RG v JR

[2006] FamCA 293

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 21/2002

File No. NCF 673/2000

IN THE MATTER OF:

Appellant/Father

- and -

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE: Bryant CJ, Coleman and Boland JJ
HEARD:2 May 2005

JUDGMENT: 27 April 2006

APPEARANCES:

The Appellant Father appeared on his own behalf.
The Respondent Mother appeared on her own behalf.

APPEAL SUMMARY

MATTER: RG and JR
APPEAL NUMBER: EA 21 of 2002; NCF 673 of 2000
CORAM: Bryant CJ, Coleman and Boland JJ
DATE OF HEARING: 2 May 2005

DATE OF JUDGMENT: 27 April 2006

CATCHWORDS:

APPEAL – Children – Contact – Where trial Judge made orders for father to have limited supervised contact with child – Where applications made by father and by mother to adduce further evidence – Whether trial Judge failed to admit relevant evidence and had regard to documents not in evidence – Whether father denied procedural fairness – Whether trial Judge erred in exercise of his discretion in ordering indefinite supervised contact – Whether inappropriate and insufficient weight given to evidence of particular witnesses – Whether finding that father suffered from and was treated for a psychotic illness was not open on the evidence - Whether trial Judge failed to give sufficient or appropriate weight to the child’s wishes – Whether injunctions made restricting father’s right to discuss matters relating to the child were unnecessarily or improperly restrictive – Order found to be too widely drawn – Re-exercise of discretion in respect of this order - Order discharged in part.

Legislation

Order 30 Rule 1C Family Law Rules 1984

Case law

CDJ v VAJ (1998) FLC 92-828
De Winter and De Winter (1979) FLC 90-605

APPEAL ALLOWED IN PART

Introduction

This is an appeal by the father against orders made by Rose J on 31 January 2002. Those orders provide that the parties’ only child JR, who is presently aged eleven years, should live with the mother and have limited supervised contact with the father.
Both the mother and father were unrepresented before us. The Child Representative who had been appointed, and who through counsel at the trial opposed any contact between JR and the father unless the father first commenced psychiatric treatment, did not appear on the appeal. His appointment was discharged at the conclusion of the trial.
On 10 December 2004 the father filed an Amended Notice of Appeal. In that notice he challenged all of the orders made by the trial Judge, sought the discharge of the existing orders, and that orders be made as set out in his submissions filed 3 October 2001. However that document does not contain any proposed orders. It appears the father is referring to draft orders annexed to his submissions dated 26 September 2001. Those proposed orders provide in summary that JR live with the mother, and for six months from the date of those orders the father have supervised contact to the child in the New South Wales Central Coast area on the first Sunday of each month, on Christmas Day and on the child’s birthday for a period of four hours; that the parties attend at least three joint counselling sessions with the father’s psychologist in the Northern New South Wales area at the cost of the father; thereafter for a further period of six months that the father’s contact to the child occur in the New South Wales Central Coast area on the first Sunday of each month for a period of four hours and on Father’s Day and the father’s birthday for a period of two and a half hours, such contact to be unsupervised; thereafter that contact be increased to one whole weekend each month.
The thrust of the father’s grounds of appeal as they appear in the Amended Notice of Appeal are somewhat convoluted, and on one view appear primarily directed to the effect of the orders on the father, rather than the child, including in particular, his future career. The father asserted however that the effect of the orders on him indirectly affected the child’s best interests. From the father’s oral submissions, we discern the principal thrust of his appeal is that the trial Judge erred, in the exercise of his discretion, in failing to provide for contact between the father and the child to progress from supervised to unsupervised contact.
Before us, the father submitted we should admit further evidence, such evidence being the medical records of a Dr D, who had been the mother’s treating psychiatrist for some years. The father submitted that the trial Judge had erred in refusing to admit Dr D’s file into evidence when the father sought to tender the file. The father submitted had the file been before the trial Judge its contents would have supported his submission that the mother did not have reasonable concerns for the child’s safety if contact was unsupervised.
The mother also sought to adduce further evidence, being an affidavit sworn by her on 18 April 2005 to which she annexed, among other documents, correspondence from the father since the making of the trial Judge’s orders. We rejected the mother’s application to admit further evidence at the hearing.
Notwithstanding the difficulties caused by the drafting of the father’s grounds of appeal, before us the father confirmed his essential challenge to the trial Judge’s orders was that the order for supervised contact was indefinite, and the order contained no mechanism for the order to be reviewed at any time in the future. The father, in both his oral and written submissions, did not challenge the trial Judge’s order which provided for JR to live with the mother.
The other substantial complaint of the father was that orders made by the trial Judge restraining him from communicating with persons other than a legal representative, medical practitioner or psychologist were unnecessarily restrictive, and prevented him from discussing or seeking counselling from an accredited counselling service.
The father asserted mistakes of fact by the trial Judge, which he said vitiated the exercise of his discretion. In particular he submitted that the trial Judge incorrectly interpreted medical records and reports. He also asserted the trial Judge took into account material which was not in evidence before him by relying on the whole of a medical file, when only specific documents from the file were tendered by the Child Representative.
The father also attacked the trial Judge’s orders on the basis the contact orders made were, he asserted, more restrictive than the orders proposed by the mother.

Background

The trial Judge’s judgment and the Court record disclose the following relevant background.
The father was born in August 1951. He is accordingly aged 54 years. At the date of the trial the father was unemployed. He was previously engaged as a teacher at a technical college. He has qualifications as a computer engineer. The mother was born in May 1958. She is accordingly aged 47 years. At the date of the trial the mother was employed as a head teacher at a technical college. JR is the only child of the parties. He was born in December 1994.
The father was previously married. When the father’s previous marriage broke down the father suffered depression, and he underwent psychiatric treatment from Dr AS whom he had previously consulted in 1984.
In 1993 the mother separated from her then de facto partner. At about that time the mother asserted she commenced seeing Dr D, a psychiatrist, for counselling and stress management.
The parties commenced a relationship in July 1993, and began cohabitation in November 1994. They separated in March 1995. JR lived with the mother after separation. The mother had three children of a prior relationship who were also living with her at the date of the trial.
The father left the mother’s home in March 1995. In July 1995 the father took unpaid leave from his employment. In August 1995 he was admitted to the E Clinic. He was transferred from the clinic to a Northern Sydney hospital’s psychiatric ward where he remained until discharged in September 1995. The discharge summary recorded as follows:
“Psychiatric PARANOID DELUSIONAL DISORDER IF NOT SCHIZOPHRENIA MARKED PARANOID PERSONALITY DISORDER FH BROTHER SUFFERING SIMILAR ILLNESS”
The discharge summary disclosed the father was “discharged to parents [sic] home”. The father disputed the diagnosis recorded in the discharge summary insofar as it referred to schizophrenia.
On and from September 1995 the father lived in the Northern New South Wales area, including periods living in his parents’ home.
On 27 August 1996 ex-parte orders were made in a Local Court in Northern Sydney which orders provided the child should live with the mother.
In January 1997 the mother travelled to the Northern New South Wales area with the child, and her other children, and they stayed for two days at the father’s parents’ home. The mother again visited the Northern New South Wales area at Easter in 1997. On this occasion she stayed with one of the father’s relatives. She again visited the Northern New South Wales area with the child for two nights in August 1998. The father had further contact with the child in the Northern New South Wales area on 4 and 5 September 1998.
In July 1997 the father’s position with the technical college was terminated.
During 1998 the father had telephone contact with the child and sent him gifts. The father ceased regular telephone contact and forwarding gifts on a weekly basis in December 1998. Thereafter he had infrequent telephone contact with the child.
The father commenced proceedings in November 1999 in a Local Court in the Northern New South Wales area. No contact occurred between September 1999 and March 2000. On 21 January 2000 the proceedings were transferred to the Newcastle Registry of this Court. The father deposed to contact visits with the child being enjoyable, and that he provided inexpensive presents for the child which he enjoyed. He also asserted after the transfer of the proceedings to the Newcastle Registry he had not attempted to contact the mother.
In 1999 the father contacted the Pastor of the mother’s church and requested him to organise counselling for the parties.
The father saw the child for a short visit in September 1999 whilst the mother was travelling through the Northern New South Wales area en route to Queensland.
The mother reported the child was distressed after a contact visit on 26 March 2000 and she arranged for the child to attend Mr PC, a psychologist, for counselling.
On 18 May 2000 interim contact orders were made for the father to have defined contact to JR once a month between 11.00 am and 3.00 pm in the New South Wales Central Coast area, the contact to be supervised by the paternal grandmother or other named supervisors if the paternal grandmother was not available.
In November 2000 the father commenced consulting Mr N, a psychologist.
On 28 November 2000 a Child Representative was appointed for JR.
The maternal grandmother, Mrs R, reported that during 2000 when she supervised contact between the father and the child, the father behaved in an inappropriate manner, including kissing the child against his wishes, that he made inappropriate comments to her, and that on 26 November 2000 he took the child into the men’s toilet to play with a small toy boat.
On 21 May 2001 an order was made by consent appointing Dr W, psychiatrist, to provide an expert report. Both parties were to pay one half of Dr W’s fees. The mother paid half of the fees on 30 May 2001.
In 2001 the paternal grandmother, Mrs G, acted as supervisor during day only contact and reported JR enjoyed the contact visit.
In June 2001 Mrs G commenced proceedings on her own behalf in a Local Court in the Northern New South Wales area, seeking orders for contact with the child. Those proceedings were subsequently discontinued.
On 2 July 2001 orders were made for the preparation of a Family Report, which report was subsequently prepared by Dr C, a psychologist. The earlier order appointing Dr W was discharged. However a further order for his reappointment was made on 16 July 2001.
On 20 July 2001 the paternal grandfather died.
In her amended response filed 24 August 2001 the mother sought, inter alia, the following orders:
“5. That the child have supervised contact with the Applicant Father on a Sunday nominated by the mother from 12.30pm for 2 hours and as to such contact the following provisions apply:
5.1The Respondent Mother will inform the Applicant Father one month prior to the first date, by email, a schedule of access dates no less than 6 weeks apart.
…
5.10Entirely within the Respondent Mothers [sic] discretion, a schedule may be notified that increases frequency and length of such contact if the Respondent Mother feels it is appropriate and in the child’s best interest. ”
An appointment was made for the parties to attend on Dr W on 9 August 2001. The father did not attend the appointment.
At the conclusion of the hearing before Rose J, counsel for the Child Representative provided written submissions. Those submissions included a submission that “it is a benefit for [JR] to have contact with the father but that it be a condition of such contact that he first have psychiatric treatment before any face of [sic] face contact occurs, and that after such treatment the father have continuing supervised contact at [a] Contact Centre [on the New South Wales Central Coast] arranged under the auspices of [an accredited service provider] as outlined in the pamphlet from such service …
In the meantime [JR] should have contact with the father by the father sending letters, postcards and greeting cards and also by telephone”.

Grounds of appeal

The father’s Amended Notice of Appeal filed 10 December 2004 disclosed the father was appealing all orders made by Rose J. The amended grounds of appeal included two new grounds and were as follows:
“1. Original grounds for appeal as follows:
1.1That the orders made are inconsistent with the best interests of the child’s psychological development and will result in more, not less, chronic psychological illness and dysfunctional behaviour as was reported for the 6^th month period 10^th September 1999 to the 24^th March 2000 when the child had no contact whatsoever with the father.
1.2That there is nothing of substance in these orders which will promote the development of a relationship between the father and child but to the contrary provide an opportunity to the respondent mother and others to continue to undermine that development.
1.3That the orders made could prejudice the father’s re-employment prospects in his vocational field of educational employment and will hinder the development of the child’s relationship with the father and contact between them by depriving the father of any substantial financial means to develop that relationship and assist more with the child’s financial welfare.
1.4Given the father’s past mental health history, that the orders constitute psychological abuse of the father by the Family Court of Australia and are not in the father’s best interests to promote his own development and welfare and therefore are a hindrance to the development of a relationship with the child and not in the best interests of the child’s long-term development and welfare
1.5That the orders are unconstitutional, restrict the father’s right to free speech and the right to seek free or other counselling and guidance with those who know him in his day to day life about matters of the heart and therefore inhibit his spiritual and emotional development
1.6That the orders made could prejudice activities between the father and any child in his community such as, but not limited to, church activities, Sunday School teaching and helping the children of the unfortunate or needy.
1.7That the orders made could prejudice any future activities by the father in the political realm and curtail the father’s aspirations in that direction or pursuing a family life.
2. On the following two grounds:
2.1That the judge [sic] erred in fact and in law as outlined in the document Annexed as “Table 3” and
2.2That the judgment is irredeemably flawed as the court failed to take into consideration all the evidence in its entirety and failed to take into consideration all relevant evidence available to it.
3.It is not in the best interests of the child and the child’s development for the court to make factually false and misleading statements and unbalanced findings about the mental health of either parent.
4.It is not in the best interests of the child and the child’s development for the court to make factually false and misleading statements and make unbalanced findings about the character (or personality) of either parent which imputes a bad or good character when it is no [sic] so.”
As discussed under “Introduction”, we discern the challenges to the trial Judge’s orders fall into three broad categories, namely that the trial Judge failed to admit relevant evidence, and had regard to documents which were not in evidence before him, that he erred in the exercise of his discretion in finding an order for indefinite supervised contact was in the child’s best interests, and that the injunctions made restricting the father’s right to discuss matters relating to the child were unnecessarily or improperly restrictive. We propose to deal with the father’s complaints under these broad headings. In dealing with the complaints directed to evidentiary matters, we also deal with the father’s application to admit further evidence.

Evidentiary issues

(a) Lack of procedural fairness

The father made a general assertion of lack of procedural fairness. He asserted he was denied the opportunity to make an opening submission. He also made complaint about a lack of reference by the trial Judge to Mr PC’s evidence. We refer to the latter complaint in more detail later in our reasons. He did not dispute that the trial Judge availed him of the opportunity to provide written submissions at the conclusion of the oral evidence. The father said when he commenced the appeal he had listened to and obtained parts of the transcript. He did not obtain transcript of the commencement of the hearing. Without such transcript we are unable to assess whether or not this complaint of the father has any substance. However we note that the rules in force at the time of the trial, namely the Family Law Rules 1984 provided that (emphasis added):
“Order 30 Rule 1C
(1) A party or a child’s representative may make an opening address immediately before adducing evidence.
(2) If a child’s representative makes a closing address, the address must be made before a closing address is made by a respondent or an applicant.
(3) If a respondent makes a closing address, the address must be made before a closing address is made by an applicant.”

Practice Direction No 2 of 2001 (“the directions”) came into effect on 31 May 2001 and has since been revoked. PD 16.2 of the directions provided for the preparation of a Trial Plan, which was to contain, inter alia, an indication of whether either party needed to provide a short opening statement and the estimated time required to provide such a statement.

The father’s outline of case document dated 16 August 2001 referred to an affidavit of Mr PC as a document on which he sought to rely. The filing or swearing date of the affidavit is noted to be “TAB”, which we interpret as meaning “to be advised”. In that document the father made no reference to the nature of Mr PC’s evidence, or its relevance to the proceedings. The father provided 17 pages of written submissions to the trial Judge. The only reference in those submissions to Mr PC’s evidence, or its potential importance, is contained on page 16 of the submissions where the father states:
“It is significant to mention to Your Honour that both the father and the      mother have:
·   ceased using psychiatrists in 1999, first the father about March, then the mother about June
·   had turned to their respective churches for spiritual guidance and support before and during this legal matter
·   used the services of psychologists with expertise in family matters to assist them with reports during these proceedings. The father approached Mr [N] in November 2000 and the mother approached Mr [PC] in April 2000. The curriculum vitae of these professionals is part of their evidence.”

Although we do not have the benefit of relevant transcript, we are satisfied the opportunity afforded by the then rules to file an outline of case document, the discretionary nature of Order 30 Rule 1C(1) as well as the opportunity extended to the parties to file written submissions at the conclusion of the evidence, negatives any complaint of lack of procedural fairness in respect of an opening address or opportunity to make submissions about the relevance of Mr PC’s evidence.

(b) Dr D’s file

The father sought before us to adduce further evidence on the hearing of the appeal being the file of Dr D, the mother’s former treating psychiatrist. The father asserted that the trial Judge had rejected his proposed tender of sections of the file when the mother was being cross examined. The father in his written submissions asserted the trial Judge’s decision was “irredeemably flawed” as he did not “take into consideration all the evidence in it’s [sic] entirety…”. The father particularised his complaint about Dr D’s file as follows:
“the trial judge [sic] was negligent by refusing to seriously consider that the mother’s psychiatrist, Dr [D], was medically negligence [sic] in advising her in 1995 of his diagnosis of me of a medical condition (schizophrenia) which was not that diagnosed at the same time by my treating doctor, Dr [P] (personality disorder and severe depression). This misdiagnosis created a false diagnosis trail, with subsequent mistreatment and caused exaggerated concerns and fears in his patient, the child’s mother.”
The appeal books contain limited portions of the transcript. They do not contain the transcript of the mother’s cross examination, or those portions of the transcript from which we could ascertain the basis on which the father sought to tender Dr D’s file, or parts thereof, and the trial Judge’s reasons for rejecting the tender. This lack of transcript places a substantial limitation on our ability to deal with this ground of appeal.
In the appeal, the father’s written submissions in support of tender of the file, or parts thereof, were directed to his assertion that reliance should not have been placed on Dr D’s opinion of the nature of the father’s psychiatric illness in 1995, rather the diagnosis of his own treating psychiatrist, Dr P should be accepted by the Court as the correct diagnosis. We discern the father sought to adduce this evidence on the basis that had it been before the trial Judge it would have affected the outcome of the proceedings. However, his position about the relevance of Dr D’s file changed somewhat in his oral submissions before us when he asserted the relevance of the file was his belief the trial Judge would have “formed a different opinion regarding the veracity of statements made by the mother about my mental health”.
Further, before us, the father asserted he had attempted to show portions of Dr D’s file to both the mother and to Dr W when each were being cross examined and that he was “unsuccessful in convincing the Court as to the relevance of the mother’s health”. Later in his oral submissions the father asserted sections of Dr D’s file “clearly suggest that at times she [the mother] suffers from paranoia”. The father said, because of this diagnosis, that the mother’s concerns requiring ongoing supervision may not be rational.
The portions of the transcript, which are in the appeal books, disclose the following from counsel for the Child Representative’s cross examination of the father:
“[COUNSEL FOR THE CHILD REPRESENTATIVE]: Do you believe - - -?--- In the first regard I do not believe that [the mother], from what I have seen of [the mother] during these proceedings---
Right? --- - - - and at various contact periods, I do not believe she suffers – she is currently suffering a disorder – a personality disorder.
…
- - - did you have a view that [the mother] was paranoid?---I’d say this – okay. Do you mean “paranoid” in a psychological sense, or do you mean “paranoid” in the sense that Bill Gates has used it? In this computer industry you’ve got to be – you’ve got to be a little bit paranoid because - - -
I will change – I withdraw the question?---Thank you.
…
- - - in response to a series of questions sent to you by the separate representative?---Correct.
An approved format to assist the separate representative in representing [JR]?---Yes.
The time, and in January this year, you thought the mother was paranoid?---Yes.
Thank you.And - - - ?---She was paranoid, or suffers paranoia. I thought she was paranoid.
Well, “mother paranoid”, that is in the present tense, isn’t it?---Yes.”
The father subsequently agreed he had concerns about the mother’s mental health in May 2001 when he wrote to the Legal Aid Commission which concerns essentially related to supervision. However, later in his cross examination he clarified his position as follows:
“[COUNSEL FOR THE CHILD REPRESENTATIVE:] Yes, you see, in February this year you thought [the mother] had a psychiatric problem, didn’t you?---No, former psychiatric history. Did I say “may have”?
…
Yes. Now, when you wrote that were you still of the mind in February of this year that [the mother] had a psychiatric problem?---No.
…
Right, thank you. And was one of your complaints that Mr [PC] had failed to assess [the mother] for borderline personality disorder, if not anti-social, or psychopathic - - -?---I no longer have that view about [the mother], [counsel].
I see.So when did that view - - -
HIS HONOUR: Look, just a minute, this is getting unnecessarily confusing. You weren’t asked about whether you still have that view?
---Right.
You were asked about whether that was the view that you expressed in, when was it, in January of this year?---Yes, I did express that, your Honour.
And the view that you expressed was that he had failed to diagnose the mother as a borderline personality disorder, as having a borderline personality disorder; is that right?---Yes.
[COUNSEL FOR THE CHILD REPRESENTATIVE]: You see, the documents to which I have just taken you, of this year, refer to a variety of concerns, or beliefs you have had about [the mother’s] mental health, haven’t they?---Yes
You still have a belief as at today, that she may suffer from borderline personality disorder?---No.
Psychiatric problems?---At this point in time, no.”
Given the concessions by the father that he had no concerns about the mother’s psychiatric health at the time of trial, when the mother clearly sought orders for supervised contact, Dr D’s records of the mother’s past attendances on him, could not have been relevant to support an assertion the mother’s alleged paranoia was the reason she sought supervised contact at the date of the hearing. Accordingly, we do not find that Dr D’s file could have had any relevance to support an assertion that, at the date of trial, the orders for supervised contact sought by the mother had their genesis in an unreasonable belief of the mother based on a psychiatric condition suffered by her.
Further, we are satisfied that the evidence which was relevant to the father’s psychiatric history in 1995 was before the trial Judge. That evidence included the discharge summary from the psychiatric ward of a Northern Sydney hospital which included a diagnosis of “Paranoid delusional disorder – persecutory type, paranoid personality disorder” and “Paranoid Delusional disorder if not schizophrenia marked paranoid personality disorder”.
Dr D’s correspondence with the Psychiatric Registrar at the Northern Sydney hospital dated 29 August 1995 in which he opined “I suspect that he suffers from Paranoid Schizophrenia” was in evidence before the trial Judge. It is clear that the father seeks to put in issue Dr D’s opinion, which is not a formal diagnosis, of his condition in 1995. The father failed to provide any explanation of how the admission of Dr D’s file could demonstrate an alleged error in Dr D’s opinion expressed to the Psychiatric Registrar, or how that could be relevant to the issues to be determined by the trial Judge, when the father himself had the opportunity of putting relevant expert evidence, particularly up to date evidence, before his Honour.
In these circumstances, we find the admission of Dr D’s files, or parts thereof, could not have had relevance to the issues to be determined by the trial Judge, nor could they have affected the outcome of the decision (see CDJ v VAJ (1998) FLC 92-828 at 85,447, at paragraph 109). Accordingly, we find no support for the proposition that the father should be permitted to adduce further evidence in the form of Dr D’s files.

(c) Inability to call Mr PC

The father asserted because of the way the trial progressed he was unable to call his witness, Mr PC, as he was unavailable. There is some confusion about an affidavit sworn by Mr PC on 20 August 2001. In his oral submissions the father asserted the affidavit was not before the trial Judge nor in the appeal books. At the conclusion of his submissions on this point, he asserted that the trial Judge had not made any reference to the affidavit, and was in error because he gave no weight to the contents of the affidavit. The affidavit appears in the Appeal Book Volume 1 at 247.
There is no evidence before us to indicate that either the mother or the Child Representative sought to cross examine Mr PC. Mr PC is a psychologist to whom the mother took the child for counselling in 2001. Mr PC’s affidavit comprised his response to a series of questions posed by the father dated 16 August 2001 headed “Questions for Mr [PC], Psychologist”.
An examination of the contents of the affidavit discloses it is directed to Mr PC’s methodology in preparation of a report concerning the child. Mr PC appropriately noted that he was recording information provided by the mother only. We are satisfied, particularly as the trial Judge had the benefit of the Order 30A expert report and Dr C’s report, that the content of Mr PC’s affidavit sworn 20 August 2001 was not of particular significance to the matters in issue, but rather disclosed methodology of testing procedures undertaken by him, and acknowledged limitations inherent in a report when only one party, in this case the mother, gave a history to the report writer. Accordingly we find no merit in this challenge to his Honour’s judgment.

(d) Exhibit 16

The Exhibits list from the Court file reveals Exhibit 16 comprised the following documents:
“Reports of Dr. [DG] dated 1/05/97, 15/07/97 and 23/12/99, also letter from [RO and Co] to Dr. [DG]”.
Exhibit 15 is recorded as a file from the Northern Sydney hospital and Exhibit 17 is the submission dated 2 March 2001 from the father to the Child Representative.
The father asserted that the trial Judge had erroneously relied on other parts of the file in which the letters in Exhibit 16 were located, and which were not in evidence before him, and that he was denied an opportunity to comment on all of the documents in the file. He also asserted the extracts quoted in the judgment are inaccurately recorded.
The transcript discloses the following:
“[COUNSEL FOR THE CHILD REPRESENTATIVE]: I see. Your Honour, I seek to tender these documents from the file of Dr [DG]. Once again they are each marked with a green tag.
…
[COUNSEL FOR THE CHILD REPRESENTATIVE]: A letter from Dr [DG] to [an insurance company].
HIS HONOUR: Yes?
[COUNSEL FOR THE CHILD REPRESENTATIVE]: Second is a letter, or report, 15 July 1997 from Dr [DG], two pages, to Dr [GA]. The third is a letter of 23 December 1999, I am sorry, 16 December 1999, from [RO and Co], to Dr [DG], and Dr [DG’s] reply of 23 December 1999, to those solicitors.
HIS HONOUR: Yes.
[COUNSEL FOR THE CHILD REPRESENTATIVE]: Those are the four documents, your Honour.
…
HIS HONOUR [to the father]: You have already objected, [ ] I have heard you, thank you. I am just having a look at the material to see if it should be admitted, or not. It is the reports of Dr [DG] dated 1 May 1997, 15 July 1997 and 23 December 1999, together with the letter of 16 December 1999 from [RO and Co], case solicitors, will be admitted and be – together will be exhibit 16.”
The father asserted that counsel for the Child Representative did not extract the relevant letters from his general practitioner’s file, but handed up the whole file with the relevant documents tagged. The transcript supports the father’s assertion that only four letters were tendered, but does not support his assertion that the file tendered was that of his general practitioner. The file tendered, as is clear from the transcript, was that of Dr DG, psychiatrist. The documents referred to by the trial Judge as forming part of this exhibit were:
(i)Letter from Dr DG dated 1 May 1997 (this letter was tendered as part of Exhibit 16);
(ii) Report of 15 July 1997 from Dr GA (this letter was also tendered as part of Exhibit 16);
(iii) Report dated 11 September 1997 Dr DG to Dr GR (in the Northern New South Wales area) (this report was not part of the tender nor did it form part of any other tendered documents);
(iv) Report dated 8 October 1998 Dr DG to Dr GR (in the Northern New South Wales area) (this report was not part of the tender nor did it form any part of any other tendered documents); and
(v)Report dated 23 December 1998 Dr DG to RO and Co, solicitors, in the Northern New South Wales area (this letter was part of Exhibit 16).
The trial Judge does not set out in paragraphs 75 to 82 of his reasons for judgment under the topic “Exhibit 16” the letter dated 16 December 1998 from RO and Co, solicitors to Dr DG. We do not find anything turns on that omission as relevant evidence is contained in Dr DG’s reply to the solicitors.
We turn firstly to the assertion that the portions of medical reports tendered are misquoted. We are unable to make any findings about items (iii) and (iv) above as they do not form part of the appeal books. We can discern no inaccuracy in paragraph 76 which deals with the report dated 1 May 1997 ((i) above).
The asserted extract from Dr DG’s report dated 15 July 1997 includes the following:
“His real problems appear to have started in 1995 with his admission to [a Northern Sydney hospital] for psychiatric treatment…Currently I think that [the father] is suffering from paranoid schizophrenia….I think his prognosis is poor and that he will not be able to return to a teaching role [at the technical college].”
We accept that this statement is not contained in the report, which relevantly states, inter alia, “[h]e had previously had a history of schizophrenia and had been treated at [a Northern Sydney hospital]”.
In paragraph 80 of his reasons, the trial Judge set out an extract from the report of Dr DG to RO and Co dated 23 December 1999. There are minor variations from the quote in the judgment and the original report. We have set out the actual report highlighting the omissions from the trial Judge’s quotation in the judgment:
“During my last interview with him I noticed that he was adopting ‘a stand-over manner and is grandiose and unrealistic’. When I pointed this out to him he said that this was his normal manner. He did not keep appointments after this. He was given a prescription for medication, but failed to keep the next appointment. My last contact with him was in May, 1999 when we had advice from one of his neighbours stating that he was abusing his parents and other local people.”
The misquotes are of minimal relevance, but we appreciate the errors have caused concern to the father. Overall, we are satisfied that the minor inaccuracies, whilst regrettable, do not affect the efficacy of the trial Judge’s reasoning.
The trial Judge concluded his findings, having regard to the documents which were in evidence before him, and items (iii) and (iv) above, that:
“82.During that time, although not throughout it, he has received hospital and psychiatric treatment for a paranoid schizoid personality disorder and psychotic episodes. His symptoms at times have been disturbing.”

(e) Discussion

We now turn to consider whether the trial Judge’s reliance on the two letters quoted, and perhaps the contents of Dr DG’s file, have caused a denial of natural justice to the father, or caused his Honour’s discretion to be improperly exercised.
We accept as prima facie correct the father’s assertion he was unable to comment on the contents of letters (iii) and (iv) or to call evidence contrary to those letters as he did not know the trial Judge would erroneously take them into account. The lack of opportunity of comment or to rebut documents may in some cases constitute a denial of natural justice.
We now consider whether the father’s lack of opportunity to comment on these documents constituted a denial of natural justice in the facts of this case. The documents emanated from the father’s own treating psychiatrist and would have been potentially relevant and admissible if tendered by either party or the Child Representative. It has always been the father’s case that he was misdiagnosed as suffering schizophrenia because the initial opinion of Dr D, which the father asserted was incorrect, was relied on by the Psychiatric Registrar at the Northern Sydney hospital and thereafter by other medical specialists. It would appear therefore that Dr DG’s letter of 11 September 1997 to Dr GR provided expert corroborative evidence that he did not suffer schizophrenia. It is difficult to see in these circumstances anything prejudicial to the father in this report. Similarly, the report (iv) dated 8 October 1998 referred to an improvement in the father’s condition.
At its highest, the evidence appears to contradict the father’s asserted position that he suffered a major depressive illness of severity causing psychotic behaviour in 1995 and that he was, after 1997, well and returned to studies.
What is undeniable on the evidence properly adduced before the trial Judge is that the father suffered significant psychiatric illness in 1995 and was attending his treating psychiatrist at least until May 1999. He also suffered from some psychiatric problems in about 1985 for a period of about 18 months, and similar problems in 1992.
Further, the evidence before the trial Judge of the Court expert, who reviewed all the medical files, and who commented on the father’s avoidance of attending the expert interviews, was that the father “clearly suffers from a chronic psychotic disorder, I cannot see that [the father] could not at some future time exhibits [sic] similar difficult behaviour with [JR], particularly when, as is likely as he gets older, [JR] is able to resist his father when the latter is being inappropriate with him. Contrary to what [the father] believes, I think he has a greater chance of maintaining a meaningful relationship with [JR] under conditions of supervision”.
Overall, on the facts of this case, we are not satisfied that the accidental inclusion of the two letters referred to in (iii) and (iv) above, or the minor misquotes from medical reports, either denied natural justice to the father, or caused the trial Judge to take into account erroneous or irrelevant facts such that his exercise of discretion was impaired (see De Winter and De Winter (1979) FLC 90-605).

The grounds relating to asserted failure of the trial Judge to provide for transition from supervised contact

The nub of this ground, so far as the father is concerned, was his assertion that the medical evidence before the trial Judge did not establish any present risk to the child which warranted ongoing supervision after a short period. We discern it also overlaps with the father’s complaint about supervised contact per se which we discuss shortly. It appeared to us the father conceded some period of supervision was appropriate before moving to unsupervised contact. The father also asserted before us that the mother did not seek contact restricted to a two hour period every six weeks. We propose to deal with the latter assertion before commencing our discussion as to whether the medical and other evidence supported a finding that indeterminate supervised contact was in the child’s best interests.

We have already set out the orders sought by the mother relevant to this attack on the trial Judge’s orders. In summary, the mother sought orders for two hours of supervised contact not less than six weeks apart, which periods could be increased at the sole discretion of the mother.
The Child Representative sought contact should be conditional upon the father first obtaining psychiatric treatment, and that thereafter contact take place in a contact centre conducted by an accredited service provider on the New South Wales Central Coast in accordance with the centre’s policies and regulations. The Child Representative sought orders that such contact occur on the first Saturday of each month.
Given the terms of the orders sought by the mother in her Amended Response, we do not accept that the orders made by the trial Judge were necessarily more restrictive than the orders sought by the mother. Nor, for reasons we discuss below, was it appropriate in the circumstances of this case for the trial Judge to make orders for contact to transition from supervised to unsupervised contact. Accordingly we find no merit in this ground.

Grounds relating to supervised contact/unsupervised contact/special occasion contact

The father in his written submissions said:
“The Separate Representative, instead of dealing with the issue of whether the concerns of the mother were genuinely held because of a brief, severe episode of poor mental health seven (7) years ago, has made the issue complicated by tendering numerous, inconsistent and irrelevant medical reports. They are irrelevant to the caring of a child and there is no clinical evidence of a risk of danger to the child from such an illness nor was an assessment of the mother made.
Further, the best interests of the child would be for a natural, unsupervised relationship with me and not to prejudice my return to my vocation of teaching or standing in the community.”
We have already referred to the submissions made by counsel for the Child Representative in respect of contact. In short, the Child Representative sought contact should be conditional on the father undergoing psychiatric treatment, and that contact should occur at a children’s contact centre.
In his oral submissions the father asserted:
·that although the trial Judge did not mention Mr PC’s evidence he was misled into believing contact was occurring in between September 1999 and March 2000;
·the trial Judge was misled by Mr PC’s report as to the reason for the child’s dysfunctional behaviour. The dysfunctional behaviour was because of lack of contact;
·that the trial Judge gave inappropriate weight to Mr K’s evidence;
·the trial Judge gave insufficient weight to the evidence of Mrs G;
·that the trial Judge failed to give appropriate or any weight to Dr P’s report of his assessment of the father on 29 March 2000;
·that the trial Judge improperly relied on Dr S’s report, and failed to give appropriate weight to the positive parts of Dr S’s report;
·that the orders do not promote the child’s best interest because they do not provide for special occasion contact such as the child’s birthday, Christmas day and Father’s day;
·the lack of provision for phasing in unsupervised contact;
·the effect of a supervised contact order on the father’s employment prospects; and
·failure to give appropriate weight to the child’s wishes.
The mother in her written submissions pointed out that she did not have the benefit of receipt of written submissions from the father as directed to be filed at the procedural hearing. During the course of oral argument before us, the mother very properly pointed out that many matters were raised by the father in his oral argument which were not referred to in his written submissions, and without notice, she was unable to respond to a number of matters.
In summary, the mother argued that the orders made by the trial Judge were not outside the reasonable ambit of his discretion having regard to the evidence before him. She said “[i]n reality it was only the trial judge’s [sic] acceptance of the mother’s goodwill that the level of contact was ordered. The weight of evidence in fact suggested a much more stringent regime as proposed by the Childs Representatives [sic].”
The mother also referred to reliance by the trial Judge on the oral evidence before him, particularly that of Dr W, the Order 30A expert, and the failure of the father to provide in the appeal books transcript of this evidence as well as evidence of Dr C and Mr K.

(a) Discussion

We have already discussed the father’s assertions of procedural unfairness by reason of his inability to call Mr PC. The evidence before the trial Judge included that contained in the mother’s affidavit sworn 15 August 2001 in which she reported her observations of the child’s behaviour after contact on 26 March 2000 which she said caused her to take the child to Mr PC for counselling.
It is clear that the trial Judge did not, understandably given the expert evidence before him of Dr W and Dr C, refer to Mr PC’s evidence. We are unable in the absence of transcript to establish whether the father sought to raise with Dr W, or Dr C, his assertion that the child’s behaviour in about March 2000 could have been attributable to the lack of contact between the father and the child during the period September 1999 to March 2000, or that he raised the matter with the trial Judge in his submissions. There is no reference to such a submission in the father’s detailed written submissions provided to the trial Judge after the conclusion of the evidence. In these circumstances, we are unable to discern any error by the trial Judge as asserted by the father, or that his Honour was misled by any evidence of Mr PC.
The father asserted that the trial Judge gave inappropriate weight to the evidence of Mr K. Mr K’s evidence was that he attended the same church as the mother and her family, that he agreed to act as a supervisor of contact visits and actually supervised a number of visits during 2000/2001. We do not have the benefit of the transcript of Mr K’s cross examination before the trial Judge.
The trial Judge referred to Mr K’s evidence in a general way in paragraph 38 of his reasons, and in detail in his discussion under the heading “Occasions of contact since March 2000”. His Honour accepted Mr K’s evidence of what occurred on contact occasions which he supervised.
Mr K was an independent witness who was available for and subject to cross examination. Counsel for the Child Representative in his written submissions said:
“It is the submission of the Child’s Representative that the Court can attach a lot of weight to the affidavit of Mr [K] sworn 8.8.01 as he comes forward as an independent and objective supervisor and is not seriously challenged about his evidence. Mr [K] refers to a number of incidents of JR’s reluctance to be kissed and on [sic] paragraph 92 probably gives a pretty accurate summary of the father’s inappropriate behaviour during contact.”
Doing the best we can without transcript, it appears to us from counsel for the Child Representative’s submissions that Mr K was not seriously challenged in cross examination, and it was open to the trial Judge to accept his evidence in its entirety. In so finding we are cognisant of the unique opportunity afforded to the trial Judge of observing Mr K give his evidence.
The father challenged the findings of the trial Judge about Mrs G. His Honour said “[t]he maternal grandmother was not shaken in her evidence and I accept it whereas the paternal grandmother was often vague in the manner in which she gave her evidence.”
We do have the benefit of part of the transcript of Mrs G’s evidence. Before us the father submitted that Mrs G was unable to properly hear and understand questions put to her, partly because of a four second delay in the video equipment. Mrs G’s evidence was taken by video using facilities provided by a local technical college in the Northern New South Wales area. It reveals:
“HIS HONOUR: [Mrs G], [the mother] will have a few questions for you so she will ask you a question in a moment?---I’m not going to answer any more questions, your Honour, unless I have a solicitor here. So far as I’m concerned the interview is finished.
Mrs [G], you have to answer questions and that’s the reason why this was established. So I’d ask you to remain there until the questions are finished. [To the father:] Yes [ ].
…
CROSS-EXAMINATION BY [THE MOTHER]
[THE MOTHER]: Hello [Mrs G], it’s [the mother] here.
HIS HONOUR [to the mother]: Go on [ ]
[TECHNICAL COLLEGE] OFFICER: I’d ask you if you could speak up a bit, please - - -
HIS HONOUR: She’s answering questions.
[TECHNICAL COLLEGE] OFFICER: We’re just having a bit of difficulty hearing you through the speaker.”
Thereafter the mother was asked a series of questions about whether contact should be supervised or unsupervised, and about the father’s medical condition. The transcript does not suggest, after the initial difficulty in hearing through the speaker, that Mrs G was unable to understand questions put to her by the mother.
It appears that counsel for the Child Representative’s cross examination has not been transcribed.
Whilst we accept that there may have been some technical difficulties associated with the use of the video equipment, we are not satisfied from the portions of the transcript available to us that Mrs G was unable to understand questions put to her by the mother. The trial Judge had the benefit of observing Mrs G on video whilst she gave her evidence. There is nothing of significance in the transcript in the Appeal Books which supports the father’s oral assertions before us. Accordingly we do not accept that the trial Judge’s findings about the evidence of Mrs G, as compared to that of Mrs R, were not open to him on the evidence.
The main thrust of the father’s grounds relating to supervised contact are directed to his assertion that his medical condition was wrongly diagnosed in 1995 by the Psychiatric Registrar at the Northern Sydney hospital relying on Dr D’s opinion, and that thereafter other experts have based their opinions on the earlier misconceived diagnosis of schizophrenia. The father in his oral submissions before us, and in his written submissions before the trial Judge, asserted the trial Judge failed to give significant weight to the evidence of the father’s treating psychologist, Mr N, or the letter of Dr P dated 4 April 2000 which became Exhibit 33 before the trial Judge.
Dr P had not treated the father since 1995 but he provided a letter at the request of the father. Dr P noted:
“I explained to [the father] that he may require an assessment from a child and family psychiatrist. He did not wish to start antipsychotic medication, and on assessment there were no overt symptoms of psychosis.”
Mr N is a psychologist carrying on practice in the Northern New South Wales area. He had seen the father regularly prior to the hearing. He reported “[h]e [referring to the father] acknowledges that under severe stress he does experience some paranoid thinking. I have observed some occasions when [the father] was under stress and would agree that he displayed some paranoid thinking.” Mr N made a recommendation that, if the child was not at risk in the father’s company, he would recommend unsupervised contact. It was clear that Mr N, although having had extensive contact with the father, had not observed the father and the child together, other than on a video shown to him by the father.
The trial Judge did not specifically refer to Dr P’s letter dated 4 April 2000. Dr P did not appear as a witness in the father’s case. It was clear he had not seen the father from 1995 except for the purpose of obtaining the report in 2000. We are satisfied in these circumstances the trial Judge could place little weight on the letter.
As we raised with the father in his oral submissions, he did not put any evidence before the trial Judge of his present psychiatric state. We accept that Dr P expressed the view that he was reluctant to become involved in the family law proceedings, and referred the father to Dr BW, an expert child psychiatrist. We accept that Dr BW provided a report in which he noted his expertise was limited to child psychiatry. Whilst there was some evidence before the trial Judge that the father had experienced some difficulty in obtaining an expert psychiatric report for use in the proceedings, we are not satisfied it was impossible for the father to do so.
The father annexed to his affidavit sworn 13 August 2001 a letter from his general practitioner Dr S dated 6 April 2001. Dr S said:
“I have been [the father’s] treating General Practitioner for the past 14 months, and in that time he has not had any acutely psychotic episodes requiring admission or anti-psychotic medication. In particular, he denies delusions and/or hallucinations, and I have not observed either. He has occasional thought disorder, primarily observed by me as circumlocution. In the time in which I have been his General Practitioner, there has been no evidence of psychosocial deterioration, though he has been observed to be socially inappropriate at times, with a general lack of insight into the effect his behaviour has on those around him. [The father] is actively involved in a local church and in [a] Masonic Lodge and he is currently self-employed.”
We find it is of significance that the father could have participated in the interviews with Dr W but did not attend. However he sent extensive written material to Dr W who said:
“Although I did not have the opportunity to observe [the father] with [JR], I would have many doubts about his capacity to parent [JR] or to have unsupervised contact with him. This opinion is based on his non-participation in this assessment, and on his failing to understand the need for an assessment to be undertaken by the Court. His written productions indicate a particularly rigid mind set, and seem to be about self-justification, denigration of his ‘opponents’ and a misrepresentation of the facts – particularly in relation to his mental illness. All professionals who have dealt with [the father] over an extended period of time whose records I examined, commented on his insightlessness and on his paranoid thinking which at times has been of delusional intensity. The long standing nature of his psychotic illness and the lack of insight into it on his part make for a totally unsuitable combination in relation to accurately perceiving the needs of a child.”
We are satisfied that the trial Judge’s rejection of Mr N’s qualified recommendation of unsupervised contact was well open on the evidence. As the trial Judge noted, Mr N’s evidence was limited by the restriction he had not seen the father with the child. Further, Mr N’s report contained evidence, similar to that found in the other expert reports, of the father demonstrating thought disorder and socially inappropriate behaviour during the period the father consulted him.
The trial Judge, having assessed all the evidence, and having the benefit of comprehensive written submissions from the parties and counsel for the Child Representative, did not make findings the father was suffering schizophrenia, but rather accepted Dr W’s opinion “regarding the father suffering from a psychotic illness, and his lack of insight into the nature of the illness and the way it has manifested itself”. Nothing that the father has taken us to supported the contention that this finding, or the trial Judge’s findings that the father had been treated for a paranoid schizoid personality disorder and psychotic episodes, was not open to the trial Judge on the evidence before him.
The trial Judge referred to a number of recommendations and conclusions of Dr W which he accepted:
·whilst the father was not having psychiatric treatment then supervised contact for two hours was sufficient;
·if the father was having treatment, co-operating and showing signs of improvement in his psychiatric condition, supervised contact could be extended to four hours. The mother could reach such agreement if she was satisfied with the situation;
·in the context of a psychotic person who was unmedicated, the absence of overt symptoms on one day was not indicative that state would remain in two weeks’ time;
·the father should be given an opportunity to establish his good faith in developing a relationship with the child. Such good faith required the father to attend on time, not to cause pressure to the child, or pressure on the mother which would affect the child;
·the mother’s fear the father may become psychotic during a contact period was a reasonable fear; and
·it was appropriate for the mother to monitor telephone contact.
We accept that in many cases the effect on children of indefinite, long term, supervised contact, particularly if such contact is to continuously occur in a children’s contact centre, may not be in a child’s best interests. However, in this case, the trial Judge rejected the Child Representative’s proposal for contact to take place in a children’s contact centre but rather made orders for contact to occur in a more natural environment. We accept, in the light of the expert evidence, the trial Judge did not err in the exercise of his discretion in providing for ongoing supervised contact.
The father is critical that the orders do not provide for contact on special occasions such as Christmas Day, the child’s birthday and Father’s Day. The mother in her material noted the difficulties in providing appropriate supervisors on days such as Christmas Day and the father’s rejection of contact when offered on Boxing Day. His Honour, being cognisant that the father was not undergoing any treatment, nor did he have any proposals to instigate treatment, had regard to the expert evidence that unsupervised contact could expose the child to a psychotic episode or other inappropriate conduct by the father. The trial Judge made findings that the mother would foster contact based on her proposals, which were more flexible than the orders proposed by counsel for the Child Representative. In these circumstances we are not satisfied that in framing the orders as he did the trial Judge took into account any extraneous matter, or failed to give proper and appropriate weight to any relevant matter.
A number of the father’s grounds were directed to the effect of the supervised contact order on his ability to gain employment, and/or pursue a political career. It was submitted by the father that these perceived impediments to him would indirectly affect the best interests of the child. We are unable to ascertain whether this proposition was put to either Dr C or Dr W, or whether the father referred to this matter in closing submissions to the trial Judge. This submission does not appear in his written submissions. In these circumstances, and absent any clear evidence of the nexus between the orders, the father’s employment capacity, and the best interests of the child before the trial Judge, we discern no error by his Honour in failing to have regard to this issue.
The father also asserted the trial Judge failed to give sufficient or appropriate weight to the child’s wishes. The trial Judge carefully recorded the child’s wishes, and noted there was no evidence of “the child’s wishes in terms of differentiating between supervised and unsupervised contact”. There is no challenge to this finding. The child was aged seven years at the time of the trial. Given his age, and lack of maturity, his wishes could not be determinative of the issues before the trial Judge. It is clear from his Honour’s reasons that he carefully recorded and gave appropriate weight to the child’s wishes, and that his wish to continue to have contact with the father was one factor taken into account when making orders for supervised contact. We discern no error by the trial Judge in the weight afforded to the child’s wishes.

The injunction ground

The father relied on ground 1.5 in his amended grounds of appeal and sought that all orders made by the trial Judge should be discharged. In particular he asserted in his written submissions that order 9(b) was unconstitutional, that it limited his right of freedom of association, and in particular, because it was so widely drawn, that it restricted him discussing his problems about these proceedings or the child with members of his own family, his Minister, or benefiting from counselling at an accredited counselling service, where he had attended in the past and received support.
Order 9 of the orders made by the trial Judge is in the following terms:
“9. That the father is restrained from:
(a)contacting directly or indirectly by telephone or otherwise any of the mother’s work colleagues, family members or church members;
(b)communicating orally or in writing with any person other than the father’s legal representative, his medical practitioner or his psychologist in relation to the mother or any of her family members, work colleagues or friends or acquaintances;
(c)communicating orally or in writing with any person other than his legal representative for the purpose of seeking information in relation to the child’s health, academic, sport, or any other activity in which the child has been or may be engaged, other than with the written consent of the mother first having been obtained;
(d)sending the mother correspondence, documents or any other communication whether orally or in writing other than in accordance with the Orders made this day.”
The mother in her Amended Response filed 24 August 2001 sought inter alia the following orders:
“7. That the Applicant father is hereby restrained from:
7.1Seeking to have contact with the child or any other of the Respondent Mother’s children other than in the manner set forth in these orders.
7.2Contacting personally or by telephone or otherwise any member of the Church at which the Respondent Mother attends.
7.3Entering, loitering about, or coming within 500 metres of the Respondent Mother’s place of work or residence.
7.4Having contact knowingly with the Respondent Mother’s work colleagues or members of her family or church.
7.5Approaching or seeking to gain access to
The child’s medical files
The child’s school and authorities attached to the school at which the child attends
Any religious, recreational, musical or sporting body the child may be involved with
7.6Contacting the Respondent Mother or her family by any means with the exception of notification of location of access in accordance with paragraph 2.5.
7.7Sending messages or correspondence to the Respondent Mother by way of other parties including the access supervisor and the child.”
At the conclusion of the hearing, and attached to his written submissions, counsel for the Child Representative set out orders sought by the Child Representative. Counsel noted “[t]he Child’s Representative does not support the wide restraint sought by the mother in her last amended application.” The relevant orders sought by the Child Representative were:
“10.That the father be restrained from contacting the mother in writing or email or otherwise save as otherwise provided in these Orders.
…
13.That the father is restrained from:-
13.1Entering, loitering about, or coming within 500 metres of the mother’s place of work, residence and worship unless with the prior written consent of the mother.
13.2Seeking to gain access to any medical files pertaining to [JR].
13.3Seeking to gain access to any school attended by [JR] or the staff or Principal of any school attended by [JR].
13.4Seeking to gain access to any religious, recreational, musical or sporting body or organisation in or with which [JR] may be involved.”
The trial Judge made findings in paragraphs 147 to 148 of his reasons for judgment that the father had “engaged in inappropriate conduct”. His Honour said:
“[i]nappropriate conduct so far as the mother is concerned by engaging in correspondence with others as to the mother’s alleged psychiatric history including the father’s diagnosis of it. In addition, he has seen fit to use occasions of contact to make comments upon the mother’s male acquaintances and her relationship with them.
…
148. The father claims that he is no longer focussed on his past relationship with the mother. I am not convinced that that is the case. Accordingly, the substantial injunctive relief sought by the mother will be granted. There will not be any prejudice to the father in doing so, if indeed it is his intention not to engage in the activity from which he will be restrained.”
We accept the father’s evidence that he has been involved with his local Anglican church, and has sought and obtained assistance from an accredited counselling service from time to time. We are satisfied that order 9(b) as drafted is not supported by the evidence, and precludes, on its face, the father accessing valuable assistance such as that provided by the accredited counselling service. We accept it also restrains the father discussing any matter about the mother with members of his own family. The order in its terms is more restrictive than the orders sought by the mother, and certainly more restrictive than that sought by the Child Representative. Accordingly, we are satisfied there is merit in this complaint of the father.

Re-exercise of the discretion

We are satisfied the evidence supports a finding that the father has in the past inappropriately contacted the mother’s work colleagues and her Pastor. He has clearly communicated in writing with other professionals involved with JR including Mr PC, Dr C and Dr W. We are satisfied that restraints on such conduct as provided for in order 9(a), (c) and (d) are justified on the evidence and adequately address the matters likely to impact on the mother and therefore JR’s welfare. However the provision in order 9(b) restricting the father personally communicating with “any person” other than a very limited class of professionals is too widely drawn and not supported by the evidence. We therefore in the re-exercise of our discretion propose to discharge order 9(b).

ORDERS

1. The appeal is allowed in part.
2. Order 9(b) of the Orders made 31 January 2002 is discharged.

I certify that the preceding 117 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.

Associate

[2006] FamCA 293

27 April 2006

Key Legal Topics

Areas of Law

Civil Procedure

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Appeal