RIMMINGTON & HEALEY
[2014] FamCAFC 140
FAMILY COURT OF AUSTRALIA
| RIMMINGTON & HEALEY | [2014] FamCAFC 140 |
| FAMILY LAW – APPEAL – CHILDREN – WITH WHOM THE CHILD IS TO LIVE – PARENTAL RESPONSIBILITY – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the parties’ twin sons and the father would have no time or communication with them – where the father represented himself on the appeal – where the father’s Notice of Appeal contained 45 grounds – where, during the appeal, the father condensed his challenges to ten “grounds”– where the majority of those “grounds” were premised upon the contention that the trial judge erred in accepting the mother’s evidence over his own evidence – where no such error was demonstrated – where the father also contends that the trial judge made various errors of law and errors of fact – whether the trial judge so erred – where no error demonstrated – appeal dismissed – father ordered to pay the mother’s costs of the appeal. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Family Law Rules 2004 (Cth) |
Angaston and District Hospital v Thamm (1987) 47 SASR 177
CDJ v VAJ (1998) 197 CLR 172
Devries v Australia National Railways Commission (1993) 177 CLR 472
Donaghey & Donaghey (2011) 45 Fam LR 183
In the Marriage of N and S and The Separate Representative (1996) FLC 92-655
LC & TC (1998) FLC 92-803
Lenova & Lenova (Costs) [2011] FamCAFC 141
Russell & Close (Unreported, Full Court of the Family Court of Australia, Fogarty, Baker and Lindenmeyer JJ, 25 June 1993)
Simply Irresistible Pty Ltd C Couper [2010] VSC 505
Verge v Devere Holdings Pty Ltd (2009) 258 ALR 464
Zantiotis & Zantiotis (1993) FLC 92-367
| APPELLANT: | Mr Rimmington |
| RESPONDENT: | Ms Healey |
| INDEPENDENT CHILDREN'S LAWYER: | Legal Aid |
| FILE NUMBER: | SYC | 1762 | of | 2009 |
| APPEAL NUMBER: | EA | 137 | of | 2012 |
| DATE DELIVERED: | 7 August 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 23 August 2013 & 13 February 2014 |
LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 September 2012 |
| LOWER COURT MNC: | [2012] FamCA 810 |
REPRESENTATION
| THE APPELLANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Wong |
| SOLICITOR FOR THE RESPONDENT: | Dettmann Longworth Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : | Legal Aid NSW not participating |
Orders
The Amended Application in an Appeal to adduce further evidence filed 5 August 2013 is dismissed.
The Further Amended Notice of Appeal filed 9 July 2013 is dismissed.
The appellant father pay the respondent mother’s costs of the appeal as agreed in writing between the parties or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington & Healey 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 SYDNEY |
Appeal Number: EA 137 of 2012
File Number: SYC 1762 of 2009
| Mr Rimmington |
Appellant
And
| Ms Healey |
Respondent
REASONS FOR JUDGMENT
A twelve-day trial of parenting issues before Watts J involved a number of gravely serious allegations and counter-allegations, any of which, if made out, can be seen to place young twin boys, B and A (born 2008) at grave risk of physical, psychological and/or emotional harm.
The mother alleged that the children had been sexually abused by their father. In addition, the mother told a reporting expert psychiatrist that “it is possible that [the father] would kill one of the boys to get back at her.” The same reporting psychiatrist suggested that the children were at risk of the mother committing what the trial judge’s reasons refer to as “an altruistic murder/suicide or suicide.”
Evidence before the trial judge suggested that the father had harboured homicidal ideation toward the children specifically associated with events which occurred on and after 20 July 2012. Those events concerned the father removing the children from a Contact Centre and the subsequent retrieval of the children by the police. Other evidence pertaining to those events elicited an assertion by the mother that the father had contemplated suicide at that time.
Each of the parties has a history of mental health difficulties. The mother had been admitted to hospital for psychiatric care on two earlier occasions and had been receiving treatment from a psychiatrist and counsellor for some years. The mother contended that, if an order was made that the children live with their father, she would absent herself from their lives.
The trial judge made findings of “bizarre behaviour” by the father during the course of the trial (at which he represented himself). The events of 20 July 2012 resulted in the reopening of proceedings before his Honour at which evidence was tendered pertaining to the father’s admission as a psychiatric inpatient at a hospital.
The terms of the parenting orders ultimately made by the trial judge, expressed broadly, accorded the mother “sole parental responsibility” for the children and provided for them to live with her and spend no time with their father.
The father appeals those orders.
As will emerge, the hearing of the appeal occurred over two days. The Bench could not, unfortunately be reconstituted for some months subsequent to the first day of hearing on 23 August 2013. The hearing resumed on 13 February 2014.
The Grounds of Appeal as Drafted
The Further Amended Notice of Appeal filed on 9 July 2013 contains 45 purported grounds of appeal. In a previous iteration, the Notice of Appeal stretched to some 55 pages. A directions hearing resulted in the father amending the latter document.
The father prepared the various Notices of Appeal, his Outline of Argument and the (extremely voluminous) appeal books himself. He also conducted the appeal himself. The father is legally trained but has never practised as a lawyer. The Court determined – generously to him – to treat him as if he was a self-represented litigant effectively without legal training.
The directions hearing was intended to, among other things, bring order and specificity to the father’s challenges to his Honour’s orders; the earlier Notice of Appeal was prolix and for the most part incomprehensible. The vast majority of the purported grounds contained within it could not be described as grounds of appeal at all, nor did they appear capable of being reframed so as to elucidate any appealable error.
The Further Amended Notice of Appeal suffers from many of the same difficulties.
Part, at least, of the difficulties inherent in the grounds now relied upon in the Further Amended Notice of Appeal is that, rather than purporting to identify appealable error in respect of findings central to his Honour’s ultimate orders, an attempt is made to carry out a line-by-line analysis of the reasons that extend for some 62 pages (plus annexures) and 421 paragraphs. Some challenges to factual findings are not only taken out of context, but, additionally, many relate to matters that are plainly part of a background narrative as distinct from matters central to findings relating to the profoundly serious issues with which his Honour was confronted.
As will shortly be related, in an attempt to elucidate the substance of the father’s challenges in a manner most favourable to him, some significant time was spent by this Court seeking to condense the grounds as relied upon into a comprehensible form. As distilled, these became the “grounds” upon which the appeal was argued. We will refer to those “grounds” and the process by which they evolved shortly.
It is, however, nevertheless important we think to set out the grounds as they appear in the Further Amended Notice of Appeal (errors and emphasis in original):
1.The Judgment’s “Conclusion about Best Interests” (Reasons 397 to 403) involves findings of fact which cannot be supported by the evidence; wrong application of law; exercise of discretion to arrive at a decision that is clearly wrong; and/or a denial of procedural fairness:
Mandating that innocent 4 year old twin boys have zero contact with their father, for reason of a mother’s irresponsible allegation that she would abandon them forever, is clearly wrong.
2.The Judgment’s mandating that innocent 4 year old twin boys have zero contact with their father for the rest of their childhood and their entire youth, based on evidence that a mother is unwilling to facilitate their contact with the father, when the Court is on actual notice of settlement discussions which unambiguously contradict that evidence, is clearly wrong.
3.The following recorded conduct of the Presiding Judge are incompatible with requisite procedural fairness or the appearance thereof being afforded to the father:
Transcript (Volume 2 page 303):
His Honour: “I’m sorry [Mr Rimmington]. You mustn’t have been following what happened this afternoon. There is no affidavit by [Ms Healey]; there is no affidavit by her father that is going to be before me on a reopened hearing.”
[Mr Rimmington]: “I say that’s evidence of they’re willing to perjure themselves before your Honour.”
His Honour: “Yes. Well I’m not prepared to entertain that evidence.”
4.The Judgment’s attribution of “abduction” to the father’s conduct on 20 July 2012 in its headline summary note, in circumstances where the Presiding Judge was on actual notice that in the opinion of the New South Wales Police the Father had acted entirely within his lawful rights on 20 July 2012, demonstrates an absence of procedural fairness arising from the Presiding Judge’s failure to maintain due objectivity and impartiality required of his role.
5.This findings of fact in Reason 37 cannot be supported by the evidence:
“The mother, by and large, gave reliable evidence in a relatively straightforward manner.”
6.These findings of fact in Reason 264 cannot be supported by [Ms G’s] evidence:
“I find having listened to the mother and observed her when giving her evidence about no longer seeing the children if they are placed with their father that her convictions are heartfelt and genuine. I accept that she has the intentions that she has expressed.”
Transcript (Volume 2 page 180):
[Ms G]:“My last conversation with her, on the 8th of this month, involved her saying that she would want to act in the children’s best interests, and that she would consider her options after the court case.”
His Honour: “That’s not what she said to me.”
7.These findings of fact in Reason 241 (a) cannot be supported by the evidence and (b) demonstrate failure by the Presiding Judge to properly listen to the father’s case:
“I find that both parents should bear some responsibility for [B] being scalded that day. I accept the mother’s version as to the extent of the injury.”
The absence of any injury whatsoever to [B’s] fingers in December 2008 is clear from (a) affidavit and oral evidence of the father; (b) the evidence of each of the maternal grandfather and the paternal grandmother that the ‘mug of tea’ event resulted in no visible injury to [B’s] fingers.
8.Reasons 232 to 247 comprise a failure of procedural fairness in not demonstrating an understanding or a proper hearing of the father’s case: Those Reasons demonstrate no understanding, that the only conceivable material relevance of the alleged events in November and December 2008, first described at Volume 1 pages 274-277, are as follows:
1.Were such allegations genuine (as trivial as they are on face value); or false and/or vexatious?
2.How such allegations can conceivably credibly under-pin the mother’s claim, that those events triggered a genuine fear on her part, that her then husband did/would deliberately harm/kill babies?
9.These findings of fact in Reason 38 (a) cannot be supported by the evidence, and/or (b) are exercises of discretion to arrive at a decision that is clearly wrong:
“There is one occasion where I find, on balance, that the mother was mistaken about the location from which the father made a telephone call…In this instance the mother’s memory has proven to be unreliable.”
The alternative finding (the mother was willing to lie to the police in August 2011) invites adverse inference as to the mother’s credit, and specifically as to her willingness to lie to police in May 2011.
10.The Judgment fails requirements of procedural fairness as it fails to demonstrate that the Court understood the father’s case and/or gave a proper hearing of the father’s case and more specifically the Judgement fails to demonstrate its countenance of any of the following:
1.Any of the father’s fifty six (56) Final Submissions appearing in Exhibit 54 (respectively named “A” to “I”; “J-1 to J-3”; “K1 to K4”; “O”; “P-1 to P-6”; “Q to Y”; two x “Z”; two x “AA”; “AB to AU”);
2.The mother’s conducts on 12 October 2008; 1 July to 29 August 2009; 6 July to 6 October 2011;
3.The mother’s wilful blindness to the father’s life saving conduct/intention, responding to coincidence of [B’s] apparent anaphylactic shock, witnessed by 3 police officers on 20 July 2012;
4. The parties’ respective first post-separation correspondences;
5.Such indisputable facts as arise from the ‘audit trail’ of further correspondences in 2008 including the change evident in the mother’s approach to the father upon re-appointing Dettmann Longworth;
6.The testimony of the father’s ‘key witness’, [Mr AG] and his email of May 2008;
7.The testimony of the ‘best friends’ of the [Healey] family in [Town D], [Mr & Mrs Z];
8.The favourable testimony as to the father’s character or conduct provided by the following 11 persons, in addition to [Mr AG] and [Mr & Mrs Z], under examination at the final hearing [Mr HH], [Mr AH], [Ms RRR], [Mr CCC], [Ms MC], [Ms MM], [Ms SM], [PS], [Mr P], [paternal grandparents];
9.The deferment by the Independent Expert to opinion of the “cohort” of the father’s supporters;
10.Fact and content of the father’s note in May 2008 identifying all the mother’s known complaints;
11.Material conflicts between video and audio evidence and the allegations of the mother’s family.
11. This finding of fact cannot be supported by the evidence:
Reason 171:“The father did not record any of the particular events that are in dispute”
12.This is an exercise of discretion to arrive at a decision which is clearly wrong:
Reason 171:“I do not place significant weight on the audio or video material”
13.This is an exercise of discretion to arrive at a decision which is clearly wrong:
Reason 171:“The audio tape the father made of the incident on 20 July 2012 was not provided by him but I have more than adequate evidence what happened that day”
14.These findings of fact in Reason 55 (a) cannot be supported by the evidence, and/or (b) are exercises of discretion to arrive at a decision that is clearly wrong:
“Wherever there is an inconsistency between a conversation that the father asserts took place and an alternate version of that conversation by another person, I treat with great caution the version of the conversation asserted by the father. Unless I indicate otherwise, where the evidence of the mother and the father conflicts, I prefer the evidence of the mother over that of the father.”
15.This finding of fact in Reason 57 (a) cannot be supported by the evidence, and/or (b) is an exercise of discretion to arrive at a decision that is clearly wrong:
“I generally find that the maternal grandparents gave evidence in a straightforward manner.”
16.Reason 387 contains the risk of material intimation(s) by the Presiding Judge to Appellate Courts which is incompatible with the appearance of procedural fairness to the boys’ father:
“if my orders are allowed to stand, then on balance it is likely that the litigation will end in the short term and hopefully in the medium term”
17.The Judgment fails to demonstrate the correct application of the principle of Zantiotis & Zantiotos (1993) FLC 92-367 and Angoston and District Hospital v Thamm nor was the father afforded the justice required by that principle at any relevant time during the final hearing.
18.In the alternative to Ground 17, none of the examples in Reasons for Judgment of the court room conduct of the father corroborate allegations of the mother regarding either (a) the father having any, let alone pathological desire, for revenge for the mother leaving the marriage (b) the father’s conduct during the marriage or (c) any risks at all to [A] and [B].
19.In the alternative to Ground 17, the Reasons for Judgment fail to demonstrate any allowance at all, for genuineness of the father’s belief that each & every allegation made for the mother is untrue, and arises solely owing to the following wish on behalf of the three resident adults:
Transcript (Volume 2 page 93):
“the [Healey family] wanted [Mr Rimmington] out of their life and would do anything to get him out of their life”
20.The Judgment’s rejections of opinions of psychiatrist [Dr W] in favour of different opinions of the mother’s personal psychiatrist [Dr S], without demonstrating requisite reasons for preferring the mother’s evidence over the evidence of the Independent Expert, were exercises of discretions contributing to decisions that are clearly wrong.
21.In the course of making determinations to the effect of 1 and 2 below, the Judgment’s failure to demonstrate any consideration of the submission by the ICL, that the best interests of the boys may require in the future, new orders for them to live with their father, was a wrong application of law, and/or exercise of discretion to arrive at a decision that was clearly wrong:
1.Determination which permanently extinguishes the boys’ relationship with their father;
2.Determination which fetters flexibility for the Family Court, to make future orders for the boys to live with their father, owing to its own prior extinguishment, of the boys’ ties with their father.
22.The Judgment fails to correctly apply the Principles appearing in Donaghey & Donaghey [2011] FamCA 13 or to appreciate and apply the logical extension of same.
23.The Judgment fails to correctly apply the Principle of Russel v Close (Unreported, Family Court of Australia, Fogarty, Baker & Lindenmayer JJ, Appeal SA 45 of 1992, 25 June 1993).
24.The Judgment fails to correctly apply the Principle of In the marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655 (majority).
25.The Judgment’s failure to demonstrate any countenance or assessment, of the father’s specific allegations as to material professional failings of the Independent Expert and/or the Independent Children's Lawyer, is incompatible with the requirements of procedural fairness.
26.The Judgment’s failure to demonstrate any countenance or assessment, of the father’s specific allegations as to material professional failings of the Independent Expert and/or the Independent Children's Lawyer, contributed to decisions that are clearly wrong.
27.The Judgment’s failure to demonstrate any countenance or assessment, of the father’s specific allegations as to material ethical failings of the mother’s solicitor, is incompatible with the requirements or procedural fairness.
28.The Judgment’s failure to demonstrate any countenance or assessment, of the father’s specific allegations as to material ethical failings of the mother’s solicitor, contributed to decisions that are clearly wrong.
29.Each of these procedural directions or omissions by the Presiding Judge are inconsistent with requisite procedural fairness or the appearance thereof being afforded to the father:
1.Direction to the father on 29 March 2011, clearly against the father’s own wishes, to amend his Application (which prior to that First Call-over was limited to the period until the boys will commence school) to the date of the boys’ 18th birthday. [Within 5 weeks of that First Call-over, the mother filed an Amended Response, proposing to permanently extinguish the boys’ relationship with the father].
2.Direction to the father on 29 March 2011, to refrain from filing his ‘1st response’ to the allegations of the mother prior to the completion of the Expert’s updated report, in which report the Expert was to opine on genuineness of the mother and the maternal grandfather that the father would ‘kill’;
3.Failure to make directions, as proposed, on matters to be ventilated at the final hearing;
4.Declining father’s request, for opportunity to suspend his cross-examination of the Independent Expert, and to brief Senior Counsel to resume his cross-examination of the Independent Expert at the resumption of the final hearing, which His Honour had already flagged would occur in April 2012;
5.Direction the father to refrain from examining his former mother-in-law, on video evidence (of convivial and relevant conversation of the parties and [Ms CC Healey] at the parties’ matrimonial home) being video recorded in the hours preceding, what the father alleges to be fictitious allegations by [Ms Healey] and [Ms CC Healey], of events at the matrimonial home shortly after the children’s birth;
6.Directing the father to terminate his questions, during the father’s examination of the mother as to her willingness to lie to [Town D] Police, on what words the mother heard him speak on the phone, when her father’s evidence records [Mr Healey] hearing [Mr Rimmington] say additional words, as [Mr Healey] hung up on [Mr Rimmington] (leaving, according to the mother’s evidence, herself still on the phone call with [Mr Rimmington]);
7.Preclusion of opportunity for father to examine the mother and her father on their affidavits arising from events on 20 July 2012 inclusive as to “The effect on the mother” of same (Reasons 315-316).
30.The rejection in Reason 401 of the Independent Children's Lawyer’s proposal “to allow the children to continue to have a relationship with their father” on the basis of Reason 401.3 (a) is a wrong application of Section 66C of the Family Law Act; (b) requires assumptions of facts which cannot be supported by the evidence; and (c) is not compatible with affording procedural fairness or its appearance to the boys’ father.
31.The following passages in Reasons 418 and 419 are findings of fact that (a) cannot be supported by the evidence and (b) are not compatible with procedural fairness to the father:
“I have little evidence about the father’s actual financial position.”
“The father is however currently in full time stable employment.”
Reopening of the Case – Reasons 277 to 327
32.Procedural fairness requires that the findings in Reasons 277 to 327 be reviewed in light of the volume and quality of evidence now available on the events on 20 July 2012 arising during the father’s continuing defence of Local Court proceeding at [Town I] during 2013 (or that the parties consent to the setting aside of those findings and their impact on the orders).
Homicidal ideation on 20 July 2012 – Reasons 288 to 295
33.This passage in Reason 291 is not compatible with procedural fairness to the boys’ father:
“the father said to her words that indicated the father would contemplate killing himself”
34.This passage in reasons 294 and 295 is a finding of fact that (a) is not compatible with procedural fairness to the boys’ father and (b) cannot be supported by the evidence:
“What is disturbing about that evidence is the father’s concession that he could have in fact at some point said that he would drive off a cliff with the children, even though the father protests that the statement was a cynical one”
Risk to the children on 20 July 2012 – Reasons 296 to 303
35.Each of these three passages in Reason 296 (a) cannot be supported by the evidence and (b) is not compatible with procedural fairness to the boys’ father:
“I find the father had an acute event on 20 July 2012 during which he indicated to at least three professionals that he had thought of killing himself in the future”
“That acute event took place during a period of time when he had the children alone for a period of four hours”
“During this time, that father’s state of mind and behaviour was such that the children were at risk during that period of time”
36.In the alternative to Ground 35 Reason 296 is a finding of fact which cannot be supported by the content of the digital audio recording of the boys’ entire time alone with their father on 20 July 2012 which is re-produced (with minor errors advised to the Court at the final hearing by the father) in evidence at Pages 1442-1443 of Volume 1.8.
37.In the alternative to Ground 35, Justice Watts’ exercise of discretion to not call upon the father to produce a copy or transcript of the father’s digital audio recording of the events of 20 July 2012, prior to making findings of such a materially adverse nature to the boys’ father on the same events (a) resulted in findings of fact that are clearly wrong and (b) in the given circumstances, was manifestly incompatible with procedural fairness to the boys’ father.
38.This passage in Reason 301 (a) cannot be supported by the evidence and (b) is not compatible with procedural fairness to the boys’ father:
“It was in this state of high anxiety that the father had the boys for the next four hours, including according to the father’s oral evidence, for a period of time beside a dam.”
39.Each of these passages in Reason 303 (a) cannot be supported by the evidence and (b) is incompatible with procedural fairness to the boys’ father:
“In fact, anything could have happened.”
“The father was not totally in control of his own actions and to have the boys with him for four hours in his frame of mind I find did put the children at material risk in that period.”
“I find consequently that the father made statements to three different persons to the effect that he had recently or was at the time he was talking to them, contemplating suicide.”
Suicidal Ideation on 20 July 2012 – Reasons 304 to 314
40.This passage in Reason 307 (a) cannot be supported by the evidence and (b) is not compatible with procedural fairness to the boys’ father:
“On the two of the three occasions that the father referred to suicide to Senior Constable [T], the children were in close proximity and the father spelt the word. On the third occasion when the father was in Senior Constable [T’s] presence, he used the word without spelling it.”
41.This passage in Reason 309 (a) cannot be supported by the evidence and (b) is not compatible with procedural fairness to the boys’ father:
“It was the last of those statements which [Dr J] said led her to certify that the father should be retained as a mentally disordered person for further assessment by the hospital psychiatric team.”
42.This passage in Reason 311 is not compatible with procedural fairness to the boys’ father:
“In this context, [Ms FF] said that the father used words whereby he reported a suicidal ideation plan which was to drive off a cliff.”
43.This passage in Reason 312 (a) cannot be supported by the evidence and (b) is not compatible with procedural fairness to the boys’ father:
“I find consequently that the father made statements to three different professionals to the effect that he had recently or was at the time he was talking to them, contemplating suicide.”
44.This passage in Reason 313 is not compatible with procedural fairness to the boys’ father:
“Of some considerable concern, is the note in [the psychiatric unit of Town 1 hospital] records made on 23 July 2012 at 10am to the following effect, “[Mr Rimmington] still thinks he didn’t say any word of suicide to the police.””
45.Attribution to the father of the statements in Reason 314, without qualification by reference to their context, is incompatible with procedural fairness being afforded to the father.
The Father’s “Grounds” as Ultimately Expressed
No application was made on behalf of the mother, as it might have been, to strike out some or all of the father’s grounds. That being the case, and because of the extremely serious nature of the issues determined by his Honour and their ultimate consequences for the father, considerable time and attention was given by the Court to having the father reframe and articulate his central challenges to his Honour’s orders. No objection was taken to that course on behalf of the mother.
Over a lengthy and somewhat tortuous process[1], the father ultimately identified 11 separate summary headings which encapsulate what he confirms are the gravamen of his challenges. On the second day of the hearing, the father abandoned the eleventh “ground”.[2]
[1] Transcript of proceedings, 23 August, 2013, pp 56-85.
[2] Transcript of proceedings, 13 February 2014, p 2.
The reframed “grounds” were confirmed by the father[3] as embracing the totality of his grounds and the challenges on this appeal.[4] The summary headings, each of which will be addressed in turn below, are as follows:
[3] Transcript of proceedings, 23 August, 2013, pp 56-85.
[4] Transcript of proceedings, 23 August, 2013, pp 86-87.
(1) Settlement Discussions;
(2) Rejecting or failing to take account of audio or video evidence
a)Attributing or failing to attribute any or sufficient weight to audio or video evidence;
(3) Credit
a)His Honour based findings about credit on demeanour in the courtroom rather than evidence;
b)He did so favourably to the mother and unfavourably to the father;
c)His Honour arrived at assessments as to findings as to the father’s character based on demeanour in the courtroom and not by reference to evidence;
(4)Misapplication of Cases/Misapplication of the Law;
(5) Capacity to Parent
a)No findings or insufficient findings about capacity to parent;
(6) Expert Evidence
a)Failure to give reasons, and in particular reasons for the preference of one piece of expert evidence over another piece of expert evidence;
(7) 20 July 2012
a)The findings made by his Honour in respect of the events of that day and their immediate sequel is not supported by the evidence;
(8) Finality of Litigation (section 60CC(3)(l))
a)His Honour erred as a matter of law in his application of that subsection, or subparagraph);
b)The finding that his Honour made in respect of that was not open to him on the evidence before him;
(9) ICL’s submissions
a)His Honour failed to take any or any proper account of what the Independent Children’s Lawyer said about the prospect of different, later arrangements;
(10) Reasons in Respect of Experts – including ICL solicitor
a)His Honour failed to give any or any adequate reasons for rejecting what the father said about appropriate professional or ethical concerns in respect of the experts.
(11) Directions.Those headings will be used as the father’s grounds and discussed as such under those headings.
Although the process earlier described resulted, out of an abundance of fairness to the father, in the 10 remaining “grounds” just described, it is necessary to understand that, in reality, the father had one essential complaint: that the trial judge accepted the mother’s evidence and arguments in preference to his evidence and arguments. The father said to us:
…I actually said to his Honour at the end of – “It really boils down to do you believe myself or the wife … And if you believe the wife, boom; if you believe me, boom”.[5]
[5] Transcript of proceedings, 23 August, 2013, p 62, lines 37-42.
In reinforcement of that, the father returned, time and again in his argument before this Court, to this central theme or challenge. Ultimately, many if not all of the father’s challenges have as their central core a complaint that findings were made contrary to his evidence and in conformity with the evidence and assertions of others. The father was asked by this Court:
…you seem to … say that his Honour just got that wrong; his Honour in effect was fooled by the … mother … and that a number of errors result from that…
to which the father responded:
I think yes. The answer is largely yes. [6]
[6] Transcript of proceedings, 23 August, 2013, pp 59-60.
The Trial judge’s Reasons
The seriousness of the issues confronting the trial judge and their ramifications for the parties and, most importantly, for the then four-year-old children, are evident from what his Honour said towards the end of very lengthy reasons for judgment:
341.By the end of the hearing I was satisfied that a combination of the mother’s mental fragility and the father’s extreme behaviour has led to the development of the beliefs which the mother holds. Having heard the mother give evidence extensively, I have no difficulty in finding that her conviction that the father is an unacceptable risk to the children, both in terms of physically harming them or killing them and having sexually abused them and that the children need to be protected from physical and psychological harm being occasioned by their father, are genuinely held beliefs.
…
399.The father seemed to accept that the scenario of children having unsupervised access to their father (while living with mother) was untenable. He submitted the overwhelming evidence is consistent with this scenario not being an available option. The father pointed out that the independent expert opined “a major problem with such orders would be the impact on the mother’s mental state. I am confident she would have a major psychiatric breakdown which may well lead to her and the children being harmed. At the very least her capacity to parent would be seriously compromised”.
…
402.In the end I am left with a choice between leaving the children with the person to whom they are primarily attached and with whom they are currently secure and securing that relationship by ordering that they have no time with their father on the one hand and on the other, leaving the children with a parent with whom they do not have any primary attachment and eliminating their primary attachment figure from their lives.
The Trial Judge’s Central Findings
As has already been mentioned, the father, both before us and before the trial judge acknowledged explicitly that his Honour’s ultimate findings depended in large measure on findings as to the veracity and reliability of the parties. That is unsurprising in a case of this type where much of the evidence concerns things said or done between the parties and/or children.
There is no doubt, as the father also acknowledges, that the trial judge formed a generally favourable impression of the mother’s evidence and a generally unfavourable impression of the father’s evidence.
The trial judge found that “overall” he could “rely upon what the mother has reported” (at [41]). That finding was subject to three stated qualifications. One of those qualifications (that the mother was mistaken about the location from which a phone call originated) was the subject of a finding that “[i]n this instance the mother’s memory has proven to be unreliable” (at [38]). The other two matters relate to, respectively, a misunderstanding about the lay and expert use of the expression “histrionic features” (at [39]) and, in relation to inaccuracy about statements made to the mother by the children, a finding that the mother “would have probably understated the extent of the leading questions that she asked the children” (at [40]).
His Honour concluded that “[w]herever there is an inconsistency between a conversation that the father asserts took place and an alternative version of that conversation by another person, I treat with great caution the version of the conversation asserted by the father” (at [55]). Importantly, his Honour concluded that “…where the evidence of the mother and father conflicts, I prefer the evidence of the mother over that of the father” (at [55]).
His Honour referred to the father saying during the course of making submissions that he was “in warrior mode” and his Honour found (at [42]) that the father:
…said things that gave me the impression that he would say anything that he thought might convince the court to order that the children live with him. He has a firm conviction that that will happen sooner or later.
His Honour went on to give (at [43]) specific examples of what his Honour found to be:
…a demonstrated ability [of the father] to take words used in a conversation and turn them around to his own advantage or to actually ascribe words to persons that were not said by that person at all (again to his own advantage). Having done this the father then usually seems to have an unshakeable belief that the conversation has been as he asserted it.
As alluded to in the headings upon which the father relies, the proceedings before his Honour were reopened upon the mother’s application consequent upon events which took place on 20 July 2012 at the Contact Centre where the father had been seeing the children. Extensive documentation was received into evidence on that reopening. A statement of agreed facts about those events recorded by his Honour should be repeated here:
279The parties agreed that the following facts were not controversial:
279.1On 20 July 2012, the maternal grandparents delivered the twins to [Town I] Children’s Contact Centre on time.
279.2At 11am the father took the children away from the Contact Centre against the wishes of a staff member.
279.3Prior to him leaving, the father left at the contact centre a letter addressed to the mother dated 20 July 2012 which is exhibit 38, and annexure B to the father’s affidavit filed 13 August 2012.
279.4The police found the father and the boys in the father’s motor vehicle at about 3pm on 20 July at [Town H] which is located approximately 60kms from [Town I] and is about 45 mins by motor vehicle from [Town I].
279.5The police then obtained a provisional (ex parte) apprehended domestic violence order wherein the twins were listed as protected persons and the father was the defendant.
279.6The father was taken by the police to the psychiatric unit of [Town I] Base Hospital.
279.7On 30 July 2012, the father wrote a letter to the [Town I] Children’s Contact Centre (exhibit 39), which is annexure C to the father’s affidavit filed 13 August 2012.
In addition, his Honour found:
286.It is an agreed fact that there was a significant level of pre-mediation [sic] by the father in taking the boys away from the contact centre. The father referred to becoming aware of a judgment which obtained some widespread publicity (Gaylard & Cain [2012] FMCAfam 501) which the father referred to as a Victorian case (actually a Wollongong case) where children had been excluded from seeing their father until the age of 14. The father says that this was a trigger for him to plan what he eventually put into effect on 20 July.
His Honour’s analysis of the evidence was conducted by reference to a number of relevant headings. So as to emphasise the point that the analysis was comprehensive and focussed upon the issues which needed to be determined in the best interests of these children in very serious circumstances, those headings should be recorded here:
·The father’s mental health and personality;
·The mother’s mental health;
·The mother’s fear that the father has sexually abused the children;
·The mother’s allegations of the father’s abusive and reckless behaviour;
·The events at the holiday home in December 2008;
·The father’s threats of litigation against the mother’s lawyers and expert witnesses;
·The father approaching the mother while she was in the witness box;
·The father’s physical threat to the mother’s lawyer;
·The risk of the mother being involved in altruistic murder/suicide or suicide;
·The reliability of the mother’s statements about not seeing the children if they live with their father;
·Competing views about the mother’s prognosis;
·Whether there is a need for the mother’s time with the children to be supervised;
·The mother wailing;
·The maternal family’s attitude to spending time with the children if an order is made that the children live with their father;
·The involvement of Mr and Mrs Z.
His Honour then, separately, dealt with the issues emanating from the reopening of the case which, in turn, centred on events occurring at and after 20 July 2012. Under that topic, his Honour considered the following issues:
·Premeditation;
·Homicidal ideation [by the father] on 20 July 2012;
·Risks to the children on 20 July 2012;
·Suicidal ideation [by the father];
·The effect on the mother;
·Previous supervised visits;
·The father’s explanation of the events on 20 July 2012;
·Conclusion as to the events on 20 July 2012;
·Future possible involvement of Town I Children’s Contact Centre.
As might be evident from that recitation of the issues dealt with by the trial Judge, his Honour, with considerable attention to detail, traversed the evidence and the issues for the children emanating from it.
Thereafter his Honour made findings by reference to the specific relevant Considerations mandated by s 60CC of the Family Law Act 1975 (Cth) (“the Act”). His Honour observed, correctly, that those Considerations were to be taken into account within the context of the Objects and Principles outlined by the Act (at [328]-[329]).
That series of considerations by his Honour plainly reveals, in our view, an acute appreciation of the issues revealed by the evidence and the even more acute potential ramifications for the children of any orders resulting from the difficult decisions with which his Honour was confronted.
In balancing the various relevant mandatory Considerations and the findings made in respect of them, his Honour referred (at [401]) to arguments advanced by the Independent Children’s Lawyer that orders should be made “…which would allow the children to continue to have a relationship with their father but to curtail the circumstances in which that took place, at least in the short term.”
His Honour (at [401]) rejected that argument and gave reasons for doing so:
…I conclude however that the stronger argument is that it is in the children’s best interests:
401.1For them to continue to live with the parent to whom they are primarily attached and who is central to their lives.
401.2To eliminate from the life of the children’s primary carer the effect that continuing involvement by the father in the children’s lives will have upon her. Dr [S] concluded that in the event I made orders similar to that part of the orders suggested by the Independent Children’s Lawyer which are to commence in 18 months time, the mother’s mental health could be severely compromised.
401.3To eliminate the spectre of ongoing litigation.
Ultimately, his Honour considered himself left with a very difficult and poignant choice which his Honour described at [402] of the reasons quoted above. Ultimately, his Honour concluded that it was in the children’s best interests for him to make orders in accordance with those proposed by the mother, the net effect of which was that the children would not see their father.
The Appeal Record
Reference has already been made to the 55-page Notice of Appeal initially filed by the husband, the subsequently amended grounds of appeal and the difficulties in seeking to reframe the essence of the father’s challenges. It is important to additionally record difficulties created for this Court and, ironically, in some circumstances for the father, by the nature of the appeal record prepared by him.
It is accepted that a 12-day trial with multiple serious issues and orders ultimately denying the father time with his children created for the father very significant difficulties in preparing the appeal record and for the appeal itself. His task was not, however, assisted by his refusal to comply with suggestions, and even directions, made by the Appeals Registrar.
There were 21 volumes of appeal books. The father refused to number and mark the appeal books in the manner required by the Family Law Rules 2004 (Cth) or as directed by the Appeals Registrar. Most importantly of all, the father refused or failed to provide the whole of the transcript of the proceedings before the trial judge. The difficulties created for this Court in not having the transcript where the appeal “grounds” are in the form earlier indicated and where the father’s argument is, to say the least, discursive, are self-evident. In a case where the trial judge has made findings of the type contained at [43] quoted above, the difficulties become more pronounced.
Disturbingly, some parts of the transcript said by the father to be supportive of points made by him were included in the record, while other parts of the transcript proximate to those passages were not. The following exchange occurred before us:
AINSLIE-WALLACE J: Does that mean that the court adjourned or you didn't get the transcript for that time?
MR [RIMMINGTON]: I couldn't tell you. I actually clipped this so finely when I got it that I missed out on bits I wanted.
…
AINSLIE-WALLACE J: …it seems to me on page 96, after Ms [K] says at line 26, "No, thank you," then there's 10 minutes not included, and … [counsel for the mother] … is talking, and he's half a sentence through. So did you – you just extracted bits of the transcript that you thought would be helpful?
MR [RIMMINGTON]: That's exactly right. I couldn't – that's why there was a huge delay.
…
AINSLIE-WALLACE J: In the middle of cross-examination?
MR [RIMMINGTON]: I had to – I couldn't afford to buy the transcript.
MURPHY J:Yes. Thank you. The record should also reflect that [in] referring to passages of Dr [W's] evidence in [a] previous context, that precisely the same consideration to which Justice Ainslie-Wallace has referred is directly applicable to the evidence of Dr [W] … at about the time when Dr [W] was giving evidence in relation to the issue you previously raised. Yes. Thank you.
MR [RIMMINGTON]: Well, I take your word for that, I'm sure, yes. In hindsight it would have been easier to get the whole thing probably, because I've ended up paying so much money for the piecemeal.
(Transcript of proceedings, 23 August 2013, p 209).
Another example relates to an incident where this Court said to the father in argument that an assertion made by him did not appear to be borne out by the evidence and where, as a result, the father was asked to take the Court to the evidence:
MURPHY J:Well, with respect, that's not true.
AINSLIE-WALLACE J: And would you take us to the evidence.
MURPHY J:…what evidence, please, is there from the mother about the injury?
MR [RIMMINGTON]: Oral evidence.
MURPHY J:Yes, well, take us to it.
MR [RIMMINGTON]: Which I don't have the transcript. The words were all continually bandied around: “scalded, burnt,” whatever.
AINSLIE-WALLACE J: You didn't get – this is a point you're raising with us on appeal.
MR [RIMMINGTON]: Yes.
AINSLIE-WALLACE J: And a point in respect of which you're going to make a submission that his Honour's finding was directly contrary to the evidence, and you did not extract the oral evidence of the mother on this point; is that what you're saying?
MR [RIMMINGTON]: There is no need to. His Honour has said, “[B] being scalded that day.” That’s – I say – you might say to me that he hasn't found as a matter of fact there that [B’s] hand was scalded. I don't understand how in plain English – you don’t need to be a lawyer – that sentence is not compatible with his Honour Watts J having made a finding that the child’s hand was scalded.
(Transcript of proceedings, 23 August 2013, pp 215-216).
Application to Adduce Further Evidence
The father sought to introduce at the hearing of the appeal a plethora of material by way of further evidence.
Further evidence in an appeal may be received in the discretion of this Court but the circumstances in which that occurs are significantly constrained.
Given that the father represents himself on this appeal, it is appropriate to quote the well-known passages from the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
113.In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial … Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
115.Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
(Emphasis in original).
If the evidence has little probative force, that, too, will be an important discretionary consideration. We consider it to be a particularly important consideration in this case.
Again, the submissions made by the father in support of the application to adduce further evidence are, with all respect to him, very difficult to follow.
In broad compass, the application and all of the documents the subject of it, can be seen to be another example of the father’s central contention which, in effect, is that the trial judge was wrong in preferring the evidence of the mother over that of the father. Again, the application relates, overwhelmingly, to material said to show that to be the case, by reference to what is, in effect, a line-by-line analysis of each and all of the things said by the trial judge either during the course of the hearing or in his Honour’s reasons.
When the lack of relevance of the evidence sought to be adduced before us by the father was pointed out to him, he abandoned some parts of his application. Examples are two affidavits filed by the mother but which were not relied upon by her before his Honour and a transcript of evidence of a witness, Ms MM who was from the Contact Centre at which the events of 20 July 2012 took place.
Perhaps the best example of the irrelevance of the material sought to be adduced by the father is a Statement of Claim filed by him in the Supreme Court of New South Wales in which he seeks damages (pursuant to causes of actions which are not entirely clear) against his former solicitors, the Independent Children’s Lawyer, and a single expert psychiatrist who gave evidence in the trial, which such Statement of Claim was filed subsequent to the proceedings before his Honour.
None of the documents referred to by the father are persuasive that the orders appealed are erroneous. Further, none of the evidence is relevant to the central issues by which the best interests of these children were, or might be, determined.
The application to adduce further evidence will be dismissed.
The Father’s “Grounds” and Arguments
Conclusions as to the Father’s “Grounds” and Arguments
Given the father’s central challenges to his Honour’s orders and the underlying “theme” embracing most if not all of them earlier referred to, we think it important before we embark upon a more detailed analysis of his “grounds” and arguments, and our reasons for rejecting them, that we record by way of summary:
·We consider that each and all of the findings made by his Honour were well open to him;
·Conversely, we are not persuaded that his Honour made any error of fact material to the issues before him;
·The findings made by his Honour as to the credit, veracity and reliability of evidence, in particular the evidence of the parties, were each and all well open to him;
·No argument advanced by the father, nor anything to which he took this Court, nor our own reading of the record, reveals any error of law or misapplication of principle by his Honour;
·His Honour’s reasons more than adequately explain the path by which his Honour arrived at the orders which he made;
·We can see no foundation for the assertion that the father was not accorded procedural fairness either as asserted by the father or at all;
·The events of 20 July 2012 to which further reference will be made were properly the subject of a reopening of the evidence by his Honour. Evidence in respect of those events was properly considered as crucial to ultimate findings as to the children’s best interests.
Against the background of those central conclusions, we turn to consider each of the “grounds” relied upon by the father.
The First Ground – “Settlement Discussions”
This unusual heading relates, too, to the central assertion by the father that the mother’s evidence ought not to have been believed and that his should have been.
The gravamen of the argument is this: because the mother put forward a proposal that would see the father spending unsupervised time with the children, her assertion in the witness box that she was frightened of the father and frightened of what the father might do to the children if he had unsupervised time or, indeed, any time, was false and indicated that she had “committed perjury”. As a result, the argument runs, his Honour erred in finding both that the mother was genuinely afraid of the father, and that her beliefs as to how he might harm the children were genuine.
Tied to that argument is an argument that the father was denied procedural fairness because his Honour excluded from consideration settlement discussions and, particularly given that the father was representing himself, procedural fairness dictated that the trial judge ought to have made himself aware of those discussions, whereas in fact his Honour refused to permit evidence of them.
Significant confusion attended the father’s submissions in respect of this issue. Ultimately, two things emerged. First, the settlement discussions at the heart of the contention are those which are said to have taken place on the first morning of the trial before his Honour (as distinct, for example, from those contained in earlier correspondence).[7] Secondly, the issue was not raised by the father at any time during the 12 days of trial until he mentioned the issue in final submissions.[8]
[7] Transcript of proceedings 23 August 2013 p 8; pp 13-15 and 35.
[8] Transcript of proceedings 23 August 2013 p 91.
Settlement discussions which, it appears accepted, occurred on the first day of the trial are, in the usual course, privileged (Evidence Act 1995 (Cth), s 131). Section 131(2)(g) provides, in effect, that evidence of settlement discussions can nevertheless be adduced where either evidence in the proceedings, or an inference from that evidence, contradicts or qualifies evidence given in the hearing.
The essence of that subparagraph is to prevent an abuse of the processes of the court by the court being misled (see, for example, Verge v Devere Holdings Pty Ltd (2009) 258 ALR 464 at [41]-[42]). There is a broader view of the provisions of the subparagraph; it has been held to apply, for example, to a situation where, if evidence of negotiations was not admitted, it would “…enable a [party] to assert a case inconsistent with that evidence” (Simply Irresistible Pty Ltd v Couper [2010] VSC 505 at [20], per Kryou J).
However, in our view, on either a “narrow” view of the subparagraph or a “wider” view, it has no application to the present case.
First, and most tellingly, the settlement discussions occurred before the serious events which occurred on 20 July 2012, when the father unilaterally and unlawfully (and as his Honour found, with premeditation) removed the children from a Contact Centre. Secondly, the submission ignores the fact that both before and after that event, the court had evidence from the mother (both in affidavit and orally under cross-examination) both as to whether she would permit the father to have time with the children and her reasons why she considered and rejected time. Indeed, his Honour quotes a passage from the mother’s affidavit (sworn after the events of 20 July 2012) at [315] of the reasons.
To the extent that the father’s submissions are more narrowly confined – that is, that the absence of the evidence misled the court not in respect of the mother’s attitude to time, but, rather, in respect of the mother’s beliefs as to the husband – they, too, ignore both the dramatic and serious events of 20 July 2012 and also the fact that the mother’s belief that the father would harm the children and its genuineness or not was the subject of extensive analysis by reference to a number of different aspects of the evidence (including, importantly, the mother’s mental state generally). His Honour’s reasons reflect that extensive analysis.
At [198] of the reasons, his Honour said:
198.As I will discuss later, I accept that the mother has a genuinely held fear that the children may come to harm at the hands of their father and that at least on 20 July 2012 for a period of about four hours there was an unacceptable risk of the children being alone in their father’s care.
This ultimate finding is based on a number of different parts of the evidence accepted by his Honour. They include:
·Observations by his Honour of intimidatory behaviour on the part of the husband in the courtroom (for example at [251]);
·Acceptance of the single expert psychiatrist’s opinions (for example at [252]);
·Findings as to the mother’s mental health generally (for example [189]);
·The fact that the father’s behaviour had extended to “expressed or implied threats” to sue professionals involved in the case (at [248]) and had made a physical threat to the mother’s solicitors (at [253]-[254]);
·The opinion of the independent expert psychiatrist that the mother was susceptible to intimidation (for example at [186]);
·The acceptance of the depths of the mother’s current attitude: “if the children are placed with their father, she will ‘not be here very long.’” She indicated she “has never felt as desperate as she does now” but that she is afraid to kill herself (at [184]).
Crucially, his Honour plainly indicated in the reasons that his ultimate conclusion as to the mother’s fear is not only based on a number of parts of the evidence but is, in turn, but a part of the ultimate finding about the mother’s beliefs:
341.By the end of the hearing I was satisfied that a combination of the mother’s mental fragility and the father’s extreme behaviour has led to the development of the beliefs which the mother holds. Having heard the mother give evidence extensively, I have no difficulty in finding that her conviction that the father is an unacceptable risk to the children, both in terms of physically harming them or killing them and having sexually abused them and that the children need to be protected from physical and psychological harm being occasioned by their father, are genuinely held beliefs.
As we have earlier indicated, we consider that the ultimate finding at [341] (and his Honour’s earlier findings to which we have made reference) were entirely open to his Honour and nothing said by the father persuades us of any error in respect of same.
Finally, reference should be made to the apparently separate argument that the father was not given the opportunity to adduce evidence of settlement discussions (or, perhaps more accurately, that he was misled into thinking that he could not).
The assertion appears to be, the father having accepted that he did not raise the issue at all during the 12-day trial until submissions, that the issue ought to have been raised by counsel for the Independent Children’s Lawyer or the mother’s counsel.
That submission was not that evidence of the discussions ought to have been admitted or that there had been any procedural unfairness; rather it appears to centre on an allegation of unprofessional conduct by the Independent Children’s Lawyer. The submission to his Honour was:
Submission AT: The father genuinely believes the Independent Children’s Lawyer’s submission in writing, by way of a ‘double negative’, risks implying to the presiding judge that the Independent Children’s Lawyer formed a view that the mother is genuine in her allegation that the father shall murder the children, and that such an implication is misfeasance. This submission to the court by the Independent Children’s Lawyer was made, notwithstanding ‘brokering’ on morning of the first day of trial, settlement terms agreeable to the mother, which from any objective perspective, are incompatible with any genuine belief by the mother that the father shall murder her children. The father rejected the settlement, citing its terms as being evidence of the mother’s fraud on the court.
In order to fully understand this submission, it is useful to have regard to the following exchange :
MURPHY J:So let me be clear about this … what this court knows as a fact is that whatever might have occurred, relevantly, on the first day of the trial in relation to settlement discussions, whatever you might have been told or not told by the ICL or anyone else, at no time during the trial, including during the submissions when you raised it, did you say to his Honour, “There are important matters I need to raise in relation to the settlement discussions in respect of the wife’s position or the mother’s position, but I’m told by the ICL I can’t raise it”. You never did that, did you?
(Transcript, 23 August 2013, p 91, lines 20-28)
Several short exchanges resulted in the father’s response:
MR [RIMMINGTON]: All I did was put it in writing what I put in writing.
MURPHY J:Yes, and when you put it in writing – this is the point I keep coming back to because it’s important – when you put it in writing what you put in writing was a reference to settlement discussions. You did not put in writing anything which suggested to his Honour, did you, that you ought have been able to raise with witnesses – put questions to – all that you were told by the ICL you couldn’t.
MR [RIMMINGTON]: No, my only submission to this court is this: is that when a judge is making a decision based on another a mother saying she’s not going to facilitate little boys’ relationships with their father and the court has it in writing a submission that the mother is willing to do exactly the opposite, it raises a question as to what point is there an onus on this court in the interests of the child to say that is such a huge, important point, this man is unrepresented, I want to get the ICL and the mother’s solicitors back in here right now and hear why this is happening.
AINSLIE-WALLACE J: What would have triggered his Honour to make that inquiry?
MR [RIMMINGTON]: The submission in writing.
(Transcript, 23 August 2013, p 91, line 38-p 92, line 10)
This somewhat circuitous exchange draws us back to “Submission AT” referred to above and “Submission AU” in which the father said “from 12 March 2012 the children’s lawyer informed the father if he was agreeable to the boys living with [Ms Healey], that [Ms Healey] was agreeable to [Mr Rimmington] transitioning to unsupervised access”. In answer to another question from the bench to the effect that it did not appear that the father had said to the trial judge that he was precluded from doing things he wanted to do, the father responded:
…No, my submission is … that this court having read that, which is so fundamental to the future of the children when he’s about to ban them ever seeing their father, should be so alarmed by that he should have called the parties in if he needed and received more evidence. That’s my submission. I may be wrong.
(Transcript of proceedings, 23 August 2013, p 93, lines 13-16).
However it has been expressed, we see no merit in this “ground”.
The Second “Ground” – The Audio and Video Material
Under the subheading “the audio material and video material tendered by the Father or Annexed to his Affidavit” his Honour said at [171]:
I do not place significant weight on the audio or video material presented by the father. The father did not record any of the particular events that are in dispute (for example, the events that took place in the holiday home in December 2008, which I have detailed below). The audio tape the father made of the incident on 20 July 2012 was not tendered by him but I have more than adequate evidence about what happened on that day.
Again, it needs to be emphasised that the complaint here is part of the central challenge that everything the mother (and, relevantly here, her father) says is false. In the father’s own words before this Court:
Yes.My case is that everything said in every paragraph is false. That’s my case. That means anything the mother has put in her affidavits which is adverse to me is in dispute. I was in the witness box for three days, and I wasn’t asked a question about anything before – like the mother had left the marriage six or eight months or so – I’m saying my case was I character assassinated, and I’m saying the evidence – this is an example of the only opportunity post separation where either of the mother’s parents could corroborate the mother’s allegation that I was some sort of bully or nasty person. I have to take you to their affidavits, show it to you, then you compare what happened, and you realise the degree of perjury.
(Transcript of Proceedings, 23 August 2013, p 98, line 44-p 99, line 5).
After much discussion with the father, it transpired that the true challenge under this “ground” is, as the father effectively confirmed,[9] that his Honour had given insufficient weight to what was revealed on audio tapes admitted into evidence. That concession was made by the father because, contrary to the first component of the father’s challenge, his Honour was, as the reasons plainly reveal, quite specific about having had regard to that evidence.
[9] Transcript of Proceedings, 23 August 2013, pp 100-101.
His Honour was equally specific about attaching little weight to that evidence. At [171] of the reasons, his Honour refers to aspects of the evidence omitted from the tapes considered significant by his Honour (with respect, rightly so). That is plainly revealed as a reason for not giving weight to other matters recorded by the father. They were of their nature self-serving. That factor was exacerbated by the fact that other important events where significant behaviour was alleged against the father were not the subject of recordings by him (or anyone else). Each informed the weight attached to the tendered evidence and correctly so.
Further, it should be pointed out that an incident to which the father made specific reference before us under this “ground”, occurred in May 2008, that is to say some four years prior to the trial and, crucially, some four years prior to the serious and troubling events that occasioned the reopening of the trial to which his Honour attached (again, with respect, properly as it seems to us) very considerable significance.
It should also be observed that his Honour found:
165.During the hearing, the father tendered microcassette tapes (exhibit 12) of conversations he had had with the mother and maternal family that he had secretly recorded. These audio files were also included as Item 15 on the father’s annexure “E5” to his affidavit filed 13 February 2012.
166.During final submissions, the father asked me to listen to audio on those tapes (approximately 12 hours worth), or alternatively read the transcription the father made that was included in the Independent Children's Lawyer’s tender bundle (exhibit 1). He said it was only necessary to listen to, or read, this material if considering the Independent Children's Lawyer’s proposal or the mother’s proposal. The material is undated, and out of chronological order. The tapes are listed as H to Z.
167.I noted that the father did not cross examine any witnesses on the conversations on the tapes. The father submitted that these tapes and video go to the genuineness of the mother’s contention that she would sever all contact with the children, should they live with the father. He also said it was an example of how the parties are able to communicate. I am unable to fully understand that submission, given that some of the audio material is only the father’s side of the conversation.
The findings made by his Honour included findings that the transcript of a particular tape was “incomplete” and that transcripts of tapes made by the father (or, as alleged by him, his lawyers) were inaccurate and in one case included the father’s own commentary at the beginning of it (at [168]-[169]).
There is no merit in this “ground”.
The Third “Ground” – Credit, Including Findings Based on Demeanour
Much of the first day of the hearing of the appeal was occupied by the father’s arguments in respect of this “ground”. We will deal with it at some length.
His Honour encapsulated in his reasons the argument which the father seeks to put before us in this appeal:
147.The father’s basic plea is that I should place significant weight not on how he behaved in the course of the proceedings, but rather, on how other people (his companions during the time with the children; the child contact centre notes) described his behaviour when he was with the children.
It is important to quote what his Honour thereafter records:
150.The father’s behaviours in the courtroom fall into two broad categories. The first category relates to behaviours that were actually incidents in themselves and may have happened whether or not the father was a self represented litigant. Examples of those behaviours was the threat that the father made to the mother’s lawyer; the father approaching the mother in the witness box in an inappropriate manner and the father placing his feet on the railing of the witness box whilst leaning back in his chair in the witness box whilst giving evidence.
151.There is a more general category of behaviours that which [sic] were observed by me in the course of the father conducting his own case. It is true, I may not have seen these behaviours to the same extent had the father not been a self represented litigant. The behaviours, however, were either sufficiently disturbing or compellingly repetitive, so as not to simply be able to be excused as a function of the stress that any intelligent self represented litigant might feel in a court room.
152.I find that the father’s behaviour in the court room on regular occasions was unrestrained and uncontrollable. The father’s behaviour was less extreme in the final three days of the hearing. For the majority of the hearing, the paternal grandfather was present at the back of the court room. There was, on occasions, interactions between them and the paternal grandfather demonstrably provided a moderating influence on some of the father’s behaviours.
153.The father on occasions adopted what was an objectively aggressive pose (for example rising to his feet and placing both his hands on his hips whilst addressing the bench; rolling up both sleeves on a long sleeved shirt at the beginning of his cross examination of the mother). The father had little ability to accept a direction (particularly regularly in relation to talking over somebody who was speaking; interrupting an answer that was being given in response to a question he had asked in cross examination; understanding and complying with a direction to remain silent until invited to speak again; even something as simple as responding to a request to take his hands out of his pockets when addressing the court.) Although not a big thing, after I requested him during the hearing more than once not to do so, the father delivered the majority of his final submissions on 17 April 2012 with his hands in his pockets.
154.The father also had an annoying repetitive habit of apologising for some inappropriate behaviour or blatant failure to comply with direction and then engaging in that behaviour shortly (and sometimes immediately) thereafter. On occasions the father simply displayed selective deafness in ignoring a direction I had made, simply continuing with the behaviour as if he had not heard my request for him to desist in that behaviour.
His Honour then records observations which, it is necessary to say, are entirely consistent with observations made by this Court during the course of the father’s one and a half days of hearing before this Court:
155.The father, on more than one occasion, reacted negatively to something that I was attempting to say when I was halfway through saying it. On a number of occasions, the father had jumped to a conclusion as to what the statement, when completed, would mean…
His Honour went on to say, specific to events which occurred before him:
155.…An example of that was a discussion I had with the paternal grandfather whilst he was giving his evidence as to whether or not a letter, written by the mother’s lawyers, had left “an open door” to discuss the possibility of further negotiations in respect of the paternal grandparents themselves spending time with the children. When I was halfway through that sentence, the father said “Sorry your Honour, I have to leave the room at that comment. There’s been an open door?!”, and left the bar table without being invited to do so, and left the court room, returning to the court room after a short period of time. When he returned he slammed the door shut and said “There’s been an open door? That’s an open door!”
His Honour then concluded:
161.The behaviours that the father demonstrated, particularly over the first nine days of the final phase of the hearing, were so unrestrained and unusual that I find that:
161.1They do corroborate opinions expressed about the father by Dr [W]; and
161.2Lend great weight to the descriptions by the mother of past behaviours that she has experienced when with the father that provide a substantial subtext in which the genuineness of her current fears can be assessed.
162.One is only left to wonder what type of behaviour the father would demonstrate in the future towards the mother outside the confines of the situation in the court room when it might be expected that in the court room the father might be attempting to present the best side of himself at all times.
The finding made by his Honour at [162] is pertinent to a number of the arguments raised by the father before this Court. A trial judge might properly feel significantly more confident about using demeanour in assessing credit when it is but one of the means by which that assessment is made and that demeanour tends to support other evidence before the court (as was the case here (at [161])) (see, Devries v Australia National Railways Commission (1993) 177 CLR 472). Moreover, greater comfort can attend the use of demeanour when the behaviour is of the extraordinary type exemplified by his Honour in the reasons.
The complaint made by the father needs to be seen against six quite specific findings made by his Honour when dealing with the issue of the father’s credit. Much of the father’s argument directed to us centred on matters that the mother was alleged to have said or not said during the course of the marriage and immediately after separation, many years prior to the trial. Not one of those matters was relevant to, or connected with, any of the specific pieces of evidence which his Honour used to establish an adverse credit finding as against the father. His Honour:
· Found that the father took words and turned them to his own advantage;
· Found that the father reconstructed a conversation with a doctor;
· Cited examples of the father having embellished his evidence, in particular, for example, in respect of the witness, Ms F;
· Found that an explanation of what the father admitted he had said was a spurious explanation and could not be accepted;
· Made a specific finding that that evidence had been embellished;
· Pointed out significant inconsistency between what the father had told a police officer and the evidence he had given in court.
A particular focus of the father’s oral arguments before this Court was the evidence of the mother that she was genuinely fearful of the father and genuine in her belief that he would harm the children. In light of its importance, it is necessary to quote what his Honour said in the reasons in respect of this issue:
288.I am satisfied that at no time on 20 July 2012 did the father actually articulate that he had any thought that he would kill the children.
289.An entry on 20 July 2012 at 23:00 (at tab 7 of exhibit 37) has been made by Nurse [SS]. She was not required for cross examination. The text of the note is:
“[the father] states he would Drive off a Cliff with the Children”
290.Mr [O] on behalf of the Independent Children's Lawyer spoke to [Nurse SS] on 10 September 2012. [Nurse SS] said that her note on 20 July 2012 was compiled using other documents and not from a conversation with the father. I infer that the primary document that the nurse relied upon was the Form 1: Medical Report as to the Mental State of a Detained Person, written by Dr [J]. On that document, Dr [J] wrote, inter alia, the father was “threatening suicide/homicide (his 2 children)” (tab 2, exhibit 37).
291.Dr [J’s] evidence in exhibit 49 and orally made it clear that although the father said to her words that indicated the father would contemplate killing himself, her note in relation to homicide of the children was a report that she did not obtain directly from the father but rather from a statement from the police (or possibly the triage nurse).
292.In the statement made by Senior Constable [T] (green tab exhibit 37), Senior Constable [T] records:
“[the father] left a letter at the centre outlining ‘experts’, mentioning him ‘murdering the children’.”
Contrary to the father’s arguments before us, the reasons suggest that his Honour adopted a balanced and analytical approach to the evidence before reaching the conclusions which he did. For example, his Honour went on to say:
293.The lawyer for the mother conceded that that was a misunderstanding of the context in which the father had used the word ‘murder’ on two occasions in the letter that he had left for the mother at the child contact centre when he took the children. That letter is exhibit 38 and paragraph 5 reads:
“The Expert informed the Court of his belief that you fear I shall murder the boys on the first occasion on which I am in their company in an unsupervised setting. I doubt that the Expert is correct, but if he is, then please let me know by personal email no later than Monday evening if you are prepared to retract your allegations, that it is “only a matter of time” before I shall murder the boys, if they appear happy on the Skype session, which I suggest takes place at the regular time next Wednesday.”
294.That however is not the end of my consideration in respect of the father’s thoughts that he might harm the children. In the father’s affidavit in reply to the notes from the [Psychiatric Inpatient Unit] (exhibit 37) and in particular the entry at tab 7 by Nurse [SS] “[the father] states he would drive off a cliff with the children”, the father says the following:
“70.In the above context whilst I do not recall doing so, it is quite possible that I might have mentioned ‘driving off a cliff with the children’ not because any such risk has ever or [sic] would ever exist, but in the course of expressing my utter most cynicism, at the fraud I believe is being intentionally effected on the court, by the unashamed perjuries of each of [Mr Healey], [Mrs CC Healey], [Ms Healey] and [Ms OO Healey].”
295.What is disturbing about that evidence is the father’s concession that he could have in fact at some point said that he would drive off a cliff with the children, even though the father protests that the statement was a cynical one.
(Words enclosed in square brackets in original).
His Honour then attributed significant weight to the events on an after 20 July 2012 to which reference has earlier been made. We have already said that we regard these events as very serious and troubling. With respect, we consider that his Honour was perfectly correct in attributing very significant weight to those events and the issues exemplified by them.
His Honour found:
296.The second concern is that although I have no evidence (apart from the father’s own admission) that he directly made any comment about killing the children, for reasons that I set out below, I find the father had an acute event on 20 July 2012 during which he indicated to at least three professionals that he had thought of killing himself in the future. That acute event took place during a period of time when he had the children alone for a period of four hours. During this time, the father’s state of mind and behaviour was such that the children were at risk during that period of time. The period was ended only when a state wide alert by the police successfully found the father’s motor vehicle and apprehended the father with the children in the motor vehicle.
297.The contact centre note for 20 July 2012 describes in part the father’s behaviour when he was taking the children from the contact centre in the following terms:
“The shift supervisor [Ms MM] said to the father, ‘[Mr Rimmington] what are you doing? You are not helping yourself’. [Mr Rimmington] said, ‘There is no reason why I cannot take the boys’. Ms [MM] then said, “Yes there is [Mr Rimmington], it is in the Family Law Court order that you are only to see the boys at the contact centre. In the court order it states that you are not to leave the contact centre premises with the boys, even with a supervisor’. The father then said, ‘I have to do something, I’m never going to see them again’. Ms [MM] said to the father, ‘I can’t let you leave with the boys [Mr Rimmington]’.”
298.Ms [MM] then attempted to take one of the children [B] in her arms but the father moved him away from her and placed him in the rear seat of the car. Another contact centre worker, Ms [DN], opened the front passenger door and [A], who the father put in that part of the car, started to get out of the car. The father quickly tried to close the door but [A’s] legs were in the way. The father agreed in evidence that [A’s] leg got hit by the door as the father was attempting to shut the door to lock [A] in the car. [A] began to cry and was obviously hurt by the impact of the door on his leg. At that point [B] also began to cry in the back of the car. [Ms MM] then said to the father, “The boys are getting upset [Mr Rimmington], this is not helping the situation”. The father said, “That is because you are making a scene”. [Ms BB], the team leader, then joined Ms [DN] and Ms [MM] and attempted to talk the father around.
299.The following is then recorded in the notes:
“[Mr Rimmington] began to use sharp, jerky movements and his voice became shaky. [Mr Rimmington] went to the driver’s side door and got into the car. [Mr Rimmington] placed his keys in the ignition of the car. [A] and [B] did not have their seat belts on. Ms [DN] said, ‘If you are leaving please put the boys’ seat belts on [Mr Rimmington]’.”
Again, his Honour, favourably to the father, considered and weighed the father’s evidence carefully:
301.In oral evidence the father said that he was highly anxious when he was driving away and did not even dare look in the rear vision mirror for fear that the police might be behind him. It was in this state of high anxiety that the father had the boys for the next four hours, including according to the father’s oral evidence, for a period of time beside a dam.
302.Senior Constable [T] described the father’s demeanour during his initial contact with him as “he appeared somewhat erratic and agitated” (paragraph 8 of exhibit 47). In paragraph 9 of the same exhibit, the Senior Constable records:
“(the father) was clearly emotional and agitated, and numerous times he went from talking calmly to raising his voice and threatening legal action against the Police before returning to talking calmly and stating his understanding that Police were only doing their jobs.”
303.The submissions of the Independent Children's Lawyer would indicate that she would see what the father did on 20 July as “a stupid act” rather than a “material risk”. I find that that is rather a superficial analysis of what happened on this day. In fact, anything could have happened. The father was not totally in control of his own actions and to have the boys with him for four hours in his frame of mind I find did put the children at material risk in that period.
The point needs to be made again that no one piece of evidence, including, specifically, the demeanour of the father in the courtroom, was determinative of the findings as to credit that his Honour made generally or, more specifically, the findings that his Honour made in respect of risk posed by the father to which the father had directed particular attention before us. Again, in light of the importance of the issues, his Honour’s reasons should be quoted:
337.I accept Dr [S’s] conclusion that the children are not at risk of an altruistic murder/suicide by their mother.
338.I find that there is no unacceptable risk that the father has sexually abused the children.
339.Towards the end of the hearing, particularly on the ninth day, the father’s behaviours were such that I had some cause to wonder as to whether or not there was some risk that the father could do something dramatic, particularly if an order was made to the effect that he no longer have any contact with the children. The father asked Dr [W] if in his professional opinion the father was “insane”. Dr [W] took some time to respond but eventually said “I don’t think you’re 100 per cent well.” At the time I was mindful that the father said he had had little sleep the night before.
340.What causes me considerable concern now is the premeditated actions of the father which he planned and carried out on 20 July 2012 and his state of mind when he did so. As I have found, the children were at some risk when they were with their father during those four hours on 20 July. The fact that they were at risk feeds into the mother’s unshakeable belief that the father is a physical risk to the children more generally.
341.By the end of the hearing I was satisfied that a combination of the mother’s mental fragility and the father’s extreme behaviour has led to the development of the beliefs which the mother holds. Having heard the mother give evidence extensively, I have no difficulty in finding that her conviction that the father is an unacceptable risk to the children, both in terms of physically harming them or killing them and having sexually abused them and that the children need to be protected from physical and psychological harm being occasioned by their father, are genuinely held beliefs.
Significant to that misunderstanding, it is important to understand that the mother’s evidence in respect of abandonment was entirely confined to the situation where the court ordered that the children live with the father. That is, the mother said, for reasons she identified in evidence and which his Honour referred to in the reasons, that if the children lived with the father, then, as she saw it, prevention of emotional harm to them would necessitate her not seeing them. His Honour, quoted the Independent Children’s Lawyer’s cross-examination of the mother in that respect at [260] of the reasons.
That order did not eventuate. That being the case, the father’s challenge falls away, unless, as the father contends, the court “…bas[ed] its conclusion on the best interests of the boys, on their mother’s proposal to abandon them…” That contention cannot be sustained; again, his Honour’s comprehensive and detailed reasons set out a multiplicity of findings that ultimately inform his Honour’s conclusions about best interests and, resultantly, the orders made.
The mother never suggested that she would abandon the children in circumstances where, as his Honour ordered, the children live with her. In that circumstance, a different set off issues presented, as his Honour plainly set out in the reasons. In that eventuality the central issue (among others) was whether, the children’s best interests were best met by orders for time or, in this case, for no time.
A contention, which we perceive to be separate, but related to, the issue just discussed, is a challenge to the orders based upon the father asserting that as a result of the mother’s proposal to abandon the children, his Honour ought to have made findings adverse to the mother as to her capacity to parent.
His Honour found, by reference to the relevant specific statutory consideration (s 60CC(3)(f)):
374.The mother has demonstrated a capacity to provide for the needs of the children both physically, emotionally and intellectually. I have discussed the difficulties with the mother’s mental status above. Dr [S] was confident that the mother would seek treatment should she experience any further difficulties with her mental health.
375.As indicated, the children’s primary attachment is with their mother who is central to their lives. Although the father could provide for the children’s needs, they do not currently have any dependency upon him.
The father’s central contention before this Court is that:
The Court gave consideration to Section 60CC(3)(f) of the Act at page 59 of the judgment. However The court erred, in failing to demonstrate in its judgment, how a parent’s extreme and irrational proposal to permanently abandon her or his four year old children is compatible with the requirements of Section 60CC(3)(f), in regard to the parents’ long term capacity to “provide for the needs of the children, including emotional and intellectual needs”.
Again, the father sets up as a premise to his argument, an acceptance of his evidence about the mother’s motivations, alleged untruthfulness and lack of genuineness in what she said about the father and her fears. His Honour made findings adverse to the father in each and all of those respects. A difficulty with the father’s submission is that he contended before his Honour that the mother was not genuine in saying what she said about “abandoning” the children – that is, he asserted she was lying about that and that the judge was fooled by those lies. His Honour found to the contrary (at [264]).
Importantly, his Honour was plainly very concerned about the issue addressed by the father. His Honour’s reasons, read as a whole, reveal a profound concern about what might broadly be called the “capacity to parent” of each of the parties. That issue lies at the heart of a detailed consideration by his Honour of the mental health of each of the parties and the specific issues earlier referred to in these reasons where those mental health issues can be seen to be manifested. His Honour gave careful consideration to aspects of the mother’s personality and mental health issues in relation, specifically, to the issue of “capacity to parent” ([359]-[360] are a good example).
There is no merit in this “ground”.
The Sixth “Ground” – Competing Expert Evidence
The premise upon which this challenge is based as expressed in the father’s further written submission is that the court:
…did not appear to enunciate the basis for … preferring the views of the mother’s personal psychiatrist Dr [S], over and above the competing views of the Independent Expert appointed by the Court, in findings at Reason 266 to 269. The Court erred in failing to consider a number relevant factors, in its conclusion on competing views.
In those paragraphs of the reasons referred to by the father, his Honour found:
266.Dr [S] was of the view that “provided the family court proceedings can be appropriately resolved and that the children’s safety [is] ensured, [the mother’s] prognosis for the future is good.”
267.Dr [W] did not see the mother’s future prognosis in such “clear cut terms.” He said that Dr [S’s] reports presented the mother as being “stressed out, depressed and anxious”. However, Dr [W] opined Dr [S’s] report didn’t include “a consideration of whether there’s significant personality factors there”. Dr [W] opined that, given that the mother’s history of mental health issues; “anorexia nervosa at 16, depression at late 20s – a sort of a manicky sort of episode – two hospitalisations in the early 2000s and then the recent events”, he would not conclude, as Dr [S] does, that the mother had a good prognosis for the future.
268.I find that the mother will benefit from continuing professional support provided by Dr [S] and Ms [G]. The mother will have the continuing support of her parents. I accept Dr [S’s] opinion that if the children remain with her, the mother’s prognosis is good.
269.Dr [S] painted a somewhat bleak picture for the mother personally if the court decided that the children should live with their father. He opined that the mother in those circumstances may relapse into a depression. The court’s decision would be a significant psychological blow to the mother and in those circumstances she would be at substantial risk of developing a depressive disorder. Whilst Dr [S] maintained the view that in those circumstances the mother would not be an unacceptable risk of harming the children, he was not so certain about the risk of the mother harming herself.
A significant difficulty confronted by the father is that Dr W and Dr S gave concurrent evidence before his Honour and the father did not see fit to include that part of the transcript extracted within the appeal books. The difficulties emerging from that are self-evident.
With that caveat, it is important to observe that the difference between the two psychiatrists is hardly as extensive as what the father asserts. For example, the trial judge refers to Dr W not seeing the mother’s future prognosis in such “clear cut terms” when comparing it to the prognosis of Dr S. Importantly, Dr W said in his second report which was in evidence before his Honour:
I am concerned about [the mother’s] capacity to test reality. I indicated above that I do not think her judgment about [the father] is sound, although these matters can be unpredictable and I may not be correct about this. Dr [S] did not think this was the case, but he has not seen the material I have.
(Words enclosed in square brackets as per original).
As argued in the further supplementary outline of argument, the father contends:
The father has identified four factors which the Court should have considered, and failed to give consideration in its judgment, in regard to the competing views of Dr [W] and Dr [S]. The father submits that if the Court had given consideration to these factors, it may have and would have, preferred the opinion of its Expert Witness over the mother’s Expert Witness.
While there may have been, as is perfectly understandable, a difference in opinion between two psychiatrists, in particular one of whom is a reporting expert and another of whom is a treating psychiatrist of one of the parties, we are unable to see how any such differences inform any error made by his Honour or, indeed, how any such differences are germane to the central findings by which his Honour decided the orders that were in the best interests of the children. That is particularly true of any difference in the “diagnoses” of the two psychiatrists – that is, how the mother’s particular personality characteristics and psychopathology might be “labelled” or “categorised”.
Moreover, we consider that, again, the father’s conclusions as to the opinions of each of the psychiatrists are selective and ignore other aspects of their respective opinions directly relevant to his Honour’s ultimate determination. As one example, the father’s contends that “…in preferring Dr [S’s] prognosis for the mother’s future parenting capacity over that of its own Expert, the Court erred in failing to consider … Dr [W] [sic] expressed concern in regard to the failure of the mother and the resident grandparents to disclose to Dr [W] in 2009, their employment of a full-time nanny to assist the mother care for the children…” Yet, as is evident from his Honour’s reasons and as is evident from what we have earlier said in these reasons, the central issues confronting his Honour central to the best interest of the children were of significantly greater moment, including issues in respect of which each of Dr W and Dr S provided significant concurring evidence.
The following ultimate submission by the father, with respect, misses the point:
In summary, the father respectively submits that given the Court’s departure from Dr [S’s] opinion in relation to the mother’s ability to test reality, that it is incongruous for the Court, and that the Court erred, in preferring Dr [S’s] prognosis for the mother, over the prognosis of Dr [W].
(Bold emphasis in original).
In any event, nothing to which the father takes this Court satisfies us of any error. To the extent that the father identifies evidence in respect of which it can be said that the opinion of one expert has been given greater weight than the evidence of another, we can see no error.
There is no merit in this “ground”.
The Seventh “ground” – The Events of 20 July 2012
The challenge by the father under this “ground” appears to comprise two parts. The first centres on what his Honour said at [296] of the reasons:
296.…although I have no evidence (apart from the father’s own admission) that he directly made any comment about killing the children, for reasons that I set out below, I find the father had an acute event on 20 July 2012 during which he indicated to at least three professionals that he had thought of killing himself in the future. That acute event took place during a period of time when he had the children alone for a period of four hours. During this time, the father’s state of mind and behaviour was such that the children were at risk during that period of time. The period was ended only when a state wide alert by the police successfully found the father’s motor vehicle and apprehended the father with the children in the motor vehicle.
The father asserts that the “…events of 20 July 2012 had no bearing on the lower Courts’ conclusion as to best interests of the children which appears at Reasons 397 to 403.” The father also submits that the events of 20 July 2012 had no bearing on the orders made by the court, save for what is described by the court as “recognition contact” in the reasons at [406]. With respect to the father, the reference to those paragraphs of the reasons for judgment misrepresents both the extent of the findings made by his Honour and the profound significance which his Honour – quite properly – attached to the events of 20 July 2012.
While it might be true, strictly, that it is “…indisputable that the Court had zero evidence…” about the time period within which the children were with him subsequent to his unlawful removal of them from the Contact Centre. Yet, as is plainly evident in his Honour’s reasons, there was a significant volume of evidence upon which his Honour based his conclusions.
The submissions ignore the approximately 47 paragraphs of the reasons ([280]-[327]) in which those events are analysed, and also ignores the extensive evidence in and about those events admitted by his Honour upon the reopening of the case (outlined at [278]). Within those parts of the reasons, his Honour extensively details the multilayered ramifications of those serious events.
The second aspect of the challenge appears to be an assertion that the trial judge knew that the father “…had made an audio recording of every minute he spent with the children on 20 July 2012” and erred by way of procedural fairness to the father, in not requiring the father to tender that audio-tape, when in fact the father himself did not do so.
There is no merit in this “ground”.
The Eighth “ground” – Finality of Litigation
His Honour considered, correctly in our view, that s 60CC(3)(l) of the Act (likelihood of order leading to further proceedings) was an important consideration in this case.
The father submitted in the further written outline that:
The Court erred in failing to consider, that its recognition in Reason 387 that orders preventing the boys from seeing their father, would lead to the institution of further proceedings, largely precludes application of Section 60CC(3)(l), in a manner which favours the Court’s conclusion on best interest.
The Court also erred in failing to consider, that to extent Section 60CC(3)(l) has relevance to the conclusion of best interests, it mitigates towards a “change in residence”. That scenario holds no material risk of a need to initiate proceedings to enforce the mother’s access if the children live with the father. In contrast, that is the very risk contemplated by the Court in Reason 388, in the alternative scenario where the boys have access to the father while living with the mother.
With great respect to the father, we have considerable difficulty in understanding the gravamen of this submission.
His Honour found:
389.The only other way of course of ending the litigation is to make the orders that the father seeks. This is the option the father strongly advocates, but of course, he does not believe that the mother’s stated views about not seeing the children again are genuine. I find that what he seeks will effectively eliminate the mother from the children’s lives.
We consider that finding was well open to his Honour.
Earlier in the reasons, his Honour compared that scenario with other relevant scenarios arising from the potential orders and said of the father and those other potential orders:
387.The father described himself as in “warrior mode” and there is no doubt that he adopts a tenacious attitude to litigation. He referred on a number of occasions during the hearing that it was likely he would appeal (I inferred only in circumstances where I did not make the orders he sought). I have little doubt that he will appeal this decision, but if my orders are allowed to stand, then on balance it is likely that the litigation will end in the short and hopefully in also the medium term. That is not to say that the father may in some years time attempt on Rice & Asplund grounds to say that some significant change has happened that allows him to bring another application (it would be likely for example the father might assert that given the effluxion of time and the fact that the children are older, he should be entitled to bring a new application even though that alone would usually be insufficient).
388.The father also submitted that there was a “real risk” that the mother would breach any order made for the children to have contact with the father and that such a contravention would compel the father to “pursue proceedings for a change in the boys’ residence.” That of course will not be a risk if there is no order made in the father’s favour which the mother can breach (that is, if the mother’s application is successful and no order is made for the children to have time or communication with the father).
There is no merit in this “ground”.
The Ninth “Ground” – Independent Children's Lawyer’s Submissions
This “ground” embraces a challenge which is, with respect, also extremely difficult to understand.
Although it is said to be a challenge different to that which informs the challenge in respect of settlement discussions, the further written outline of argument appears to repeat just such an argument:
The father submits to this Honourable Court that if the Court had in fact had the benefit of that knowledge [i.e. that, allegedly, “the mother had agreed to a proposal by the Independent Children's Lawyer” for time between the father and the children], it is inconceivable that His Honour Justice Watts would have proceeded to make orders that prevented two 4 year old little boys, from ever again seeing their father.”
Otherwise the father asserts, it seems, as a separate point, that:
…The father respectfully submits that (notwithstanding absence of judicial error by a lower Court) the requirements of judicial fairness can require the Appeal Court to return proceedings to the lower Court, where the following circumstances are met:
(a)where the Appeal Court is satisfied as to the occurrence of an error by the Independent Childrens [sic] Lawyer appointed in the proceedings by the lower Court;
and
(b)The Appeal Court is satisfied that if the lower Court had been in possession of actual knowledge of that error, it may have made a materially different conclusion as to best interests of the children.
The separate point appears to be that natural justice or procedural fairness requires the matter to be returned to the lower court because the “error” of the Independent Children's Lawyer was not to inform Justice Watts about the alleged agreement of the mother to time during settlement discussions and/or because this Court should be satisfied that such “agreement” indicates a lack of candour on the part of the mother.
For the reasons given earlier we do not accept either proposition.
There is no merit in this “ground”.
The Tenth “Ground” – Expert Evidence Ethical Issues
This ground was not the subject of specific reference in the further written submissions, nor indeed in the oral submissions made by the father at the resumed hearing of the appeal.
It is, it seems, the issue which the father referred to as being a “very small issue” at the initial hearing of this appeal.[17] The earlier attempts by the Court to enunciate a precise “ground”, to which the father agreed, reads as follows:
[17] Transcript of Proceedings, 23 August 2013, p 81.
MURPHY J:…What his Honour did was to say, “The husband makes his assertions, and I don’t accept them”. Now, that’s one thing, but do I gather from just re-reading [grounds] 26, 27, 28 that your complaint is that “His Honour knew that I” … “challenged the” … “ethical and professional failings [of the single expert and the Independent Children's Lawyer], but his Honour’s reasons don’t demonstrate that he took account of it”? Is that really what you’re saying?
MR [RIMMINGTON]: Yes, yes.
MURPHY J:So it’s a reasons complaint…
MR [RIMMINGTON]: Yes.
…
MURPHY J:All right. So we will call that reasons in respect of experts.
MR [RIMMINGTON]: And it will come down a very small issue.[18]
[18] Transcript of Proceedings, 23 August 2013, p 81, lines 21-42.
At [248] of his Honours reasons, his Honour said:
The father on a number of occasions during the hearing asked questions or made statements which indicated that he had in his mind an intention or a possibility to sue particular professionals for negligent action or otherwise refer them to their disciplinary bodies. Those expressed or implied threats extended to the mother’s solicitor Mr Longworth; the mother’s barrister Mr Wong (the father emphasised that he had a “commitment” to referring Mr Wong to his regulatory body); Dr [S]; Ms [G] and Dr [W] (the father questioned Dr [W’s] expertise, quoting with approval a comment his brother (who is also a lawyer) had made that “These quacks who are the experts, they’re doing so much stuff in the courts that they don’t even have a private practice where they interview people. They’re full time court people. They have no experience in actually interviewing and assessing people.”) I find that the behaviour of Mr Wong and Mr Longworth as I observed it during the hearing to be beyond reproach and that particularly applies to the way Mr Wong asked questions of the father and his witnesses.
No appealable error is revealed by the father’s initial grounds 26 to 28 above. To the extent that ground 27 asserts procedural unfairness, no argument raised by the father in writing or orally provides any basis for that assertion.
It has not been demonstrated how, if at all, it could be said that the alleged “ethical failing” contributed to “decisions that are clearly wrong”.
To the extent that this is a ground of appeal at all, there is no substance to it.
Conclusion
We can see no merit in any of the challenges raised by the father, nor can we ourselves discern any error by his Honour warranting the intervention of this Court.
The appeal should be dismissed.
Costs
As is the usual practice, at the conclusion of the appeal we sought submissions in respect of the costs from each of the parties.
The appeal having been wholly unsuccessful, the mother seeks an order that the father pay her costs.
In response, the father relied upon what he termed to be an “offer” of settlement. The “terms” of that offer are exemplified in the following exchange between the father and Bryant CJ:
MR [RIMMINGTON]: The father has – and I think it’s the – it’s some of the documents I put into the court. I put a settlement offer to the mother where I offered to pay all the mother’s costs to date and withdraw my appeal.
BRYANT CJ: If?
MR [RIMMINGTON]: If the mother could produce any evidence from the three-hour tape I provided 20 July ’12 which showed I was an irresponsible father and the mother hasn’t chosen to do that.
(Transcript of proceedings, 13 February 2014, p 65, lines 22-28).
Thus, the father’s “offer” to withdraw the appeal was subject to the mother accepting evidence which the trial judge had refused to admit and conceding that it did not demonstrate that the father was “irresponsible”. Whilst a “…timely offer in writing genuinely made might … be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation”, in no way does the father’s alleged “offer” meet that description (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [11], emphasis added).
In light of the fact that the father has been wholly unsuccessful and given his proposal cannot properly be seen as an “offer” for the purposes of s 117(2), we consider there to be justifying circumstances for a departure from s 117(1) of the Act. We will, then, order that the father pay the mother’s costs of the appeal.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ and Ainslie-Wallace and Murphy JJ) delivered on 7 August 2014.
Associate:
Date: 7 August 2014
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