Rodelgo and Blaine
[2019] FamCAFC 73
•26 April 2019
FAMILY COURT OF AUSTRALIA
| RODELGO & BLAINE | [2019] FamCAFC 73 |
| FAMILY LAW – APPEAL – PARENTING – Where the trial judge conducted a discrete trial, as a separate issue or matter within the meaning of Division 12A of Part VII of the Family Law Act 1975 (Cth), of the issue as to whether the children were at risk of harm from either parent – Where the experts in the case were not cross-examined at trial pursuant to directions made by the trial judge – Where the trial judge made findings of fact following the conclusion of the trial and sought submissions from the parties as to the utility of any further hearing, or whether the Court should proceed to make final orders – Where the Independent Children’s Lawyer and the mother sought that the trial judge make final parenting orders – Where the father opposed the making of final orders and sought a further hearing – Where the trial judge made final parenting orders – Where no substantial injustice was occasioned to the father in the procedures the trial judge adopted – Where there was otherwise no substance in the complaints raised by the father on appeal – Appeal dismissed – No order as to costs. |
| Crimes (Domestic and Personal Violence) Act 2007 (NSW) Family Law Rules 2004 (Cth) r 22.39 |
| Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 B & J [2009] FamCAFC 103 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9 De Winter and De Winter (1979) FLC 90-605 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Mims & Green and Green (2008) FLC 93-359; [2008] FamCAFC 13 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 Schorel and Schorel (1990) FLC 92-144; [1990] FamCA 58 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 |
| APPELLANT: | Mr Rodelgo |
| RESPONDENT: | Ms Blaine |
| FILE NUMBER: | LEC | 271 | of | 2015 |
| APPEAL NUMBER: | NOA | 40 | of | 2017 |
| DATE DELIVERED: | 26 April 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Kent & Hogan JJ |
| HEARING DATE: | 15 May 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 July 2017 |
| LOWER COURT MNC: | [2017] FCCA 1672 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Horsley |
| SOLICITOR FOR THE RESPONDENT: | O’Reilly & Sochacki Lawyers |
Orders
The mother have leave to rely on her Summary of Argument filed on 17 April 2018.
The father’s oral application to adduce further evidence on appeal be dismissed.
The father’s appeal from the orders made in the Federal Circuit Court of Australia on 20 July 2017 be dismissed.
There be no order as to costs of this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rodelgo & Blaine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 40 of 2017
File Number: LEC 271 of 2015
| Mr Rodelgo |
Appellant
And
| Ms Blaine |
Respondent
REASONS FOR JUDGMENT
On 20 July 2017 a Federal Circuit Court of Australia judge made final parenting orders[1] concerning X (born 2011) and Y (born 2013), the children of Mr Rodelgo (“the father”) and Ms Blaine (“the mother”).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders provide, inter alia, for:
a)The mother to have sole parental responsibility for X and Y and advise the father by email in relation to any proposed long term decisions for the children;
b)The children to live with the mother and spend supervised time with the father for no less than two hours per fortnight;
c)The father to send the children cards, letters and gifts at Christmas, Easter and the children’s birthdays, and the mother to ensure that the written material and gifts are appropriate before providing them to the children; and
d)The father to be restrained from contacting the mother, approaching (or using a third party to contact/approach) the mother or the children and coming within 100 metres of the mother’s residence, the mother’s place of employment, the children’s school or their extra-curricular activities.
The father appeals all of the orders made 20 July 2017 and seeks that the proceedings be remitted for rehearing in the Federal Circuit Court of Australia. The mother opposes the appeal. The lawyer appointed pursuant to s 68L of the Act to independently represent the children’s interests in the proceedings (“the ICL”) and who participated in the proceedings at the trial stage, did not participate in the appeal.
As will be further discussed, the issue which was ultimately of determinative significance to the parenting orders the trial judge made was whether the children spending unsupervised time with the father posed an unacceptable risk of harm to them. On 20 and 21 February 2017 the trial judge conducted a trial, as a separate issue or matter within the meaning of Division 12A of Part VII of the Act,[2] of the issue as to whether the children were at risk of harm from either parent. In reasons for judgment delivered on 22 February 2017 (“the risk reasons”) the trial judge recorded detailed findings for his Honour’s conclusion that there exists an unacceptable risk of physical harm and of emotional harm to the children should they have unsupervised time with the father.
[2] See, in particular ss 69ZQ and 69ZR.
Having made those findings the trial judge ordered on 22 February 2017 that written submissions be provided by each parent and the ICL as to the following questions:
a)Whether it is appropriate to make final orders;
b)Whether a further hearing is necessary; and
c)If final orders are appropriate, what final orders ought to be made.
It bears emphasis that the trial judge’s approach in this respect was permissible pursuant to Division 12A of Part VII of the Act. That Division sets out, in s 69ZN, the principles for conducting child-related proceedings. These include:
…
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Moreover, s 69ZQ(1) provides that in giving effect to these principles the Court must, for example:
…
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
...
(c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d) in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and
…
(g) deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.
Added to this, s 69ZR expresses the power of the Court to make determinations, findings, and orders at any stage of child-related proceedings. Subsection (1) of that section provides as follows:
(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Given the subject matter of the separate issue or matter heard discretely by the trial judge over the two days of 20 and 21 February 2017, and the determinative significance of findings concerning that issue upon parenting orders to be made in the children’s best interests, it is not surprising that the trial judge would seek to canvas with the parties, and afford them the opportunity to be heard about, the utility of any further hearing, or whether the Court should proceed to make final orders.
Each party filed submissions, as had been ordered by the trial judge on 22 February 2017. Each of the ICL and the mother submitted that it was appropriate and in the children’s best interests for final orders to be made without the need for any further hearing. Each of them sought orders for the mother to have sole parental responsibility for the children, and for the children to live with the mother and spend time with the father supervised at a contact centre. For his part, the father opposed the making of final orders and sought a further hearing. He opposed the orders sought by the ICL and the mother.
In further reasons for judgment delivered on 20 July 2017 (“the parenting orders reasons”) the trial judge explained his conclusions as to the desirability of the Court proceeding to make final orders; and the orders the trial judge determined were in the children’s best interests. As noted, those orders provided for, inter alia, the mother to have sole parental responsibility for the children and for them to live with the mother, and spend supervised time with the father, for no less than two hours per fortnight, at a contact centre.
In addressing this appeal it is obviously necessary for the risk reasons and the parenting orders reasons to be read together as both sets of reasons underpin the parenting orders the subject of this appeal.
A question of procedural fairness – the procedure adopted by the trial judge
The father represented himself in the trial proceedings as he did on appeal. He has no relevant legal training or qualifications and English is not his first language, his country of origin being Country Z, South America.
The father sought to argue his appeal in conformity with the challenges advanced in his Summary of Argument, as distinct from his grounds of appeal, and the mother consented to that course, having addressed in her Summary of Argument on appeal the father’s arguments as if these comprised the grounds of appeal. We therefore acceded to the father’s request for leave to amend his grounds of appeal to conform with his Summary of Argument.
Before dealing with the challenges the father directly raises on appeal, it is necessary that we address a question arising as to the procedure adopted by the trial judge. That is so because, first, at least some of the father’s challenges are informed by the procedural question referred to and, second, if a procedural irregularity at trial results in a denial of natural justice or procedural unfairness, and thus constitutes an error of law, this Court is bound to address it on appeal irrespective of whether or not the error is specifically raised by a ground of appeal.[3]
[3]Warren v Coombes (1979) 142 CLR 531.
The trial of the discrete issue was set down for hearing by the trial judge at an interim hearing which took place on 17 October 2016. That was the hearing of the father’s application for variation of the then operative interim parenting orders and for a change of venue of the proceedings from Town E. In disposing of that application, the trial judge said this:[4]
HIS HONOUR: What we’re going to do is this. We’re going to keep the matter here. Not going to send it to Brisbane or [Suburb C] or anywhere else. I’m going to list it for trial before me in the week commencing 20 February. At 10 am on the – be in the list of cases to start on 20 February at 10 am. But it’s going to be a trial in respect of the issues of unacceptable risk. I’m going to exercise my powers under division 12A to limit the issues to be tried to questions of fact that the mother says give rise to an unacceptable risk of harm. So I’m going to make a determination about violence, about these threats, about your psychiatric condition, about all of those things and make some findings about the level of unacceptable risk. And then once we’ve done that, we will then give those findings and that judgment to the family consultant for an updated report, for an opinion based upon the findings of fact that the court has made. You understand that?
[THE FATHER]: Yes, I understand.
(Emphasis added)
[4] Transcript 17 October 2016, p.17 lines 16–29.
In further reference to the purpose of the trial the trial judge said this:[5]
HIS HONOUR: So the outcome of the trial won’t be some parenting orders. The outcome of the trial will be findings and perhaps declarations about contact – sorry – about the various acts and things that the mother alleges and unacceptable risk of harm for these children…
[5] Transcript 17 October 2016, p.18 lines 7–10.
Importantly, there were two experts who had provided reports. Ms T, family consultant, had prepared a family report dated 4 December 2015 and Dr L, psychiatrist, had prepared a report dated 11 July 2016 of her psychiatric assessment of the father. As to those experts, and potential further evidence from those experts at the trial of the discrete issue of risk, the trial judge said:[6]
HIS HONOUR: Okay. Each party can file and serve their affidavits of evidence in chief by themselves or any witnesses by 4 pm on 30 January, an outline of case in the usual form by 4 pm on 13 February, and it will be in the list of cases on the 10th of – sorry – on 20 February at 10 am. Now, there won’t be any question of cross-examining report writers or experts; it’s just a fact-finding expedition…
(Emphasis added)
[6] Transcript 17 October 2016, p.18 lines 33–37.
Whilst that direction about there being no cross-examination of “report writers or experts” was not formally incorporated in the orders and directions the trial judge made on 17 October 2016 for the February 2017 trial, each of the parties certainly proceeded on the basis that neither of the expert witnesses were to be called to give evidence or be cross-examined. The February trial was conducted on that basis.
Curiously, at the trial the trial judge seems to have overlooked his earlier direction in this respect. At the trial, in the course of closing submissions on the second day on 21 February 2017, when counsel for the mother referred to the direction that had been made in the hearing on 17 October 2016, the trial judge took issue with counsel’s observation that it had effectively been directed that there would not be an opportunity to cross-examine experts. The trial judge referred to having obtained a transcript (of 17 October 2016) and suggested that it was not correct that such a direction had been made. The trial judge read out parts of the transcript of the 17 October 2016 hearing in an effort to demonstrate that no such direction had been made. However, in reading some parts of that transcript the trial judge overlooked the passage earlier quoted above in relation to that particular direction.[7]
[7] Transcript 21 February 2017, p.107 line 5 to p.108 line 40.
In reading that earlier transcript his Honour observed:[8]
…There is no reference to not being able to cross-examine a report-writer or a psychiatrist. Not that it matters – I don’t think – because there was no issue taken with what – with the factual statements made by the father to the family-report-writer.
(Emphasis added)
[8] Transcript 21 February 2017, p.108 lines 35–39.
Plainly, the trial judge’s reading and quotation from the transcript was incorrect. There clearly was express reference by the trial judge to there being no opportunity for any party to cross-examine experts. However, the trial judge correctly observed that the father had not taken issue with the accuracy of the family report writer’s recording of his statements in interview, which explains the trial judge’s observation “not that it matters” and that there was no issue about what was said – a matter which otherwise might have been a topic for cross‑examination by the father of the expert.
In circumstances where the trial judge had, on 17 October 2016, foreshadowed that the purpose of the February 2017 trial was as quoted above, that is, to make findings as to unacceptable risk and then obtain a further family report; and that the outcome of the trial would not be the making of parenting orders; the fact that the trial judge did not follow that course and proceeded to make final parenting orders raises a question as to procedural fairness to all parties, in particular the father who opposed that course and sought a further hearing. Allied to that is the feature that as at the 17 October 2016 hearing the trial judge directed that there would be no cross-examination of experts, and the February 2017 trial proceeded on that basis; with the result that the parenting orders were ultimately made without any party having had the opportunity to cross-examine the experts.
In other words, it is clear that as at 17 October 2016 the trial judge envisaged that the February 2017 trial would be confined to the discrete exercise of determining the question of unacceptable risk. His Honour proposed that findings made on that question would be furnished to the family report writer for an updated report, presumably with a view to then conducting a trial of the parenting issues in the usual way, that is, with parties having the usual opportunity of cross-examining expert witnesses. The question that arises in consequence of the trial judge’s departure from this foreshadowed method of procedure is whether there was a consequent denial of procedural fairness to the father, sufficient to constitute a substantial injustice, such as to warrant a re-trial.
We have resolved that having regard to the nature and substance of the determinative issue in this case, specifically the seriousness of the acts of family violence perpetrated by the father historically, allied with the unacceptable risk of physical harm and of emotional harm to the children of spending unsupervised time with the father as the trial judge found; taken with the opportunity afforded by the trial judge to the parties to make written submissions as to whether or not the Court should proceed to make final parenting orders (and the nature of the father’s submissions in that respect); no substantial injustice was occasioned to the father in the procedures the trial judge ultimately adopted. We elaborate upon that conclusion by reference to the evidence and the findings of the trial judge.
The trial judge’s findings as to family violence
The trial judge’s risk reasons detail numerous findings, unchallenged on this appeal, as to serious acts and kinds of family violence perpetrated by the father. For present purposes it is unnecessary to restate in full each and every of those findings by the trial judge. The following summary suffices:
a)On the day of the parties’ final separation in December 2013 the father became agitated with the mother and by his own account “exploded”. He grabbed the mother by the throat with his left hand and held a knife to the mother’s throat with his right hand in a threatening manner and threatened the mother with the words: “[i]f you leave me, I will fucking kill you”. The father also hit the mother across her jaw and attempted to strangle the mother. At the time of this attack the mother was holding the parties’ infant son in her arms and the parties’ older child was present and witnessed these events (the risk reasons at [22]–[30]);
b)The police took the father to the Region D Hospital. There the father told a social worker that if his children had not been present he would have killed the mother (the risk reasons at [32]);
c)Nearly two months after the date of the parties’ separation, in late January 2014, the father had a telephone discussion with a staff member of the Region D Triage Facility. The father reported that he was going to pour petrol, or thought about pouring petrol, on the mother and setting her alight. He was asked about whether he would do that and he replied that he might. When he was asked about what might happen if he did that, he replied, “I don’t know. Do you want me to try?” (the risk reasons at [38] and [39]);
d)A few days later, in early February 2014, the father had another telephone discussion with a staff member at the Region D Triage Facility and he reported during that telephone conversation that he gets angry easily; that he has thoughts of wanting to hurt the person who has made him angry; that he becomes impulsive when he is angry; and that he sleeps less, due to ruminating thoughts about wrongdoings against him (the risk reasons at [40] and [41]);
e)In April 2015 the father had a telephone conversation with a G Group operator. He said to the G Group operator words to the effect that during some contact some times when his “ex is talking to him, he feels like strangling her” (the risk reasons at [42]);
f)On 30 November 2015 the parents attended upon the family consultant Ms T for the purposes of a family report during which Ms T conducted a joint interview between the parents. The relevant record by the family reporter is as follows (the risk reasons at [43] and [44]):
17.The consultant then asked each parent to say what they thought might improve the current situation for the children. The mother said that she wanted to have an open dialogue with the father, but with acknowledgement of the past and how it impacts on the present and future. She added that the father needed to recognise the children’s ages and stages of development so that his time with them could be safe and continuous and stable. The consultant then asked the father what he thought might improve the situation for the children, and he replied “for her to die”. He then added “just let the judge decide”. The consultant ended the interview. The father appeared unaware and unconcerned at the effect of his words on the mother, who was clearly intimidated and fighting back tears.
(Emphasis added)
g)In the father’s separate interview with Ms T he told her “I always fulfil my promises. I’ll find it very hard not to fulfil one of them”. Asked what he was referring to the father replied, “killing her” (with reference to the mother) (the risk reasons at [45] and [46]);
h)The father has habitually been abusive verbally to the mother. For example, following August 2014 there was ongoing harassment and threats from the father towards the mother. Earlier, in approximately February 2011 when the mother fell pregnant with the parents’ oldest child, the father would often tell the mother throughout her pregnancy words to the effect of “you’re a slut and a whore” (the risk reasons at [57] and [58]);
i)The trial judge found there to be many examples of the father treating the mother “very poorly by calling her names, by harassing her and by engaging in behaviours which are designed to cause her distress and discomfort” (the risk reasons at [58]).
As the foregoing summary of events reflects, whilst the unfortunate assaults by the father upon the mother that occurred on the day of separation in the presence of their children reflect what may be the high point of the father’s violent behaviour towards the mother, his aggressive attitude towards the mother is documented to span a significant period of time and continued for a very substantial period thereafter. The fact that the father could say what he did to the family report writer Ms T, on 30 November 2015 in the mother’s presence as referred to above, speaks volumes.
Importantly, as regards the prospect of cross-examination of experts, none of the trial judge’s findings about the father’s family violence depended upon any contest about expert evidence. That is, the father largely admitted all of the particulars referred to including the statements he had made to experts. In other words, evidence from, or cross-examination of, the experts in this context was not capable of adding anything of forensic value. The trial judge himself referred to the feature that there was no factual contest residing in the expert evidence with his Honour’s observations at [12] of the risk reasons as follows with respect to cross-examination of the family report writer Ms T:
12.The father’s application in a case was preceded by a family report that was released on 7 December, 2015 prepared by a family consultant, [Ms T]. As a result, it seems, of some confusion, there was no cross-examination of [Ms T], but as matters turned out, it was unlikely that any cross-examination of her would have been useful.
Impact of father’s conduct upon the children
In relation to the father’s family violence directed to the mother to which the children were exposed, the trial judge recorded the following in the risk reasons at [75]–[77] including by reference to the evidence of the expert psychiatrist Dr L:
75.As to the question of physical harm, counsel for the Independent Children’s Lawyer highlighted the episode that occurred so long ago as December, 2013 but pointed out that that occurred in the presence of the children as I have now found. That is of considerable concern because, as [Dr L] points out in her report, the very fact that children have witnessed violence between their parents is of considerable significance. [Dr L] sets out in her report the risks for children who might be exposed to violence between their parents.
76.Counsel for the Independent Children’s Lawyer emphasised that there was reason to be concerned about the father’s physical threats towards the mother because, in the father’s view those threats were justified by reason of her behaviour. It would not be difficult to imagine that as these children grow older, and their behaviour towards the father becomes more challenging, that he would be likely to make threats towards them perhaps not to kill them but threats nonetheless, which might have an effect on their physical and emotional welfare. Counsel for the Independent Children’s Lawyer highlighted the callous nature of the threats made by the father towards the mother about which the mother was informed and which must have caused her considerable distress.
77.The father’s behaviour indicates a proclivity towards impulsiveness – impulsiveness that follows upon him being challenged and his authority being challenged. The notes of the contact centre are consistent with that view. Counsel for the Independent Children’s Lawyer pointed out that in her report [Dr L] recommended that the father continue his counselling with those that were providing assistance to him. I have already recounted the recommendations made by [Dr L] in that respect.
The reference by the trial judge to the “notes of the contact centre” is a reference to a body of documentary evidence comprising noted observations made by the contact centre personnel as to the father’s supervised visits with the children, which were in evidence at trial. Quite apart from the impact upon the children of family violence directed to the mother, these notes reflect that the children had obviously also been subjected to unfortunate behaviour by the father from time to time on supervised contact visits. The trial judge records a finding (at [49] of the risk reasons) that the father is “overzealous when it comes to the welfare of his children”. That finding is illuminated by the further various findings of the trial judge relating to numerous instances of the father being fixated upon the idea that the mother had caused bruising to the legs of one of the children with a broomstick, and the father continually and inappropriately checking the children for bruises at contact visits (the risk reasons at [50] and [54]). Further, the exchange between the father and X on 10 December 2016 as recorded in contact centre notes (Exhibit 9) and referred to at [55] of the risk reasons is one of many examples appearing in the reasons of the father interacting with the children in ways distressing to them. The trial judge also records findings as to examples where the father has, wrongly, attributed motives to the mother of attempting to antagonise him, even with something as simple as having the children bringing him a gift to the contact centre (the risk reasons at [59] and [60]).
The case the father advanced against the mother in the proceedings is instructive, including as to the children’s exposure to the father’s conduct. Apart from the repeated assertion that the mother struck their daughter with a broomstick to the legs with sufficient force to leave bruising, the father’s case against the mother variously included propositions to the following effect:
a)That the mother does not care for the children properly;
b)That the mother fails to provide the children with adequate medical attention;
c)That the mother allows the children to live in an unhygienic household;
d)That the children regularly suffer from skin fungi, ringworms or bowel worms;
e)That the mother exposes the children to pornographic paintings, apparently located in common rooms;
f)That the children are sent to the contact centre in dirty clothes and smelling of cat urine;
g)That the mother has the children stay up late watching “scary movies” the night before contact visits with the father, or the mother wakes the children during the night before contact visits, so as to exhaust them.
The trial judge rejected each and every of these allegations and did so with reference to the extensive records of the contact centre tendered in evidence (the risk reasons at [50]–[54], [56], [59], [60] and [62]–[66]). As was open to his Honour to do, the trial judge preferred the evidence of the mother to that of the father where they were in conflict in relation to these issues.
The trial judge found that none of the contact centre notes supported the father’s case with respect to any of the above particulars he advanced and the trial judge found that to be so notwithstanding that the father had the opportunity to place into evidence any (further) relevant records (the risk reasons at [64] and [66]).
The opportunity to be heard on proceeding to final orders
As already noted, upon delivery of the risk reasons the trial judge afforded the parties the opportunity to be heard by way of written submissions as to whether or not it was appropriate for the Court to proceed to make final orders or whether a further hearing was necessary and, if appropriate, upon the question of what final orders ought be made.
It bears emphasis that the trial of the discrete issue involved each of the parents, and the witnesses they each relied upon, giving oral evidence and being
cross-examined. In short, Ms T, the family report writer, and Dr L, the expert psychiatrist, were the only identified witnesses who did not give oral evidence at that trial, but of course evidence from each of those witnesses was forthcoming in the form of their respective written reports. Importantly, the matters of fact recorded in the reports were not in contest.
As earlier noted, both the mother and the ICL provided written submissions supporting the proposition that it was in the children’s best interests for the Court to proceed to make final orders. Whilst, as also earlier noted, the father sought to have a further hearing before final orders were made, his written submissions in support of that proposition were not founded upon any contention to the effect that he wished to have the opportunity to cross-examine either of the expert witnesses. In short, there was no agitation by the father to the effect that he wanted the opportunity to cross-examine either of the expert witnesses before the Court proceeded to make final parenting orders. His written submissions can be seen to be largely a re-agitation of complaints about the mother of the kind already discussed.
It is for these reasons that we conclude that there was no relevant denial of procedural fairness to the father in the procedures adopted by the trial judge.
Even if, contrary to our judgment, it is assumed that what occurred here in terms of the procedures adopted by the trial judge constituted a departure from the rules of natural justice, we are not persuaded that the father demonstrates that as an aggrieved party he is entitled to an order for a new trial. In the circumstances here, we are not of the view that a further trial involving cross-examination by the father of both experts could possibly have produced a different result given the nature of the issues and the findings of the trial judge. In this context we refer to the discussion of relevant authority by the Full Court of this Court in Cooke & Morton.[9]
[9] (2018) FLC 93-820 at [33]–[43].
Application for further evidence on appeal
Rule 22.39 of the Family Law Rules 2004 (Cth) (“the Rules”) requires that a party seeking an order for this Court to receive further evidence on appeal must file an application at least 14 days before the commencement of the sittings, supported by an affidavit either describing the nature of the further evidence, or including the further evidence. The father failed to comply with this rule in making an oral application only upon the hearing of the appeal. That non-compliance is probably sufficient reason in and of itself to dispose of the application, but we will engage with further reasons for taking that course.
The father seeks to adduce by way of further evidence a transcript or transcripts of domestic violence proceedings which took place in July 2016 in local Magistrates Courts. Seemingly, the father contends that the evidence before, and findings of, a local court Magistrate should assume some kind of determinative significance to the issues determined by the trial judge. This assumes there is something in the transcript which demonstrates that – a matter about which we know nothing given that the transcript was not made available to us. In any event, the proposition that the evidence before, or findings by, a local court Magistrate should assume some kind of determinative significance is plainly misconceived. In the proceedings before the trial judge each party had the opportunity, and took that opportunity, to place evidence before the trial judge. Each party elected to adduce evidence before the trial judge on the discrete issue of risk. The trial judge had the advantage of seeing each party give oral evidence and undergo cross-examination, including by the ICL. The trial judge was bound to determine the issues of fact on the evidence before him and can be seen to have done so.
The father fails to identify any basis, consistent with the well-known principles expressed in CDJ v VAJ[10] for this Court to exercise discretion in favour of receiving transcript or transcripts of local court domestic violence proceedings as further evidence on questions of fact. It bears repeating that the father admitted to almost all of the factual matters discussed by the trial judge in support of his Honour’s findings concerning family violence.
[10] (1998) 197 CLR 172.
A further topic the father identifies as that which he seeks to adduce by way of further evidence before this Court, is what the father refers to as the “second” police report. By way of explanation, part of the father’s case at trial was, in summary, that in August 2016 he saw significant bruising to his then four year old daughter’s legs. He asserted that his daughter told him the mother caused that bruising by striking her with a broomstick.
The father caused the New South Wales police to attend at the mother’s residence on the evening of 6 August 2016. The police report of that attendance was in evidence as one of the annexures to the mother’s affidavit. It is uncontentious that the police report records that the police attended at the home that evening and found no bruising present on the child’s legs.
The father asserts that a second and later attendance was made by the police at which time he asserts the police did see bruising. In the course of argument during the appeal it became evident that the father has never seen such a report but simply asserts that that is what it contained. In fact, there is a “second” report in the sense that a subsequent report was generated by the police on 21 August 2016 from a further attendance by police that day. That report is likewise annexed to an affidavit of the mother and relevantly reads as follows:
On 21 August, 2016 at 12.52pm [Town W] Police attended [Q Street], [Town W] in relation to a telephone call received from [the father] (estranged father) in relation to concerns for his daughter, [X] (4 yrs) who told him she had been hit across the legs with a broom handle. Police attended and spoke with mother … who was co‑operative and allowed Police to view her daughter’s legs. Police saw her legs and nothing untoward was seen, when Police lifted her dress slightly to view her legs the little girl stated [Y] hit me across the legs with the broom.
Police were satisfied with the well being and care of the children they appeared happy, well kept and progressing to the level of their ages.
…
(As per original)
Not only is there no basis for the admission of the “second” report as “further evidence” given that it is already in evidence, it does not constitute evidence of the nature represented by the father. Despite his daughter having plainly stated it was her brother, and not her mother, who struck her with a broomstick, the father has refused to relinquish the stated belief that the mother acted in this way. Indeed, in argument of the appeal, it was clear that the father saw success of this appeal, as distinct from any further parenting orders application brought by him, as the means by which he might re-agitate this particular issue in further parenting proceedings.
The father contends that he has done further parenting or like courses and that certificates as to these courses should be received by this Court as further evidence on appeal. We will, in addressing the father’s substantive arguments on appeal, discuss the evidence concerning parenting courses and the like and having regard to that discussion, we are not of the view that there is any basis to exercise the discretion to receive any of this material as and by way of further evidence on appeal.
For these reasons the father’s oral application to adduce further evidence on appeal is dismissed.
The father’s challenges on appeal
As earlier noted, the father was given leave to rely upon the challenges advanced in his Summary of Argument, as distinct from his grounds of appeal, and we will deal with those challenges.
Finding that the father failed to follow the recommendations of Ms T and Dr L
The father contends that the learned trial judge’s findings that the father had failed to follow the recommendations of Ms T (the family report writer) and Dr L (the single expert psychiatrist) were contrary to the weight of evidence or failed to take into account relevant evidence.
As is recorded in the report of Dr L, the father attended upon her for assessment on 18 May 2016.
Dr L set out the following recommendations in her report dated 11 July 2016:
1.If any issue of safety for the children is identified, then such measures should be put in place to ensure the children’s safety.
2.That both parents respect the children’s relationship with the other parent and refrain from criticising or denigrating the other parent, or acting or influencing the children to be fearful. The parents will need to trust in the decisions of the court in regard to the children’s safety.
3.That [the father] continue counselling with his psychologist. Suggested issues for inclusion include: management of depression and anxiety, anger management, reactions to conflict and loss, and continuing to resolve his anger with [the mother] such that he can interact with her in a respectful way, avoid being provoked (should that occur or he perceive that as her intention), and can support the children’s relationship with their mother.
4.If there is a deterioration in [the father’s] mood or functioning, referral to a psychiatrist is recommended for assessment and management, including assessment of the advisability of medication. That [the father] comply with the recommendations of the psychiatrist if this should occur.
5.That [the father] engages with parenting courses that provide information about childhood development and assist him to develop an authoritative parenting style, if not already completed. Information about the effects of exposure to aggression would also be useful.
6.Children benefit from reasonable consistency, including across separated households. Therefore it is respectfully suggested that it would be beneficial for both parents to complete the same courses in parenting and post-separation communication. It is to the children’s benefit if both parents value and strive to achieve an authoritative parenting style.
7.That both parents complete a post-separation Parenting Orders Program or similar, if not already completed.
8.As above, no psychiatric illness, major personality disorder such as would impact on parenting or current risk to the children was identified. Therefore, it is recommended that the amount of contact and degree of supervision of contact be guided by current observations of [the father’s] interactions with the children, with gradual increase if his interactions are appropriate.
9.In the absence of risk to the children, it is to their benefit to have a relationship with both parents. [The father] is reporting high levels of motivation to maintain the relationship with his children. It is respectful recommended that there be consideration of a contact centre that is between the parents home locations so as to facilitate contact, especially if it is deemed appropriate for contact to increase.
(Errors and omissions as per original) (Emphasis added)
It is important to note that Dr L set out, in Appendix A to her report, her sources of information. Those sources include, at item 15, a copy of a letter from one Mr F, psychologist dated 12 May 2016 which was provided to Dr L by the father.
The content of that particular letter was not in evidence before the trial judge nor does that particular letter form part of the appeal record. Another letter from Mr F was attached to the father’s affidavit material. That letter is undated but must be later in time than May 2016 given the content of that letter referring to events in August 2016.
However, the point to be made is that Dr L made the recommendations she did, including in particular recommendation 3 quoted above, notwithstanding evidence put before her by the father from his treating psychologist. That is, despite being aware of the involvement and advice (and presumably views held by) the father’s treating psychologist, Dr L recommended ongoing and specific kinds of therapy for the father (recommendation 3) and postulated psychiatric management if a deterioration occurred (recommendation 4).
The father deposed in his affidavit for trial filed on 30 January 2017 at paragraph 92:
92.I have a print out of 935 messages from [the mother] and myself. In these messages anybody can read and understand that I have not harassed [the mother]. In fact I have given into whatever she demands or asks of me including signing a blank piece of paper all in order to see my kids. The last time I contacted [the mother] was on the 09/11/2015 and previous to that all of our communications were strictly about the children and infringement notices she accumulated against me. I have stopped using prescription steroid as the affected my moods and am halfway through a Domestic and Family Violence program which every time that I go I realize how much I was actually getting abused by her. I have been seeing my psychiatrist on a regular basis which he wrote in a letter that states I am no danger to [the mother], my kids, myself or anybody. I live 140km from [the mother] and have not been in [Town W] since she asked me not to come to her house on the 11/03/2015…
(Errors and omissions as per original) (Emphasis added)
The father’s oral evidence at trial when cross-examined was to contrary effect. On his own oral evidence under cross-examination, the father was not continuing with his counselling with his psychologist and he gave evidence that the last occasion upon which he had seen his psychologist was approximately July 2016:[11]
When was the last occasion on which you saw your psychologist?---July maybe.
Last year?---Yes. I think so.
[11] Transcript 20 February 2017, p.63 lines 27–29.
From the father’s own evidence he was not, as Dr L had recommended, maintaining counselling with his psychologist. Nor on the father’s evidence was it demonstrated that he had undertaken therapy for the specific issues suggested by Dr L.
The father does not appear to have continued with counselling or completed any further courses as recommended by Dr L after the psychiatric assessment. In particular, as quoted above, Dr L recommended:
3.That [the father] continue counselling with his psychologist. Suggested issues for inclusion include: management of depression and anxiety, anger management, reactions to conflict and loss, and continuing to resolve his anger with [the mother] such that he can interact with her in a respectful way, avoid being provoked (should that occur or he perceive that as her intention), and can support the children’s relationship with their mother.
…
5.That [the father] engages with parenting courses that provide information about childhood development and assist him to develop an authoritative parenting style, if not already completed. Information about the effects of exposure to aggression would also be useful.
Upon review of the record and transcript, there does not appear to be any evidence to suggest that the father undertook any courses in relation to developing an authoritative parenting style or sought any further assistance from his psychologist, Mr F, after the psychiatric assessment was published. Further, the father asserts at paragraph 11 of his Summary of Argument that Mr F states in his letter that the father has “followed the recommendations of [Dr L]”. Mr F does not say this in the letter annexed to the father’s affidavit filed on 30 January 2017. In fact, it is not even clear whether the letter was written before or after the psychiatric report was published.
Reference has already been made to the feature that despite the police evidence being to contrary effect, the father has adhered to the view that the police identified bruising on his daughter’s legs. In this context then the following content of the undated letter from the father’s psychologist, considered with Dr L’s recommendations, resonates:
Recently [the father] has reported to me that his daughter had shown him bruises on her leg which she said were caused by her mother hitting her with a broom stick with sufficient force to break the same. [The father] said that the NSW Police had done a welfare check and confirmed that there was bruising on the girl’s leg, as claimed. This matter has caused [the father] significant distress as he says that he is fearful for his children’s safety. As a result, [the father’s] depression and anxiety levels have recently deteriorated, requiring additional treatment to which he is now responding.
Plainly then the relevant findings made by the trial judge were open on the evidence. In the risk reasons the trial judge recorded the following:
78.Counsel for the Independent Children’s Lawyer quite properly pointed out that the father has not done the things that [Dr L] recommended. He has not continued his counselling with his psychologist or any psychologist. He has not sought assistance for the management of depression and anxiety or anger management or his reactions to conflict and loss. He has not sought assistance with a view to resolving his anger with the mother. Indeed, as was pointed out in submissions, whilst the father has done some courses, the parenting orders program and other parenting courses, he told the family report writer that they were of no benefit to him and that he received no assistance from them. They are very concerning matters.
In the parenting orders reasons the trial judge recorded the following:
27.One of the curiosities of the case is the impression that the father gives that he is well motivated to advance the children’s time with him so that it might be undertaken on an unsupervised basis. Yet at the same time he has demonstrated an inability or unwillingness to engage with the recommendations of [Dr L]. Given his commitment to his children it is likely that, given some time, he will reflect upon the recommendations of [Dr L] and he will act upon those recommendations. Whether he does so is a matter entirely for him. Given his reluctance so far to engage with some of the recommendations from [Dr L], it is impossible to form a view about when and if the father might complete those recommendations. I remain hopeful and optimistic that he will, but just when is impossible to say.
The trial judge was at some pains to emphasise that if, and when, the father followed through with complying with the recommendations of Dr L there would be scope for parenting arrangements to be revisited. The trial judge observed at [30], [31] and [33] of the parenting orders reasons:
30.It will be appreciated that having regard to the findings that have already been made, the only realistic way forward for the father to advance his claims to unsupervised time will be to present further evidence to the Court demonstrating that he has acted upon and perhaps completed the recommendations of [Dr L]. He might also present further evidence, perhaps from [Dr L], about the effect of those actions by him upon the issues identified by [Dr L]. Whether the presentation of that evidence happens in the context of a further hearing in the present proceedings or whether the father presents that evidence in the context of a fresh application by him is not to the point. The point is that he will have to present that further evidence to advance his case for unsupervised time at all.
31.The father will, of course, be confronted with the rule in Rice & Asplund (1979) FLC 90-725. But the presentation of fresh evidence by him dealing with the matters to which I have just referred will, no doubt, overcome the requirements of Rice & Asplund for him to demonstrate that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of the children.
…
33.Having regard to the best interests of these children, in my view the former course is more appropriate rather than the latter. Final orders ought to be made now disposing of all outstanding applications. If it is the case that the father is in a position to re-agitate the matter because he has addressed the matters identified by [Dr L] and is in a position to demonstrate to the Court those things, then a further application by him for the children’s time with him to become unsupervised may well succeed, but having regard to the father’s evidence at the hearing before me in February of this year it is difficult to see how that will happen in the short term.
There is no substance in the complaint concerning the trial judge’s findings with respect to the recommendations of Dr L.
Finding that the father reported to Ms T that “all parenting, psychiatric treatments and anger management undertaken by [him] were … unhelpful”
We repeat that the trial judge made the following finding on this issue as is recorded in the risk reasons at [78] as follows:
78.Counsel for the Independent Children’s Lawyer quite properly pointed out that the father has not done the things that [Dr L] recommended. He has not continued his counselling with his psychologist or any psychologist. He has not sought assistance for the management of depression and anxiety or anger management or his reactions to conflict and loss. He has not sought assistance with a view to resolving his anger with the mother. Indeed, as was pointed out in submissions, whilst the father has done some courses, the parenting orders program and other parenting courses, he told the family report writer that they were of no benefit to him and that he received no assistance from them. They are very concerning matters.
The evidence relevant to this issue includes paragraph 13 of the family report as follows:
13.He did not reply to a question regarding possible current depression but stated that he was not happy. The father was vague regarding the names of courses and individual mental health professionals that he asserted that he was seeing. He stated that he has completed the Circle of Security course in relation to parenting but described all of these activities as being “not useful at all”. He noted that the parenting course simply put a name to natural parenting behaviour. He stated that he is enrolled in a Triple P parenting course to commence in early December.
This should be read with the transcript of the proceedings on 20 February 2017 concerning the father’s cross-examination on this topic. That evidence is as follows:[12]
[12] Transcript 20 February 2017, p.71 line 39 to p.72 line 12.
Now, also [Ms T] says that you told her you had completed the Circle of Security course in relation to parenting?---Yes. That's right.
But you told her that the course was not useful at all?---No. Not really. I didn’t find it very useful.
And - - -?---Well, it’s not – not very useful. I just find it – that I just past that age for them. That I miss it. You know, the circle of trust is more like for – for younger – younger kids. My kids now, they - - -
Do you think you need any help in looking after your children?---In reality, it depend how long I got them for.
Well - - -?---Full-time? Definitely. Yes. I – I – I need help. I – I would never – I don’t think that I could cope. Sincerely, I don’t think that I could cope with having my kids full-time.
Don’t you?---I don’t think so. It’s – it’s – it’s - - -
Was there – when you read the material - - -?---By myself – by myself, no.
Well, how would you manage?---Ask my mum. Ask my family.
(As per original)
The finding of the trial judge is supported by the evidence of what the father told Ms T in relation to the courses he had undertaken at the time of participating in his interview with Ms T on 30 November 2015. That is, that the father “described all of these activities as being ‘not useful at all’” and the father stating that the parenting course, in particular, “simply put a name to natural parenting behaviour”.[13]
[13] At paragraph 13 of the family report.
Whilst the father points out that he undertook the interviews for the family report on 30 November 2015, and completed a further course involving 16 two-hour sessions undertaken between 28 January 2016 and 12 May 2016 (with a completion date of 31 May 2016), the father misconstrues what the trial judge said about Ms T’s evidence. All that the trial judge was doing was summarising what the father himself told Ms T in relation to the courses he had undertaken as at the time of that interview.
Notably, the father having completed the further course referred to as at 31 May 2016, it was not until 18 May 2016 that Dr L undertook her assessment. That is, when Dr L expressed those recommendations earlier referred to, it is clear that Dr L was aware of the father’s engagement with support at the time of her interview. For example, under the “[o]pinion” section of her report, Dr L records:
…[The father] described actively seeking treatment and support for his difficulties. There has been a period of treatment with an anti-depressant and he has engaged and continues in counselling with a psychologist.
We are unable to discern any material error in any of the findings recorded by the trial judge as referred to.
Finding that there was no bruising evident on the child X
The father contends that the trial judge was in error in finding that there was no bruising evident on the child.
We have earlier referred to the content of each of the two police reports that were in evidence before the trial judge. As noted, both of those reports record that the police could find no evidence of the asserted bruising to the child’s legs on either occasion.
It was open to the trial judge to accept the evidence of the mother as contained in her various affidavits on this topic. That evidence was supported by the evidence sourced to the police as noted.
In short, the following findings recorded by the trial judge in the risk reasons were open to be made by the trial judge on the evidence:
51.The evidence before me, however, is to the contrary. Apart from the evidence to which I was taken by counsel for the Independent Children’s Lawyer in submissions that is set out in the mother’s affidavit in reply at paragraph 7(a)(i), (ii) and (iii), there is no other evidence independent of the father that suggests that [X] had any bruising at all to her legs. There have been observations made by people who are independent to these proceedings which reveal that no bruising was apparent. More particularly, the contact centre keeps notes of the visits that occur between the children and the father. The notes for that particular day do not reveal that [X] presented with any bruising, let alone two huge elongated bruises across her right shin.
52.The father caused the New South Wales police to attend at the mother’s home on 6 August at about 8:30pm. The police checked [X’s] legs, but found nothing. They attended again on a second occasion and again found nothing untoward.
53.I am satisfied that the mother did not strike [X] with a broomstick with such force as to break the broomstick and cause two huge elongated bruises across her right shin and a little one on top of her right knee. I am not satisfied by the evidence that the mother struck [X] with a broomstick at all. Whilst I am satisfied that the father observed something on [X] which caused him concern I am satisfied that his hypervigilance about the children’s welfare has led him to conclude that something has occurred at the hands of the mother which has led to the bruising. But I cannot be satisfied that what he reports as having observed on the child [X] was in fact observable by him. There is no evidence other than his own which suggests that the child had any bruising of any significance and, in those circumstances, I reject his case about that.
The father has an associated complaint that the trial judge relied upon affidavit evidence of the mother filed on 17 February 2017 when that evidence was not properly before him. However, this misconstrues the position. Whilst the trial judge initially refused leave to the mother to rely upon any affidavit in reply,[14] at a later point in the proceedings specific paragraphs and an annexure to that affidavit were later admitted into evidence at the conclusion of submissions without objection.[15]
[14] Transcript 20 February 2017, p.3 line 36 to p.4 line 2.
[15] Transcript 21 February 2017, p.109 line 5 to p.110 line 35.
The findings made by the trial judge concerning the bruising issue were not only open to be made but were the only findings open on the evidence as a whole. There is no substance in the father’s complaint.
Finding as to the children’s presentation to the contact centre
The father contends that contrary to the evidence the trial judge found in the risk reasons:
64.I am not satisfied that the mother stalks the father through social media. The evidence does not support that. Nor does the mother, according to the evidence, expose the children to pornographic paintings apparently displayed in common rooms. I am not satisfied that the children are sent to the contact centre in dirty clothes with the children stating that they are the clothes that they slept in, smelling of cat urine and with un-brushed hair…
The evidence concerning the children’s presentation at the contact centre is contained in the exhibits comprising the notes from the contact centre. The notes relevant to this topic are as follows:
a)On 7 January 2017 the contact centre notes record:[16]
[16] Supplementary Appeal Book, p.489, Exhibit 10.
…children’s clothing appeared a little dirty from the days [sic] activities ie some dirt stains and food. The children appeared to have not had a shower today, hair was uncombed and slightly mated [sic] in areas (as it looks after getting out of bed).
b)On 20 August 2016 the contact centre notes record:[17]
When worker went out to bring [X] and [Y] through [X] was brushing her hair with a worn down nail brush. Mother said, she is brushing it with that because she likes the softness. Worker noted that her hair looked uncombed and tanged [sic] at the back.
c)On 30 April 2016 the contact centre notes record:[18]
…When father pulled [Y’s] pants up he looked at the stains and smelt them…
[17] Supplementary Appeal Book, p.493, Exhibit 13.
[18] Supplementary Appeal Book, p.507, Exhibit 13.
Despite the father claiming on 2 April 2016 that one of the child’s shirts “smelt of cat urine”[19] there is no reference in the notes to any staff member of the contact centre recording any opinion or consideration to the effect that the children or their clothes smelled of cat urine at any time over the lengthy period in which supervised time had occurred. At no point is there a record of the children reporting to the contact centre that they were wearing the clothes that they had slept in.
[19] Supplementary Appeal Book, p.506, Exhibit 13.
Thus, there is no evidence to support the assertions by the father save only that the children had uncombed hair on one occasion in January 2017 and X had uncombed hair on another occasion.
To the extent that it could be said that the trial judge’s finding of fact was in error with respect to these isolated (and minor) instances, it can readily be concluded that any such error was not material to the overall outcome of this case given the issues which were of determinative significance. In this respect it is instructive that these minor instances were not even referred to by the father in his submissions.[20]
[20]De Winter and De Winter (1979) FLC 90-605.
There is thus no substance in the father’s complaint.
Challenges regarding domestic violence proceedings
Reference has already been made to the father’s attempt to adduce further evidence on appeal with respect to local domestic violence proceedings.
The father contends that the trial judge erred in:
a)Failing to take account of relevant matters, namely that an application for a domestic violence order supported largely by the same allegations as made by the mother in these proceedings had been dismissed by a Magistrate;[21] and
b)Making findings contrary to those made earlier by a Magistrate when dismissing an application for a domestic violence order.[22]
[21] Notice of Appeal at paragraph 13; father’s Summary of Argument at paragraphs 38–40.
[22] Notice of Appeal at paragraphs 4–5.
It is not in issue that on 12 December 2015 a police officer made an application for an Apprehended Domestic Violence Order on behalf of the mother. Nor is it in issue that the mother gave some evidence about those proceedings.
Following a hearing in the local court, the police application was dismissed by the Magistrate.
As earlier referred to, the father seeks to invest the dismissal of the police application with determinative significance as regards issues of domestic violence in these proceedings and contends that the trial judge was in error in failing to so do.
With all due respect to the father, this would be to elevate local domestic violence proceedings, as between the police and the father, as if it created an issue estoppel with respect to family violence in parenting proceedings pursuant to the Act. That proposition is misconceived and has been held to be misconceived.[23]
[23] See Schorel and Schorel (1990) FLC 92-144; B & J [2009] FamCAFC 103.
Plainly enough the issues for determination in parenting proceedings as between the mother and the father in this case are separate and distinct from issues for determination in domestic violence proceedings brought by the police against the father pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
As has already been referred to, the trial judge carefully considered the evidence concerning issues of family or domestic violence and the issues of risk concerning the children. Plainly, the requirement to consider each factor under s 60CC of the Act does not mean that each factor must be separately discussed, especially where the evidence leads inextricably to a particular conclusion.[24] Nothing turns upon the feature that the trial judge did not make specific reference in either the risk reasons or the parenting orders reasons to the dismissal of the police application by a local Magistrate.
[24] See Banks & Banks (2015) FLC 93-637; SCVG & KLD (2014) FLC 93-582.
There is therefore no substance in this complaint.
The complaint that the trial judge failed to take account of relevant matters
The father contends that the trial judge failed to take into account the evidence of Ms M, a counsellor.
The father contends that Ms M produced a report which he contended was unfavourable to the mother, and he raises some questions as to the availability or “concealment” of records produced by Ms M under subpoena.
The fact is that no such report of Ms M was adduced into evidence in the proceedings. Simply put, there was no evidence before the learned trial judge sourced to Ms M. The extent of the evidence before the Court related to Ms M is limited to that referred to during the father’s cross-examination by counsel for the mother.[25]
[25] Transcript 20 February 2017, p.48 lines 16–24.
In circumstances where the father did not seek to adduce any evidence from Ms M, nor did he seek an adjournment to enable him to obtain evidence from Ms M, it cannot be said that the trial judge was somehow in error in failing to take into account evidence sourced to Ms M.
The father further contends that the learned trial judge erred by failing to take into account that the father had undertaken various parenting courses.
In particular, the father refers to courses undertaken by him subsequent to his participation in the interviews with Ms T on 30 November 2015.
For example, the father refers to the Parenting Orders Post-Separation Cooperative Parenting Program in which he participated and completed in April 2016 and a “Responsible Men” program which he completed on 12 May 2016.
However, the father was cross-examined in relation to his completion or alleged completion of parenting courses and about his failure to produce certificates of completion, and his evidence was to the effect that he “didn’t think that they were that important”.[26]
[26] Transcript 20 February 2017, p.63 line 46 to p.64 line 29.
Reference has already been made to the recommendations of Dr L which assumed determinative significance in the outcome arrived at by the trial judge. Importantly, Dr L interviewed the father after, or largely after, he had completed further courses. Her recommendations were formulated at the time of her report, and as already referred to, the father failed to demonstrate compliance with Dr L’s recommendations which, in turn, informed the conclusions reached by the trial judge as regards parenting orders.
We therefore fail to see any substance in these complaints.
The trial judge’s refusal to accept the evidence of Ms P
The trial judge did not accept Ms P to be a credible witness.
The father contends that the trial judge erred in disregarding the evidence of his witness, Ms P, on the basis of the adverse credit findings his Honour made at [70] of the risk reasons.
The father further contends that the trial judge erred in accepting the evidence of the mother and the maternal grandmother in relation to an incident in which Ms P claims to have been threatened by the mother in front of a third party, Ms H (at [69] and [71] of the risk reasons).
In his risk reasons at [70] the trial judge determined that this witness failed to be frank and forthright when questioned in relation to her address by the trial judge. The trial judge’s finding in rejecting Ms P’s evidence was consistent with the invitation to do so by counsel for the ICL.[27]
[27] Transcript 21 February 2017, p.101 lines 42–47.
The finding of the trial judge in relation to Ms P’s credibility was open to him. It cannot be said that the trial judge “palpably misused” his advantage in making an adverse credit finding after having had the opportunity to observe the witness directly.[28]
[28] Mims & Green and Green (2008) FLC 93-359 at 82,356 citing with approval Abalos v Australian Postal Commission (1990) 171 CLR 167.
We accept the submission on behalf of the mother that the evidence of Ms P was “really irrelevant”, as was submitted by counsel for the ICL at trial, to the determination of whether either of the parents posed an unacceptable risk of harm to the children. We also accept the submission that the trial judge did not rely upon, and did not need to rely upon, the evidence of the mother or of the maternal grandmother when discounting the evidence given by Ms P.
We therefore reject the complaint that the trial judge was somehow in error in dealing with Ms P as a witness or in relation to her credibility.
We also reject the associated complaint that questions posed by counsel for the mother during cross-examination, relevant to the father’s relationship with Ms P, were improper.
The father took no objection at trial to this line of questioning. We fail to see how the trial judge allowing this line of questioning demonstrates any error on the part of the trial judge. It was plainly relevant to know the position concerning any independence from the father of Ms P in circumstances where she was called as a witness adverse to the mother.
We accept that the father’s objection in the appeal proceedings to the line of questioning reflects a misunderstanding on his part that the statements about which he was cross-examined at trial came from material subpoenaed at trial concerning his mental health. When reference is made to the transcript of the trial and the cross-examination in this context, it is clear that what the father was being cross-examined about was a statement he made to Dr L, rather than to any statement recorded in any subpoenaed material.
We find no substance in any complaints of the father concerning Ms P, her evidence or findings concerning her lack of credibility.
Complaints of misuse of position as trial judge
The father contends that the trial judge permitted excessive cross-examination of the father at trial, and that he misused his position by permitting counsel for the mother to cross-examine the father in relation to a sexual relationship that the father had with Ms P. The father also complains that the trial judge engaged in “familiar” exchanges with the ICL.
Having reviewed the transcript of the proceedings we find the criticism of the duration of the father’s cross-examination to be misplaced. We note that at no time during the cross-examination did the father seek an adjournment or a temporary break from the witness box, nor did the father indicate having any difficulty in proceeding to completion of his cross-examination.
Review of the transcript reveals that the total time of cross-examination of the father by both counsel for the mother and the ICL totalled two hours and 18 minutes.
Review of the transcript reveals that the father did not raise at trial any issue at all in relation to the length or impact of the cross-examination of him being undertaken, whether due to his now asserted “anxiety, depression and adjustment disorder”, or his having “not slept for days”, or the “long distance travelling” to Court, or for any other reason.[29]
[29] Notice of Appeal at paragraph 7.
The canvassing of matters such as the father’s tiredness and depression occurred only during cross-examination by counsel for the ICL and in the course of closing submissions by counsel for the mother. However, we fail to see from our review of the transcript how it can be said that the trial judge misused his position by allowing any prolonged cross-examination of the father or in the nature of questioning permitted.
We find no merit in these complaints.
In relation to the asserted “familiarity” between the trial judge and the ICL, or counsel for the ICL, the father fails to specify or identify any remark which suggests any untoward familiarity between counsel for the ICL and the trial judge.
To the extent that the complaint is based upon submissions made by counsel for the ICL about Dr L’s report, it is clear from both the risk reasons and the parenting orders reasons that the learned trial judge had regard to Dr L’s expert evidence.
Dr L’s report formed an important, perhaps crucial, part of the evidence before the trial judge and it was thus legitimate for the trial judge to pay close attention to this evidence.
It cannot be said that by reason of the trial judge having regard to a crucially important piece of evidence referred to by counsel for the ICL, that somehow the trial judge was unfairly influenced by the submissions of counsel for the ICL with respect to Dr L’s report.
We find no substance in this complaint.
The assertion of bias
The father complains that the trial judge did not bring a fair and impartial mind to the determination of whether either parent posed an unacceptable risk of harm to the children.[30]
[30] Father’s Summary of Argument at paragraphs 91–97.
The essence of the father’s contention is that when regard is had to comments made by the trial judge during an appearance on 17 October 2016:[31]
…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnote omitted)
[31]Johnson v Johnson (2000) 201 CLR 488 at [11].
The father did not at any time raise the issue of bias before the trial judge or seek that the trial judge disqualify himself. It is well settled that a party who can be taken to have waived the right to object at trial ought not be permitted to agitate an issue of bias for the first time on appeal, when nothing was raised at trial.[32] However, it is not necessary for us to determine whether or not the father waived at trial a right to object because, for the reasons which follow, his contention of bias has no substance.
[32] See Vakauta v Kelly (1989) 167 CLR 568.
The father contends that the trial judge somehow limited the issues of risk to be considered to the risk posed by the father in circumstances where the father had made a serious allegation that the mother had hit one of the children with a broomstick. The father contends that such limitation gives rise to an apprehension that the trial judge had pre-determined issues concerning his allegations against the mother.
As has readily been demonstrated in our discussion of the risk reasons and the parenting orders reasons, it is clear that the trial judge gave careful consideration to the evidence concerning the father’s allegations as to one of the children being hit by the mother with a broomstick. In short, it cannot be said that the trial judge did not appropriately engage with the case advanced by the father in respect to the matters the father said gave rise to an unacceptable risk of harm to the children in the mother’s household. Quite apart from the issue concerning the use of the broomstick, is the trial judge’s consideration of the various allegations agitated by the father against the mother, as earlier discussed.
The father asserts that the trial judge discriminated against him because of his gender. To support this allegation, the father points to [32] of the risk reasons which state:
At the [Region D] Hospital he told a social worker there that if his children were not there he would have killed the mother. His claim, though, was that he had been bullied by her and it had been her bullying – including physical assaults and the withholding of sex – that determined, in his mind, that he had had enough. To use his words, he “exploded”.
The father asserts that the use of the term “bullied” is evidence of discrimination on the part of the trial judge as he contends that if the mother had given that evidence, it would have been referred to as “domestic violence”.
However, the trial judge’s reference to this appears to come directly from Exhibit 3 which records the father’s visit to Region D Hospital on 4 December 2013. During cross-examination, the following passage from this document was read to the father by counsel for the mother:[33]
[33] Transcript 20 February 2017, p.38 line 42 to p.39 line 13.
[COUNSEL FOR THE MOTHER]: Can you read the last three lines of that document?---No, not really. Can you read them for me, please?
Continuing:
Thought content clear and intent. If my kids weren’t there I would have killed her. I’m done with being bullied.
See that continued over the page, the last two words?---Yes.
You would agree that that is a record of the [Region D] Hospital, dated 4 December 2013?---Yes. If that’s what they wrote, that’s probably what I say.
That’s probably what you said?---Most likely, yes.
Your Honour, I tender that document?---I don’t – they have no reason to lie.
HIS HONOUR: Exhibit 3.
The father points to no other examples to support his assertion that he was discriminated against.
There is no substance to the complaints concerning bias.
Conclusion and orders
There being no substance in any of the father’s complaints agitated on the appeal, the appeal must be dismissed.
In the event the appeal was to be dismissed, counsel for the mother sought no order for costs on behalf of the mother in circumstances where the mother is funded by Legal Aid.
We will therefore order that the appeal be dismissed and that there be no order as to costs.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Hogan JJ) delivered on 26 April 2019.
Associate:
Date: 26 April 2019
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