [F] and criticises the wife for her having manipulated that situation. The evidence does not support such an assertion.
204.An important question is what damage will be done to the children by enforcing the ongoing relationship that the husband wants to have. One element of that answer concerns how any orders would impact on [the mother’s] parenting. Another concerns how the children view one of their siblings continuing a relationship which they not only reject but also fear. Their rejection and fear is well-founded.
205.The mother provides a stable relationship and environment which I find would be undermined if the father was given an opportunity to spend time with the children.
206.Could that problem be overcome by supervision? In respect of [F], I find that it would not. That situation has been tested since May 2010 and despite Ms [O’s] efforts, [F] has declined further involvement with his father. His apparent mixed messages in the presence of Dr [L] do not help me work out a way to ensure he obtains the benefit of any relationship with his father.
207.Could the relationship between the husband and [A] be improved or secured by supervision? Having regard to the evidence of the Family Consultant, it is difficult to see how the objects and principles earlier mentioned could be fulfilled if it was supervised indefinitely. I reject the concept of allowing unsupervised time between [A] and his father to enable the child to have some form of memory of his father for the prospect of some future relationship. The child knows and recognises his father and has begun to show signs of reticence. More importantly, the ongoing contact by [A] has an adverse impact on the wife and the other children.
208.The father has not changed his view about the mother and his views about the violence he perpetrated on [B] were unconvincing.
209.The evidence shows these children were exposed to a dysfunctional family life for years. There are signs with the position adopted by the children that that has now changed and they are relieved. I am very concerned to simply destroy the current stability. Having no confidence in the husband’s evidence, I am unsure what he would do if given an opportunity to simply take [A] for unsupervised time.
(Bold emphasis added).
Contrary to the submissions made on behalf of the father, the reasons plainly demonstrate that his Honour was acutely aware of, and gave proper prominence to, the mandatory consideration of the benefit, if any, to the children of having a meaningful relationship with their father and to the nature of that relationship more broadly. His Honour properly, with respect, weighed that issue with other relevant considerations. Nothing to which we have been taken indicates that his Honour erred in so doing. To the extent that the ground’s terms should be taken as asserting that his Honour’s finding as to meaningful relationship is against the weight of the evidence, we are well satisfied that his Honour’s findings were well open to him and nothing to which we have been taken is indicative of error in the formation of his Honour’s conclusion.
The reasons indicate plainly that his Honour was alive to the mandatory requirements of Part VII of the Act and s 60CC in particular. The reasons are replete with his Honour balancing the importance to each of the children of the relationship with both of their parents against what his Honour found – with respect correctly – were significant concerns about the parenting which the father would be likely to provide and the impact that time between the father and A would have on all of the parties’ children.
There is no merit in ground 1.
The father’s credibility (ground 41)
His Honour’s findings in respect of the attitudes of the parties toward the responsibilities of parenting their children, the nature of the relationship between each of the parents and each and all of the children, and the respective parenting capacities of the parties emerged centrally from findings as to the parties’ credibility. It is not asserted that any error of fact informed any such credit finding including, specifically, significant credit findings adverse to the father. The challenge mounted by the father in respect of the trial judge’s credit findings is confined to an assertion that his Honour attributed greater weight to his findings regarding the father’s credit than he ought to have.
It is important to highlight, both in respect of the challenge embraced by this ground and many, if not all, of the grounds to be discussed, the significant difficulties confronted by an appellant in convincing an appeal court of error in that respect when, as here, no error is asserted in the facts underpinning the ultimate assessment. Those difficulties have been extensively canvassed in many authorities of long standing and arise from the fact that assessments of credit are quintessentially within the province of a trial judge. It is apt to repeat the well-known passage from Stephen J’s judgment in Gronow v Gronow at 519-520:
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.
The trial judge’s findings regarding the father’s credibility are encapsulated in his Honour’s statement that “I have no confidence in anything the husband said” (reasons at [22]). The father points to no evidence which suggests that his Honour was in error in concluding that the father “…was loose with the truth, evasive and said whatever he considered would support his cause…” (reasons at [22]). To the contrary, the evidence detailed by his Honour, including the father’s admissions during the trial that he had lied during proceedings in the Magistrates Court in which, significantly, his two eldest children were required to give evidence and were cross-examined on the basis that they were lying, provide ample support for his Honour’s findings regarding the father’s credit. So, too, does the unchallenged finding that the father provided “grossly misleading” evidence regarding his accommodation which would be used to house the children during his proposed time with them (reasons at [62]).
Ground 41 has no merit.
Evidence of Dr L, Ms C and Ms O (grounds 3-5, 7 and 13; ground 16; and, grounds 8, 10-12 respectively)
As initially framed, the argument founding grounds 3-5, 7, 8, 10-13 and 16 was that his Honour erred by failing to accept the recommendations contained in the written reports of Dr L, Ms C, family consultant and Ms O. A trial judge is not in any sense bound to accept the recommendations of a family report writer or, indeed, any opinions expressed by him or her (or, for that matter, any other expert). Accordingly, as was made clear to counsel for the father at the commencement of the hearing, an asserted failure on the part of his Honour to accept the recommendations made by those witnesses cannot, in and of itself, constitute appealable error.
That same would be asserted by counsel as an error is remarkable enough but is, in this case, rendered all the more remarkable by the fact that his Honour made this explicit at the commencement of the hearing:
In fact, the parties need to understand this; I’m sure the lawyers do. But the fact that a professional makes recommendations is irrelevant. The only thing I am worried about is whether their evidence has got the efficacy and foundation, and whether they have an opinion, and if they’ve got an opinion, well, then I will consider the opinion, but I don’t have to follow their view…
(Transcript of proceedings, 9 May 2011, p 26, lines 42-47).
After these matters were pointed out to counsel, he subsequently sought to amend the grounds to contend that the trial judge erred by failing to attach sufficient or any weight to the evidence of Dr L and Ms O and by placing too much weight on Ms C, family consultant’s oral evidence.
Dr L and Ms O
The evidence of Dr L, a consultant psychologist, was confined to a report annexed to an affidavit filed on 29 April 2011 (the parties having agreed that he was not required for cross-examination).
Whilst Dr L was initially retained to provide therapy to both the parties and their two youngest children, as the doctor himself acknowledged, at page 5 of his report, “[t]he majority of the reportable therapy has been undertaken on an individual basis with the father…” That fact provides an important context to his Honour’s treatment of Dr L’s evidence.
His Honour considered Dr L’s evidence carefully and extensively (reasons [23], [109]-[120]). Significantly, his Honour said at [119]:
There can be no doubt in this case that there was, as a matter of fact, violence and abuse by the husband on the most significant members of the children’s family. There is no indication in the evidence of Dr [L] that he understood the gravity of the matter and if he did, he seems to have brushed it aside. Having regard to my findings about the credibility of the husband as a reporter and his endeavours to manipulate a situation to his advantage, I have no confidence that the evidence of Dr [L] has any weight. It was suggested by counsel for the wife that there were two faces of the husband. I think Dr [L] saw one, but I saw the other. As such, Dr [L’s] evidence was not of any assistance.
(Emphasis added).
Similarly, his Honour rejected Dr L’s observations of the mother as “melodramatic”, and stated that he “…too had the opportunity to observe the wife. I saw no melodrama” (reasons at [114]).
Ms O had supervised time between the father and three of the parties’ children. As with Dr L, Ms O was not cross-examined; her evidence was confined to a “report” annexed to an affidavit filed 29 April 2011.
The trial judge considered carefully Ms O’s observations of the time she supervised between the father and the children and did so in some detail (reasons at [87]-[108]). His Honour accepted Ms O’s evidence was relevant insofar as it revealed that “… [A] enjoys the time with his father…” (reasons at [107]). However, for reasons set out clearly, the trial judge had significant reservations about much of her evidence. Nothing to which we have been taken suggests any error in arriving at that conclusion.
Ms O’s “report” spans some 60 pages. His Honour observed that, while “[m]uch of what Ms [O] set out in her long reports [sic] was factual … there was commentary as well and that was inappropriate” (reasons at [86]). There can be little doubt in our view that the “commentary” traversed matters and offered opinions well beyond the matters with which Ms O was tasked. We consider that his Honour was, with respect, plainly correct in finding that much, if not all, of the commentary had little evidentiary value.
His Honour found that, as with Dr L, Ms O’s comments appeared to be made “…in the vacuum of not knowing the background of the matter in any detail…” (reasons at [100]). That finding was clearly open to his Honour and is not challenged on this appeal. His Honour also found, in effect, that her observations were coloured by the fact that Ms O had taken it upon herself to make contact with Dr L and that this was “inappropriate” and ought to have been left to the Independent Children’s Lawyer (reasons at [104]). His Honour also found that the interactions observed by Ms O occurred in a “well controlled” setting: “Ms [O] made clear in her report that the husband understood that she held the whip hand and he acknowledged that she could terminate the contact at any time…” (reasons at [107]).
Considerable reliance was placed in argument upon observations by Ms O in respect of the mother allowing the parties’ children to read a particular book. Both Dr L and Ms O were critical of the mother for allowing the children to read the book, and it was submitted by counsel for the father that “his Honour failed to take into account the contents of the book read in a book club involving [the parties two eldest children]; it wasn’t open to his Honour to find that there was no intention [on the part of] the mother to influence the children in respect of the father.”
As that statement suggests, it was argued, in effect, that because each of Dr L and Ms O (neither of whom, it should be repeated, were questioned at the trial) were of the opinion that the mother’s actions were “inappropriate”, it follows that it was not open for his Honour to find as he did. First, it should be observed that his Honour’s ultimate rejection of the father’s allegation that the mother was influencing the children was based on an assessment of the evidence as a whole, including, importantly, the rejection of the father as a witness of credit. Secondly, nothing to which this court has been taken suggests that other evidence taken in combination with the reading of the book points to a conclusion contrary to that which his Honour arrived at. Thirdly, whatever might have, in any event, been meant by the asserted “inappropriateness” of the mother’s conduct in allowing the children to read the book, his Honour specifically rejected the evidence of Ms O and accepted the evidence of the family report writer and, additionally, rejected the contention that a conclusion of influence should be drawn from the facts as found. (See, for example, reasons at [174]).
Nothing to which we have been taken suggests his Honour erred in arriving at each such conclusion. We have been taken to no other evidence which suggests that his Honour’s conclusion was wrong or contrary to the evidence or the weight of the evidence.
Centrally, his Honour’s findings emanating from Ms O’s evidence, and the weight attached to her evidence more generally, were informed by a finding (not challenged on this appeal) that Ms O was either unaware (or alternatively considered it not worthy of mention) that the father had convictions for assaulting his eight year old son, his former wife and his former mother-in-law; that he had lied in other judicial proceedings on at least two occasions; and that one of those occasions involved his two eldest children being required to give evidence and being cross-examined on the basis that they were lying. His Honour’s reasons plainly indicate that he considered this to be a significant matter in his assessment of the weight to be attached to Ms O’s evidence. We can see no error.
His Honour gave reasons for attaching the weight which he did to the evidence of Dr L and Ms O. Principal among them is that each of their opinions appears, as his Honour observed, to have been given in a “vacuum”. Neither was aware of the significant matters to which his Honour made reference or, if either was aware of those important matters, neither considered them sufficiently relevant as matters informing their observations and opinions. Dr L’s opinions were plainly informed significantly by the father’s own account of events. His Honour’s credit findings in respect of the father, in which we have found no error, pertain. It cannot in our view be said that his Honour erred in the assessment of the evidence of either Dr L or Ms O or in the weight attached to it.
There is, then, no merit in grounds 3-5, 7, 8 and 10-13.
Ms C
The father also challenges the weight given by the trial judge to the evidence of the Family Consultant, Ms C. More specifically, it was submitted that the recommendation given by Ms C during oral evidence regarding time between A and the father, which differed from the recommendations contained in her report, was given more weight by his Honour than it ought to have been given.
As with both Dr L and Ms O, his Honour considered Ms C’s evidence carefully and in detail (reasons at [120]-[137]). His Honour records (reasons at [130]-[131]) that Ms C, family consultant had recommended in her written report unsupervised time between A and the father, however, during cross-examination, Ms C “altered her position” and opined that no order for time between the father and any of the parties’ children would be in the best interests of each of the parties’ children. His Honour also emphasised that Ms C “…had the benefit of the husband’s criminal history…” and that she “…was aware of the physical assault on [B] to which the children were exposed” (reasons at [124]-[125]).
It was submitted on behalf of the father that Ms C’s “reasons for changing” her recommendation were “very flimsy” and that her initial recommendation was consistent with the evidence of both Dr L and Ms O and, thus, ought to have been preferred by his Honour over her subsequent, oral recommendations. His Honour’s failure to do so, it was contended, stemmed from him erroneously placing too much weight on the latter.
Having considered Ms C’s evidence in depth, his Honour proceeded to summarise both his findings in respect of that evidence, and its effect, at [137] of the reasons:
There is no reason for me to reject the evidence of Ms [C]. It was thoughtful and professional. She was able to tell me about the development of the children. She was cross-examined about the fact that reducing or eliminating the time between the husband and the children would adversely affect their development and that was not something about which she was concerned having regard to the other matters that were to be balanced. [A] is already saying at times that he does not want to go with his father. To put him into a situation where he is aware of his siblings’ views and into the hands of his father, who I find is manipulative and untrustworthy, leaves me with no doubt that I would be putting [A] in a position of unacceptable risk of being emotionally harmed. The husband’s behaviour in the presence of Ms [O] and Dr [L] was clearly constrained. He is a jovial and affable person but his sinister background, when tested under cross-examination, exposed the true nature of the man. I have no confidence that he would not endeavour to manipulate [A] thereby exacerbating the dysfunctional problems within this family. As I said earlier in these reasons, these children deserve to be and need to be, just children. The war has gone on too long and it is time to stop. If Ms [C] is correct and I have no reason to doubt she is, there would be a time in the very foreseeable future when [A] would vote with his feet in any event.
(Emphasis added).
The father does not point to any error in his Honour’s finding regarding the unacceptable risk of emotional harm to A. Nor does he point to any error which might undermine his Honour’s conclusion that he had “…no confidence that [the father] would not endeavour to manipulate [A] thereby exacerbating the dysfunctional problems within this family.”
Leaving aside Ms C’s evidence, there was ample evidence (not challenged on appeal) to support his Honour’s findings. For instance, his Honour had before him evidence from a psychologist, Ms K. Ms K was not called for cross-examination. Although her evidence was contained in a report prepared by her for the Victims of Crime Assistance Tribunal, the trial judge observed (at [139] of the reasons) that “none of [the reports prepared by Ms [K] were] challenged”. No challenge was mounted in respect of her evidence on this appeal. Ms K reported statements by the children which were consistent with the evidence of Ms C. Significantly, Ms K noted the anxiety felt by at least two of the parties’ children at the prospect of their youngest sibling spending time with their father. Ms K also reported that all four children had indicated reluctance at spending time with the father. As noted by his Honour, those observations were consistent with the views of Ms C.
Contrary to the submissions made on behalf of the father, his Honour placed weight not on the recommendations of Ms C but, rather, on her written and oral opinions, based on observation, regarding the distress that time between the parties’ two youngest children and the father would cause not only those children, but the parties’ other children and the mother. Significantly, the father does not challenge Ms C’s evidence regarding the deleterious effect that contact between the father and the parties’ youngest children would have on the parties’ other children and their mother and the concomitant effect that would have on each child’s best interests. (See, for example, reasons at [192]; [203]-[206] quoted above). Indeed, written submissions filed on behalf of the father state that the father “…does not agree with Ms [C’s] recommendations … but makes no objection to her reporting of facts.”
The father has failed to demonstrate any error in the manner in which the trial judge treated Ms C’s evidence or in the weight attached to it.
There is no merit in ground 16.
Conclusion regarding the evidence of Dr L, Ms O and Ms C
There is no merit in grounds 3-5, 7 and 13, and 8, 10-12, and 16.
The remaining grounds
Procedural fairness
As ultimately argued, grounds 2, 17 and 18 all assert the same error, namely, that the trial judge denied the father procedural fairness by refusing to read affidavits filed by the father prior to 5 May 2011.
With respect to counsel for the father, the challenge mounted in these grounds is founded on assertions patently contrary to what occurred at the outset of the trial before his Honour. In addition, and importantly, as the transcript makes clear his Honour was acutely aware that these proceedings had been on foot for over four years; that there was a substantial amount of material from both parties on the file and that the best interests of these children required a determination of the issues between the parties. In that respect, although not stated specifically or in terms by his Honour, the manner in which his Honour conducted the proceedings and comments made by his Honour recorded in the transcript make it abundantly clear that his Honour was aware of, and was seeking to comply with, the mandatory principles and duties laid down in the Act for the conduct of child related proceedings, in particular ss 69ZN and 69ZQ of the Act.
Those matters notwithstanding, the father was in fact granted significant indulgences. Although the father had failed to file his trial affidavit by the date specified in orders made by a Registrar, his Honour allowed the father to rely upon that affidavit. The gravamen of the father’s complaint upon appeal arises from the fact that, in addition to that affidavit, the father had sought to rely upon every affidavit he had filed in the matter in the four years since its inception.
As his Honour noted, reliance upon those affidavits by the father was contrary to the Rules and, in particular, r 15.06 which provides “[a]n affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed” (transcript of proceedings, 9 May 2011, p 8, lines 35-37).
When asked why the father was seeking to rely upon affidavits filed in 2007, his then counsel submitted that those affidavits were responsive to affidavits relied upon by the wife (transcript of proceedings, 9 May 2011, p 8, lines 27-28). Yet, his Honour had refused to allow the mother to rely upon 10 previous affidavits filed by her and, ultimately, her counsel relied upon her trial affidavit which, as he conceded, “cover[ed] the field” (transcript of proceedings, 9 May 2011, p 2, lines 29-45). His Honour made plain to then counsel for the father, that the mother’s reliance upon only her trial affidavit, ostensibly negated the need for the father to respond to any of her earlier affidavits.
Significantly, and notwithstanding the late filing of the father’s trial affidavit, on the second day of the hearing, his Honour permitted the father to file a further affidavit in respect of certain evidence which the father sought to give during examination-in-chief.
The father was accorded substantial latitude by his Honour. His Honour was plainly cognizant of his mandatory duties and the principles underlying them prescribed in s 69ZN, s 69ZQ and Division 12A of the Act more broadly. There is no sustainable foundation for the assertion that the father was denied procedural fairness.
There is no merit in grounds 2, 17 or 18.
Errors of fact
The remaining grounds (grounds 20, 26, 27, 31, 33 and 35-36) each contend that his Honour “mistook” certain facts.
Nothing contained in the written submissions filed on behalf of the father, nor anything to which we were taken in oral argument, persuades us that the findings referred to in those grounds were erroneous or that his Honour otherwise “mistook” the facts. We were taken to no evidence persuasive of his Honour’s conclusions being wrong nor to evidence which was persuasive of a conclusion other than that reached by his Honour.
No error is made out in respect of grounds 20, 26, 27, 31, 33 and 35-36.
Plainly Wrong?
In a seminal passage in House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ held:
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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Despite the deficiencies in the grounds of appeal earlier alluded to and despite, with all due respect, the arguments in respect of many of the amended or re-framed grounds remaining somewhat opaque, we consider that, in light of the nature of the orders made by his Honour, we should, out of an abundance of fairness to the father, address the last of the matters referred to by their Honours in the passage just quoted.
The terms of Part VII of the Act make clear that, in the usual course of events, children can expect to be nurtured by both parents and to derive from each of them what each has to offer. Accordingly, it might be seen that where an order is made by a trial court the effect of which is that a parent should neither spend face to face time nor communicate with their children save in a restricted manner, an appeal court should be alive to the possibility that “despite the nature of [an] error not be[ing] discoverable”, a conclusion might be drawn that “a substantial wrong has in fact occurred”. In the context of parenting proceedings, the “substantial wrong” must be a substantial wrong by reference to the best interests of the relevant children, not the interests of the parents. That is because the Act makes it equally plain that, when a court makes a decision about parenting orders, it must regard the best interests of the children the subject of the proceedings as the “paramount consideration”. That, in turn, involves an assessment of the mandated considerations by reference to the particular children the subject of the dispute and their particular circumstances, including the individual psychological and emotional makeup of each.
An order effectively removing a parent from a regular and meaningful role in their children’s lives is a very significant order indeed. We are cognizant of that. We have carefully read his Honour’s judgment and the evidence supporting it. In the particular circumstances of this case and these children, we consider that his Honour’s orders were well open to him and we could not conclude that they are “plainly wrong” or that a “substantial wrong” has occurred.
Conclusion
The appeal should be dismissed.
Costs
As is customary, at the conclusion of the appeal we asked each party for their submissions in respect of costs.
It was submitted on behalf of the father that, should the appeal be unsuccessful, each party ought bear their own costs.
The mother, who represented herself during the proceedings, did not seek costs (or, more accurately, expenses) in the event the father’s appeal was unsuccessful.
Each party should bear their own costs of and incidental to the appeal.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ and May and Murphy JJ) delivered on 27 February 2014.
Associate:
Date: 27 February 2014
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