ROWELL & KEOGH - [2011] FamCAFC 74

FAMILY COURT OF AUSTRALIA

ROWELL & KEOGH

[2011] FamCAFC 74

FAMILY LAW - APPEAL – ADJOURNMENT – Where the father claims that he was denied procedural fairness by the Federal Magistrate’s refusal to grant an adjournment on the first day of the hearing – Where the father was seeking to review the decision of Legal Aid NSW refusing him aid – Where the Federal Magistrate regarded herself as bound by s 57 of the Legal Aid Commission Act 1979 (NSW) and where she also considered whether otherwise an adjournment should be granted – Where the Federal Magistrate was concerned that should the matter be adjourned the position may be no different on the next occasion - Where the father submitted that an adjournment should have been granted, as there were no special circumstances that prevented the Federal Magistrate from not granting an adjournment – Where it was argued there was nothing in the Family Law Act 1975 (Cth) that otherwise provided, as required by s 79 of the Judiciary Act 1903 (Cth) – Where the principles in s 69ZN of the Family Law Act 1975 (Cth) do not by themselves create or confer separate rights or entitlements –Where it was submitted that the Federal Magistrate failed to consider the impact on the relationship between the child and the father – Where in most cases where one party has appealed from a Legal Aid decision in relation to obtaining aid for legal representation, an adjournment should be given – Where in this case it was known that legal aid was refused on a merits basis and where this was a proper fact for the Federal Magistrate to take into account – Where the Federal Magistrate was correct in not granting an adjournment – Where a new trial would inevitably result in the same orders being made and given the significant implications on the child and the mother of a re-hearing, the process would be detrimental and futile.

FAMILY LAW - APPEAL – CHILDREN – Whether orders should be made providing for the child to have time with the father – Where the trial judge ordered the mother have sole parental responsibility for child and that there be no contact between the father and the child – Where the decision was consistent with the recommendations of the expert report.

FAMILY LAW - APPEAL – CHILDREN – Where the other grounds of appeal concern a challenge to the Federal Magistrate’s discretion – Where there is no substance in those grounds – No error of law or fact demonstrated and where errors of weight to be given to the evidence were asserted – Where the evidence supported the orders made by the Federal Magistrate as being in the child’s best interests – Appeal dismissed.

FAMILY LAW - COSTS – Orders made providing for written submissions.

Family Law Act 1975 (Cth) s 69ZN
Judiciary Act 1903 (Cth) s 79
Legal Aid Commission Act 1979 (NSW) s 57

A v J (1995) FLC 92-619
Bourke and Another v Beneficial Finance Corporation Ltd (1993) 124 ALR 716
British American Tobacco Australia Services Ltd v Laurie (as administratrix of the estate of Laurie and on her own behalf) and Others (2011) 273 ALR 429
CDJ v VAJ (1998) 197 CLR 172
Director-General of the Department of Human Services (NSW) & Tran and Anor [2010] FamCAFC 151
Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2002) ALR 138
Friends of the Glenreagh Dorrigo Line Incorporated and Ors v Jones and Ors [1994] NSWCA 101
Gronow v Gronow (1979) 144 CLR 513
House v King (1936) 55 CLR 499
Lewis & Spencer [2007] NSWSC 1383
Norbis v Norbis (1986) 161 CLR 513
Northern Territory v GPAO and Others [1999] 196 CLR 553
P v P (1994) 181 CLR 583
Stead v State Government Insurance Commission (1986) 161 CLR 141
VJ v CJ (1997) FLC 92-772
Wilson v Alexander (2003) 135 FCR 273

APPELLANT:

Mr Rowell

RESPONDENT:

Ms Keogh

INDEPENDENT CHILDREN’S LAWYER:

Redleaf Family Lawyers

FILE NUMBER:

SYC

447

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

4 April 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May &
Ainslie-Wallace JJ

HEARING DATE:

12 November 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 May 2009

LOWER COURT MNC:

[2009] FMCAfam 395

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Goodchild

COUNSEL FOR THE RESPONDENT:

Ms Rees SC

SOLICITOR FOR THE RESPONDENT:

A W M Dickinson & Son

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Redleaf Family Lawyers

Orders

The appeal be dismissed.
The respondent mother and the Independent Children’s Lawyer are at liberty to file written submissions with regard to the costs of the appeal, in accordance with the following timetable:
(a)On behalf of the respondent mother within 21 days of the date of this order;
(b)On behalf of the Independent Children’s Lawyer 14 days after receipt of the respondent mother’s submissions;
(c)On behalf of the appellant father in reply thereto within 21 days after receipt of the Independent Children’s Lawyers submissions, and;
(d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other parties.

IT IS NOTED that publication of this judgment under the pseudonym Rowell & Keogh is approved 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 69 of 2009
File Number: SYC 447 of 2008

Mr Rowell

Appellant

And

Ms Keogh

Respondent

REASONS FOR JUDGMENT

Introduction

This appeal by the father concerns parenting orders made by Federal Magistrate Orchiston on 1 May 2009. The orders have very serious ramifications for a boy born in August 2007 and the father. The orders provided that the mother have sole parental responsibility for the child; that the child live with the mother; and that there be no contact between the father and the child, save and except that the father and his family be at liberty to send cards and gifts to the child on the child’s birthday and at Christmas.
The father asks that the decision of the Federal Magistrate be set aside and that the matter be remitted for re-hearing.
In the amended notice of appeal filed 21 August 2009 there are five grounds of appeal. One of the grounds is that the father was denied procedural fairness by the Federal Magistrate, when she refused to allow an adjournment on the first day of the hearing. As emerged from the oral submissions on behalf of the father, that refusal is central to the appeal.

Background

On 15 September 2010 the appeal was listed before the Full Court comprising Coleman, May & Murphy JJ. The father applied for an adjournment of the appeal. The application was allowed and the hearing of the appeal was adjourned to 12 November 2010. Ex tempore reasons were provided and written reasons for judgment were published on 27 October 2010.
The adjournment was granted for a range of reasons, including that the reasons for judgment and the transcript of the proceedings of 2 February 2009, documents necessary for the father to argue his appeal, were only received on the morning the appeal was to be heard.
Orders were made allowing the father to file and serve all material upon which he intended to rely by 20 October 2010, and similarly the mother and the Independent Children’s Lawyer were given until 4 November 2010 to file and serve any additional material on which they intend to rely on.
The father has not filed additional material.

Grounds of appeal

The father relies on five grounds of appeal. They are that:
1.The Magistrate erred in failing to afford procedural fairness to the father by refusing to grant an adjournment to the father on the first day of the hearing. In the circumstances this constituted a miscarriage of justice.
…
2.The decision of the learned Magistrate is vitiated by apprehended bias.
…
3.The Magistrate erred by failing to give sufficient weight to the facts and circumstances that:
a. [Dr W] was retained and paid for by the mother;
b.The evidence of [Dr W] was not subject to cross-examination by a legal representative on behalf of the father;
c.[Dr W’s] opinion that there should be no contact between the father and the child was an extreme one;
d.[Dr W] spent a total of four hours with the father;
e.The fact that the father was not legally represented in the proceedings.
…
4.The Magistrate erred by giving too much weight to the fact that the mother’s “fragility of personality” would be adversely affected by “any kind of involvement with the father”.
…
5.The Magistrate erred in giving insufficient weight to:
a.Characteristics of the father that will be beneficial to the child;
b.The father’s commitment to attendance at the supervised contact visits;
c.[Dr W’s] observations regarding the Mother’s history of severe depression and mental instability (break downs, attempted suicide, bulima [sic], difficulties in the relationship with her own mother, childhood abuse, historinic [sic] behaviour)
d.The importance of the child developing a relationship with his biological father in circumstances where the mother suffers from serious mental health issues;
e.[Dr W’s] assertions that there will in fact be negative effects on the child if prevented from having a relationship with his Father.
f.The child’s Lawyer’s concerns regarding the mother’s behaviour prior to the birth of the child (the mother continued to see the Father despite her allegations that she fled to Sydney from Melbourne because she was fearful of him).

Ground 1- Refusal to grant an adjournment

Although not conceded, it became apparent during the argument that this ground was the primary argument in this appeal.
At the commencement of the hearing before the Federal Magistrate on 2 February 2009 the father applied for an adjournment, as he had applied for legal aid and it had been refused.
A separate judgment was delivered by the Federal Magistrate on that day refusing the application.
Appreciating that the father intended to seek a review of the decision of Legal Aid NSW refusing him aid, the trial judge correctly referred to the Legal Aid Commission Act 1979 (NSW) (“the State Act”) in particular s 57(c). Section 57 provides:
57 Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it:
(a)that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b)that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c)that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
The Federal Magistrate determined that she should be concerned with s 57(c), whether there were “special circumstances” which prevented the adjournment.
The father’s previous lawyers had completed the preparation for the case, in particular, affidavits of the father were filed. However, the father only had notice on 20 January 2009, a few days prior to the hearing, that he would not be represented. He was in custody.
It seems that it was the history of the matter together with the consequences of an adjournment, especially for the mother, which compelled the Federal Magistrate to refuse an adjournment.
The Federal Magistrate recorded that it was the father who filed the initial application on 29 January 2008. At the time the matter was first listed for hearing the parties were apparently ready to proceed. The matter was adjourned on that occasion upon the receipt of the report from Dr W, a psychiatrist. It became apparent that an Independent Children’s Lawyer should be appointed.
The reasons the Federal Magistrate refused the adjournment by reference to the concept of “special circumstances” were as follows:
1)     Dr W was available to give evidence, as he was on the previous occasion;
2)     Other witnesses were available and might be inconvenienced;
3)     The availability of the Federal Magistrate to hear the matter. The Federal Magistrate thought she would next be available in August, some six months later. This it was thought, would necessitate the update of affidavits, including the report of Dr W;
4)     The application for legal aid was refused on a merits basis;
5)     The mother was privately funded for the trial and an adjournment would increase her costs. The father was not financially able to meet an order for the costs of the adjournment;
6)     The father had delayed in bringing an application for an adjournment.
The Federal Magistrate was clearly aware that the father was unrepresented and the difficulties this created for him. Reference was made to a forthcoming trial, being the reason for the father’s incarceration, the charges alleged breaches of domestic violence orders. We are informed that the father was subsequently acquitted of those charges.
After discussing those matters to which we have referred the Federal Magistrate said:
I consider that there are therefore very special circumstances in this case which would mean that the Court could be satisfied under s.57 that the Court has not got a mandatory position where it must grant the adjournment.
Her Honour continued:
So taking all those matters into account, I consider that there are special circumstances in this case upon which an adjournment of these proceedings pending the outcome of the Legal Aid Review should be made. For those reasons I therefore dismiss the application for adjournment under s. 57 of the Legal Aid Commission Act.
Although the Federal Magistrate regarded herself bound by s 57, she also considered whether otherwise an adjournment should be granted. The Federal Magistrate referred to the discretion to order an adjournment. She was understandably concerned that should the matter be adjourned the position may be no different on the next occasion. At paragraph 22 of her reasons the Federal Magistrate said:
… The best interests of the child must also be looked at, not as an exclusive matter but also important, and again looking at page 44 of [Dr W’s] comments, in particular the last two paragraphs therein, and the stress on the mother and the impact that that could have on the child …, I consider that it would also be in the best interests of the child for this matter to proceed today and in the next two days to have some finality to it. On that basis I exercise my discretion to not grant the adjournment that is sought by the applicant father in this matter. The matter will proceed.

The Father’s submissions

On 1 February 2010 the first written submissions were filed on behalf of the father. In those submissions a number of very concerning matters were asserted (see submissions paras 12-25). We have not been referred to any evidence before the Federal Magistrate or in this court that provides factual underpinning of these submissions. Out of concern that the submissions may have some basis we have examined the record carefully. Apart from the submissions to which we have referred made by the father to the Federal Magistrate asking for the adjournment, there was no reference to these matters.
Counsel who appeared at the appeal hearing for the father prepared an oral argument in the short period available to her. Recognising that the issues raised by this ground have both serious consequences for the father and generally on the issue of how the Federal Magistrates Court (and the Family Court) should deal with applications for an adjournment in light of the provisions of s 57 of the State Act, we adjourned the hearing of the appeal to allow further written submissions from each party.
Written submissions have been filed on behalf of both the father and the mother.
Counsel for the father submits that by operation of s 79 of the Judiciary Act 1903 (Cth) her Honour was required to consider and apply s 57 of the State Act to her determination of the adjournment application. It is said that the adjournment should have been granted as there were no “special circumstances that (prevented her) from doing so”. (original emphasis)
Counsel asserts that although the trial judge correctly considered s 57 of the State Act, her Honour erred in her application of the section. Particularly, it is said, in her Honour’s finding that there were “special circumstances” which prevented the grant of an adjournment.
Reference is made in the father’s written submissions to the Second Reading Speech on 19 April 1979, which introduced the Legal Aid Commission Act 1979 (NSW). The Attorney General and Minister for Justice said:
The policy of the Government is that an adequate legal aid system is a social essential. It is pointless to have legal rights if one cannot afford to pursue them in the courts. Without extensive legal aid justice becomes the prerogative of a privileged minority, and the processes of the law become a weapon that the rich can use against the poor with impunity. Both the judicial system and the legal profession suffer from the lack of public confidence that results.
Counsel for the father submits that the language of s 57 of the State Act is mandatory (see Friends of the Glenreagh Dorrigo Line Incorporated and Ors v Jones and Ors [1994] NSWCA 101). The purpose of the section was considered by Rothman J in Lewis v Spencer [2007] NSWSC 1383:
It is a purpose complementary to the achievement of justice for persons who otherwise are unable to afford private legal representation. It ensures, so far as practicable, that persons without the means to be represented are not tried and convicted in the absence of representation, when there is a possibility that, after their application for legal aid has been dealt with, they will be properly represented. The representation of parties in proceedings aids not only the parties themselves, but the administration of justice itself.
At paragraph 18 of the written submissions it is submitted:
The right to proper representation is no less necessary in a case involving a child faced with the severance of any meaningful relationship with his father and a parent faced with the prospect of the complete severance of any meaningful relationship with his child. That such determinations should be the last resort in the consideration of parenting matters is judicial recognition of the seriousness of the matter the subject of the Appellant’s application for adjournment. (footnote omitted)
It is said that her Honour was bound to apply the provisions of s 57 of the State Act by operation of s 79 of the Judiciary Act 1903 (Cth). This section relevantly provides:
State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
…
Although the meaning of “court or tribunal” in s 57 of the State Act is undefined, there is no exception within the Act that restricts its application to State courts. Rather, it is said, the operation of the section in federal court matters “turns on the notion of applicability” (original emphasis).
Consequently it is submitted that although a New South Wales Act, the provisions contained in the State Act are “expected” to be applied to proceedings in the Federal Magistrates Court. It follows that by operation of s 79 of the Judiciary Act 1903 (Cth), s 57 of the State Act applies to the Federal Magistrates Court, “except if provision was otherwise made by another law of the Commonwealth”.

Illustrative of the application of these two sections is the decision of the Full Court of the Federal Court in Wilson v Alexander (2003) 135 FCR 273 where it was held that the trial judge had erred in failing to assess an adjournment application on the basis that s 57 applied.
In reply to the submission made on behalf of the mother that the Family Law Act 1975 (Cth) reduces the ambit of the State Act to an extent “irreconcilable with that law”, referring to Northern Territory v GPAO and Others [1999] 196 CLR 553, counsel for the father submits that the Family Law Act 1975 (Cth) does not “otherwise provide” inconsistently with s 57 of the State Act.
It is also submitted that the operation of the Family Law Act 1975 (Cth) does not reduce the “ambit” of s 57 of the State Act such that the Family Law Act 1975 (Cth) is irreconcilable with the Legal Commission Act 1979 (NSW).
Further:
35.The FL Act, Rules and Regulations contain no explicit provision with respect to the principles governing the adjournment of proceedings, or, specifically, the principles governing them in the circumstances of an appeal or an intention to appeal a refusal of a grant of legal aid.
36. The Family Courts inherent jurisdiction with respect to the exercise of power incidental to its judicial functions has no role to play in an application of section 57 LAC Act consequent upon section 79 of the Judiciary Act.
37.The High Court Act and Rules to the extent they may be applicable pursuant to section 38(2) of the FL Act contain no express provision with respect to adjournment of proceedings, nor any specific reference to considerations of legal aid. (footnote omitted)
On behalf of the father it is submitted that “[t]here is nothing in Division 12A of the FL Act which would otherwise provide as required by section 79 of the Judiciary Act 1903 (Cth).”
In considering s 69ZN of the Family Law Act 1975 (Cth) which provides:
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
It was argued on behalf of the father that “[t]hese ‘principles’ inform the exercise of the courts powers but do not by themselves, create or confer any separate rights or entitlements”. This submission must be correct. It is of interest to consider the words after section (1) in relation to failure to give effect to the principles.
We refer further to the written submissions:
43.While the principles for conducting child-related proceedings are specified, the precise manner in which the proceedings are to be conducted does not appear specifically in the legislation itself. That is governed by Chapter 16A of the Rules and the Practice Direction. Part 16A.2 relates to trials of certain cases to which Division 12A of Part VII of the Act applies.
44.Division 12A of the FL Act and Chapter 16A of the Rules and the Practice Direction make no provision governing the adjournment of proceedings and make no provision for the adjournment of proceedings in circumstances where there is an appeal or an intention to appeal a refusal of a grant of legal aid.
45.The aim and purpose of Division 12A is related to the conduct of ‘child-related proceedings’. It could not be said that the operation of that division was intended as a code with respect to child related proceedings, such that s.57 of the LAC Act , which respect to adjournment of proceedings, would be wholly displaced. (footnote omitted) (original emphasis)
Counsel for the father submits that s 57 of the State Act requires as a prerequisite to a refusal to grant an adjournment “that considerations which would otherwise inform a decision to adjourn proceedings, be of greater magnitude or have an extra dimension sufficient to defeat the ability of the Appellant to “pursue” his “legal rights” and ensure “public confidence” in the outcome”. (original emphasis)
It is explained that “special circumstances”, as used in other statutes, typically reflects a requirement of a distinguishable feature (see Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2002) ALR 138). Thus “it is only in compelling circumstances or circumstances beyond the ordinary case that the statutory right to an adjournment under the Act be subjugated to ‘special circumstance’”. (original emphasis)
Counsel submits that there was nothing “special” about the circumstances in this case, “either individually or in combination to which her Honour referred in determining the issue”. It was said the matters considered by the trial judge are factors which “either individually or in some combination attend most contested adjournments”. In this regard it is argued that her Honour erred.
Paragraph 56 of the father’s written submissions directly referred to the reasons of the Federal Magistrate:
Her Honour commenced at paragraph 11 of her reasons to correctly observe that the “court does not specifically under s.57(c) need to balance” [sic]. Notwithstanding that direction to herself, however, that is what her Honour did. Illustratively at paragraphs 12 and 13. At paragraph 12 her Honour said “So the availability of witnesses and in this case also an expert witness must also be put in the balance”. At paragraph 13 her Honour stated “balance in (sic) the fact that the applicant had not put before the court exactly why Legal Aid was refused”. (original emphasis)
It is submitted that it was the role of the trial judge to establish whether the facts and circumstances of the case were of such a “special” nature to displace the obligation to adjourn the proceedings, not for her Honour “to satisfy herself of the reasons why the proceedings should not be adjourned”.
We agree with this submission as it appears to be the clear intent of the section.
Counsel also asserts that the trial judge was in error in being influenced by the fact that the father was not able to put before the court reasons why his legal aid was refused. This is said to be due to the imposition on the father of “an obligation to demonstrate some prima facie error in the determination to withdraw legal aid”. It is said to be not for the applicant to disprove the existence of special circumstances.
In conclusion it is urged upon us that “[t]he judgement discloses that her Honour failed to consider or adequately consider the profound impact on the relationship of the child and his father of the orders sought by the mother and the grave and serious consequences of the proceedings. The effect of the orders sought by the mother was a complete and absolute severing of any meaningful relationship this father may have with his little child”.
In this respect, we note that the evidence before the Federal Magistrate when she considered the adjournment was that of the father and mother and that of Dr W. Although the decision was made prior to hearing further evidence, providing her reasons and orders the Federal Magistrate did have the report of Dr W, part of which is repeated in this judgment (see paragraphs 94, 98, 114).

The Mother’s submissions

Senior counsel for the mother submits that it is not in dispute that s 57 of the State Act applies to proceedings in federal courts.
It is posed by counsel that the relevant outstanding questions, in summary are:
·Whether s 57 of the State Act is inconsistent with any provision of the Family Law Act 1975 (Cth), and;
·Whether any provision of the Family Law Act 1975 (Cth) is a law which “otherwise provides” for such applications.
In considering the issues, counsel for the mother argued that the Court must consider whether any provision of the Family Law Act 1975 (Cth) deals with an application for adjournment in children’s matters.
In responding to this question it is said that the principles contained in s 69ZN of the Family Law Act 1975 (Cth) are of some significance. We have already referred to s 69ZN(1). The principles are listed as follows:
Principles for conducting child-related proceedings
…
69ZN(2) [Principles in interpreting this Division] Regard is to be had to the principles in interpreting this Division.
69ZN(3) Principle 1                   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.
69ZN(4) Principle 2                   The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
69ZN(5) Principle 3   The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child   abuse and child neglect; and
(b) the parties to the proceedings against family violence.
69ZN(6) Principle 4                    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.
69ZN(7) Principle 5  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.
It is submitted that s 69ZN(1)(b) makes applicable the principles contained in s 69ZN to applications of a procedural nature made in child-related proceedings.
The written submissions contain extracts from the Explanatory Memorandum, which is said to establish that “the Parliament intended that the court must give effect to the principles in section 69ZN in exercising its powers in child-related proceedings”.
It is submitted the trial judge gave weight to those factors emphasised in their submissions.
In our view it would be appropriate for a trial judge to have regard to such “principles” as part of a consideration whether there are special circumstances that prevent the court from ordering an adjournment. However, those considerations could not be conclusive.
We do not accept the argument that s 69ZN “otherwise provides” within the meaning of s 79 of the Judiciary Act 1903 (Cth).
Counsel for the mother submits:
In the present case, it is submitted that the operation of section 69ZN so reduces the ambit of section 57 of the Legal Aid Commission Act (NSW) that the provisions are irreconcilable and the provisions of section 69ZN prevail.
It is submitted that it is not necessary for the Family Law Act 1975 (Cth) to contain an explicit provision with respect to the principles governing the adjournment of proceedings for the purpose of pursuing an appeal against the refusal to grant legal aid, as the all inclusive s 69ZN provision governs the conduct of proceedings concerning children.
In support of this submission reference is made to Director-General of the Department of Human Services (NSW) & Tran and Anor [2010] FamCAFC 151 where at paragraph 244 Boland J set out the following passage from the decision of the plurality (Mason CJ, Deane, Toohey and Gaudron JJ) in P v P (1994) 181 CLR 583:
… If, in such a case, the terms and operation of the Commonwealth law disclose a legislative intent to cover the relevant field, s. 109 of the Constitution will apply to render invalid the State or Territory law to the extent that it intrudes within the area validly occupied by the Commonwealth law. If the terms and operation of the Commonwealth law disclose no such legislative intent, the existence and extent of inconsistency between the Commonwealth and the State or Territory laws will depend upon the terms and operation of each. Commonly, when that is so, the State or Territory law will be inconsistent with the Commonwealth law and invalid pursuant to s 109 of the Constitution to, but only to, the extent that it would ‘alter, impair or detract from’ the Commonwealth law’s conferral of jurisdiction by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction. …
It is the mother’s primary submission that s 69ZN of the Act is intended to “cover the field of all procedural matters in child related proceedings”. In the alternative, it is argued that s 57 of the State Act can be read as to not “alter, impair or detract from” the application of s 69ZN of the Family Law Act 1975 (Cth) in the determination of “special circumstances” under the State Act.
As will be explained we do not accept the submissions made on behalf of the mother in this respect. The terms of s 69ZN do not reveal an intent on behalf of the laws of the Commonwealth to cover the field.
In relation to a different issue, counsel for the mother submits “[w]hat constitutes “special circumstances” would seem to depend on the particular proceedings”. Reference is made to The Friends of the Glenreagh Line Incorporated and Ors v Jones and Ors [1994] NSWCA 101, where Mahoney JA said:
It is, in my opinion, not necessary in every case that a judge who determines that no adjournment should be given must make a finding in terms that there are no special circumstances within paragraph (c). Such a finding may be clear by inference from what he has said and done. Were the matter left to speculation, I would be inclined to think that His Honour saw the progress, or lack of progress, of the proceeding to be such as to constitute circumstances sufficient to constitute special circumstances warranting the order made ...
Reference was also made to the conclusion of the Full Court of the Federal Court judgment in Bourke and Another v Beneficial Finance Corporation Ltd (1993) 124 ALR 716, where it was said:
71.We have not found it necessary to decide the question because, in our opinion, it will usually be appropriate, as a matter of discretion, for this court, in considering whether or not to grant an adjournment of a particular matter, to apply the provisions of the section, where it is otherwise applicable, to the circumstances of the case in question. Plainly, Morling J did take that course because he addressed the question whether there were “special circumstances”, the phrase used in s 57(c). But he said that the history of the litigation and the other matters to which he had referred constituted special circumstances that would make it wrong to adjourn the proceedings. The appellants were thus treated as if the section were of direct application.
72.The question whether there were “special circumstances” involves the exercise of the court's discretion. An appellate court will only interfere with the exercise of a discretionary decision where the court at first instance has acted upon a wrong principle of law, has acted upon extraneous or irrelevant considerations, has made a mistake of fact, has failed to take into account a material consideration, or the decision in question is manifestly wrong or unjust.
73.In the present case, the only complaint which appears to be made is that his Honour failed to take into account the fact that the determination of the Legal Aid Review Committee was imminent. We do not consider this ground is made out. In dealing with this aspect, his Honour focused attention on the failure of the appellants to explain why there had been a delay in the prosecution of the appeals to the Legal Aid Review Committee, and the fact that there was no evidence as to the grounds of the appeals, or their prospects of success. However, his Honour set out the text of the letter from the Legal Aid Commission dated 28 January 1992 which stated that the appeals would be determined within one month following the date of the letter. It cannot be assumed that his Honour set out the text of the letter without taking into account its contents. In our opinion, no error is disclosed in his Honour's reasons in this regard. (counsel’s own emphasis)
The final authority referred to assist with the meaning of “special circumstances” was in Expile Pty Limited v Jabb’s Excavations Ltd (2002) 194 ALR 138, where Hamilton J cautioned:
The other thing that may be said about the meaning of the words “special circumstances” in this context is that there should be no exhaustive attempt to define or list the matters which may come within the rubric “special circumstances” as used here. … The discretion is a discretion to be exercised by the judge on the view that he or she takes all of the circumstances in each case.
Therefore it is submitted on behalf of the mother that in family law proceedings “all of the circumstances of the case” must include a consideration of those factors outlined in counsel’s written submissions characterised as “Respondent’s argument in relation to refusal to grant adjournment (Ground 1)”. We agree that this list comprehensively includes the considerations for the Federal Magistrate, however the language used in the submissions suggesting the need to balance does not reflect the intent of the legislation.
Additionally, it is submitted that in child-related proceedings “all the circumstances of the case” must include the welfare of the child. It is argued that “the same considerations apply to an application to adjourn as to an application to adduce fresh evidence”. In determining whether or not to admit evidence on appeal, McHugh, Gummow and Callinan JJ in CD v VAJ (1998) FLC 92-828, cited with approval the Full Court judgment in VJ v CJ (1997) FLC 92-772 where it was said:
… the constant shadow of the paramountcy principle in child welfare cases is such that at the very least, the best interests considerations are powerful matters to be weighed up against a competing principle such as finality.
And at paragraph 88.
In determining whether or not to admit that evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard. (counsel’s own emphasis)
We do not regard it as necessary in this case to consider the extent to which the best interests of the child be a proper consideration in determining special circumstances in the context of s 57 of the Legal Aid Commission Act 1979 (NSW)

The Independent Children’s Lawyer’s position

By way of letter filed 17 December 2010 we were advised that upon receipt of both the written submissions of the father and the mother, the Independent Children’s Lawyer did not wish to make any further submissions. The oral submissions made clear that the Independent Children’s Lawyer did not support the appeal being allowed.

Conclusion

This is a most unusual case.
In our view the Federal Magistrate was correct in deciding that the provisions of s 57 applied. The effect of those provisions are not reduced by any provisions of the Family Law Act 1975 (Cth) or the Rules. We accept the submissions made on behalf of the father in this respect.
We are also of the view that the provisions of s 57 create a presumption that an adjournment will be granted where the criteria are met unless there are "no special circumstances that prevent [the court] from doing so”. In considering whether there are special circumstances that prevent the court from ordering an adjournment the matters considered by the Federal Magistrate were those pertinent in the circumstances.
The Federal Magistrate had the benefit of an expert report which made very clear recommendations. While it can be said that the report was untested in the sense of the doctor not being cross examined, there was no other expert evidence.
No doubt in most cases where one party has appealed from a Legal Aid decision in relation to obtaining aid for legal representation, an adjournment should be given. In this case it was known to the Federal Magistrate that aid was refused on a merits basis. While it is not for the Legal Aid Commission of NSW to determine the outcome of proceedings this was a proper fact for the Federal Magistrate to take into account among the many considerations to which she referred.

As was correctly emphasised by her Honour the consequences for the mother should the matter be adjourned were also very serious. In our view the Federal Magistrate was correct in not granting the adjournment.
In our view, the approach of the Federal Magistrate in considering the adjournment by reference to general principles did not affect her decision in relation to the State Act. It is clear from the judgment that she considered the provisions of the State Act first and then turned to discretionary considerations in an abundance of caution.
Finally, in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 the High Court (Mason, Wilson, Brennan, Deane & Dawson JJ) said:
That general principle [entitlement to a fair trial] is, however, subject to an important qualification … Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. …
The comments of the High Court in Stead v State Government Insurance are of particular relevance to this case. Even if an adjournment was the preferred course, it would be difficult to envisage that a new trial would lead to a different result for the father.
A new trial would inevitably result in the same orders being made. Given the significant implications for both the child and the mother of a re-hearing, the process would be both detrimental and futile.

Other grounds

Although the arguments in the appeal are focused on ground 1, it is necessary for us to also deal briefly with the other grounds.
Apart from the ground in relation to the adjournment, this appeal is otherwise an appeal against a discretionary judgment. We note that there was no oral argument in relation to ground 2. Reliance was placed on the written submissions. The submission relied upon is as follows:
36.The circumstances in which the appellant presented before the Magistrate at the hearing, including the fact that he was dressed in prison clothes on the first day, was on remand in relation to an alleged breach of an AVO against the Mother (which proceedings were later dismissed), the refusal of the adjournment, together with the Magistrate’s total acceptance of the opinions of [Dr W] in circumstances where there was no effective opposition to that expert opinion, were such that a fair-minded observer might reasonably apprehend that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question she was required to decide. In all the circumstances, a fair-minded observer might reasonably apprehend that the Magistrate did not bring an impartial mind to the central question she was requires [sic] to decide: what level of access, if any, was it in the child’s best interests to have? The ultimate determination was a “no access order”, the highest and most severe order possible in the circumstances. That determination was tainted by the combination of circumstances referred to above.
It can be seen from the submission itself that this ground could not succeed.
In our view, when applying the well known tests in relation to apprehended bias as explained in British American Tobacco Australia Services Ltd v Laurie (as administratrix of the estate of Laurie and on her own behalf) and Others (2011) 273 ALR 429 it can be seen that this ground has no basis. Even if the written submissions identified what is said might lead the judge to decide the case other than on its legal and factual merits (the first step), the second is not apparent.
The remaining grounds 3, 4 and 5 asserted errors in failing to give sufficient weight to some matters or giving too much weight to others.
The principles in relation to appeals, where such grounds are relied on, are well settled: see House v King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
In circumstances where no error of law or fact is asserted, it is necessary to make reference to the decision of the High Court in Gronow v Gronow where Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have been done so at all.
The decision of the Full Court (Fogarty, Lindenmayer & O’Ryan JJ) in A v J (1995) FLC 92-619 is also of assistance in this case. Particularly at 82,232 where it was said:
It must be remembered that in child welfare proceedings the Family Law Act confers a wide discretion and that ultimately the Court must be satisfied that the orders proposed are in the best interests of the child. It is the paramount welfare of the child which is the material ultimate finding which must be made in those proceedings. It is, in our opinion, particularly in matters where it is considered that the competing proposals are evenly balanced, important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial Judge if, in all the circumstances, it is clear that the trial Judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration. As we have said, the Act confers a wide discretion on a trial Judge in child welfare proceedings and, provided the approach which has been laid down in Smith’s case and Maday’s case is followed, an appellate court will be hesitant to undertake a detailed examination of alternative interpretations of words and phrases used by a trial Judge if it is clear that overall the trial Judge has done that which he/she is required to do by the Family Law Act and authority and has sufficiently evaluated the evidence. (original emphasis)

Decision of the Federal Magistrate

The trial judge delivered lengthy reasons for judgment. It is necessary to repeat parts of her Honour’s reasons in order to appreciate the factual circumstances of this case. Where the factual background was uncontroversial we will refer to her Honour’s judgment, but in summary.
The father was born in Israel in June 1975 and the mother was born in London in July 1965. The father came to Australia first in 1998 for a period of approximately three years, and then returned to Australia sometime in 2004. The mother migrated to Australia in April 2001 and has permanent Australian residency. Neither parent has any extended family in Australia.
The proceedings before the Federal Magistrate concerned the parenting arrangements for the child, who as previously mentioned, was born in August 2007. The parties to the proceedings commenced cohabitation in Melbourne in July 2006 and separated on 17 January 2008. Throughout this 18 month period the couple did not live together continuously.
The reasons for judgment explain that the mother had primary responsibility for the child since birth. In the section characterised by the trial judge as ‘Background’, it is said that the mother fled from Melbourne to Sydney “to get away from [the father’s] abuse and to make sure the rest of [her] pregnancy was safe”.
At trial, the father sought to have equal shared parental responsibility for the child and for the child to live with the mother. Orders were also sought for the child to spend time with the father on a graduated basis, with a view to the child, by school age, spending each alternate Wednesday night, and weekends with the father, as well as half of the school holidays. The father also sought that the child’s name be placed on the airport watch list and for his name to be added to the child’s birth certificate.
The mother asked that she be given sole parental responsibility and that the child live with her. The mother also asked there to be no contact between the father and the child and for the child’s name to be placed on the airport watch list. The mother did seek an order allowing her to remove the child from the Commonwealth of Australia for two periods of four weeks in each calendar year.
As can be seen from the above summary, the parties were in agreement that the child should live with the mother. The issues for the Federal Magistrate were therefore, whether the mother and father should have equal shared parental responsibility or whether the mother should have sole parental responsibility; what time, if any, the child spend with the father and whether the father’s name should be placed on the child’s birth certificate.
In paragraph 29 of her Honour’s reasons for judgment, the trial judge stated that these competing proposals were considered in:
…the context of what was in the child’s best interests as ascertained by a consideration of the objects and underlying principles set out in s.60B(1) and s.60B(2) of the Act, respectively, and within the framework of the primary considerations under s.60CC(2), and then the additional considerations under s.60CC(3), and taking into account how each parent has fulfilled or failed in their parental responsibilities to date, as required under s.60CC(4) and s.60CC(4A) of the Act.
The Federal Magistrate then said that she had “carefully considered the respective submissions of the parties and of the Independent Children’s Lawyer”. Her Honour, appreciating the father was self-represented, stated that she took his submissions into account and where relevant inferred references to the applicable statutory considerations.
The Independent Children’s Lawyer suggested that it would be appropriate in this case for Dr W’s recommendations to be adopted. Dr W is a child psychiatrist. In the last paragraph of his report the doctor said:
So that the maternal- child bond is maintained in its current form, and not subjected to any potentially traumatising influences, and taking into account the specific vulnerabilities of the mother, I support the mother’s application filed on 27 August 2008,that she have sole parental responsibility for [the child] and that there be no contact with [the father].
The submission of the Independent Children’s Lawyer was that the child should spend no time with the father.
After summarising the issues before her Honour, she then proceeded with the judgment under a number of headings. For convenience we will use the same headings here.

The primary considerations: s 60CC(2)

(a)The benefit to the child of having a meaningful relationship with both parents

In considering s 60CC(2)(a), the child having a meaningful relationship with both parents, the trial judge, at paragraph 32 of the reasons for judgment said:
… I have carefully considered the expert evidence of [Dr W] who recommended that the child should live with the mother and that the father should have no contact with the child. [Dr W] made it very clear to the Court that his recommendation that the child have no contact at all with the father was “a very unusual decision” and indeed “in thirty years in coming to this Court, I have never come to that conclusion before”. (original emphasis)
The fact that the father has had limited contact with the child since the child’s birth, can also be seen to have been of considerable significance to the trial judge’s decision. As also was Dr W’s opinion that “given the father’s psychopathic personality traits and taking into account the specific vulnerabilities of the mother, the maternal-child bond should not be subject to “any potentially traumatising influences” (original emphasis). Her Honour said:
38.I accept the opinion of [Dr W] that the Court should have significant concerns over the benefit to the child of ever having a meaningful relationship with his father.
39.I further accept that this is a case where the benefit to the child of having a meaningful relationship with his mother would be substantially at risk should the father be an ongoing presence in his life. I accept that the mother’s childhood and background experiences, including bulimia, an attempted suicide, and difficulties in her relationship with her own mother, have potentially made her more vulnerable to both forming a relationship with and being significantly adversely affected by a person with sociopathic or psychopathic personality traits. Simply put, I accept the submission by Mrs Cleary that:
events in her own life made her vulnerable to the impact of this kind of abusive relationship … [there is] no prospect of the child having a meaningful relationship with both his parents.
40. I further accept her submission that the child has:
a strong prospect of having a meaningful relationship with his mother but in the event that any kind of relationship with his father was implemented that relationship with the mother is likely to be severely negatively impacted … it is just one of those rarer situations where a child can only have a relationship with one parent or the other and it isn’t a case where the child could have a meaningful relationship with the father in the absence of his mother … the evidence of [Dr W] just simply rules that out. (original emphasis)
Her Honour, at paragraph 48 of the reasons for judgment made reference to the following extract from Dr W’s report:
[The father] showed he was totally unable to take direction from another person, more qualified than himself, in the care of children. It is not hard to imagine, that should he have unsupervised contact with [the child], that he would totally disregard anything of importance that [the mother] or any other person might attempt to communicate to him about [the child’s] needs (Report p.43);
And at p.36 of his Report
[The father] appeared to scorn the supervisor who was in fact trying to facilitate the contact. He acted as if he was an authority on [the child] and how he should be managed. He gave the impression that he could not hear another’s point of view (and see also pp.33, 34 and 35 of the Report). (original emphasis)
It seems that the father has behaved inappropriately to others, in addition to the mother.
It was accepted by the trial judge that a Ms L, “a 64 year old Balmain resident who employed the father to walk her dog and as her personal trainer”, was terrified by an incident that had occurred with the father and which caused her to fear the father.
Her Honour was of the view that:
68.…the pattern of the father’s lifestyle, to date, mitigates against his being in any position to provide a positive role model for [the child], notwithstanding that he has undertaken a parenting course in the past. Indeed since his coming to Australia, there is simply no evidence to support any stability of lifestyle, both as to accommodation and employment.
The trial judge at paragraph 70 accepted “that the father has failed to demonstrate that he can be a responsible and reliable parent for [the child]”.
It is evident from the reasons for judgment that her Honour considered the credibility of the mother’s evidence. This issue was raised by the Independent Children’s Lawyer before the trial judge as there was some criticism of the mother’s continued relationship with the father in Sydney and her failure to seek an apprehended violence order against the father, despite allegedly fleeing from Melbourne in an attempt to escape the father. This was also irrespective of her allegations of the father’s stalking, harassment and continued abuse.
Dr W conceded that he did not “fully understand” the mother’s actions, however offered an explanation by stating “I think she was fearful of him and fearful of what saying no would mean but she was involved with him and I can’t fully explain that”.
The mother also offered her own reasons for continuing to see the father when cross examined. These reasons are summarised by the trial judge in paragraph 73:
… The mother stated, in effect, that she did not have any option but to see the father in these circumstances, where she was four months pregnant with his child, she was 42 years of age, where she had been subjected to months of abuse, and where the father already knew where she was living. She explained that: “I feared for my and my son’s life”. (original emphasis)
The following exchange took place between counsel for the Independent Children’s Lawyer and the mother during the hearing:
ICL: So why see him?
MOTHER:It seemed the easiest way- [I] hadn’t found new doctors and hadn’t booked into a hospital and at the risk at 42 years of age of miscarriage, I saw him because I feared him and have been fearing him ever since. The police went to the Courthouse to stop him coming to New South Wales. He is a very determined man, hating my guts.
ICL:Why not go to the Police?
MOTHER:I feared him. I didn’t want to aggravate him. If I got an Apprehended Violence Order when pregnant, there was a chance the unborn baby or I would be harassed … and through not getting an Apprehended Violence Order at that time I was able to keep my unborn son and myself alive …
ICL:After the birth of [the child], [you were] more able to seek an Apprehended Violence Order?
MOTHER:There’s a huge distinction, [the child] was alive and born.
ICL:You thought the father would harm you [when pregnant]?
MOTHER:He already threatened to do so and I believed he would.
Her Honour said of this issue:
75.I found the mother’s explanation of these matters convincing and her continuance of the relationship with the father in Sydney during the pregnancy and her failure to seek an Apprehended Violence Order until after [the child’s] birth to be fully explicable in the circumstances in which she found herself, having previously sought police assistance both to leave Melbourne and the ultimately unsuccessful attempt by the police to have the father restrained by his bail conditions from coming to Sydney, and given the history of the relationship and her fears for the safety of herself and her pregnancy. I accept the mother’s evidence on these matters as credible and reliable. Overall I found her to be an impressive witness, who was doing the best she could to explain her initial embarrassment in getting herself involved so quickly in a relationship with the father; and her emerging ambivalence and fear of him as she was subjected to aspects of his abusive behaviour. Perhaps [Dr W] describes it best, in this regard, when he states that:
It seems to me that [the mother] had a genuinely ambivalent relationship with [the father] and that … there were aspects of him that she did not like in the beginning and she was taken in by him as have other people been taken in by him because, as I said, psychopaths can be charming. They can manoeuvre you into a position of giving them what they want … And then I think she started to experience some of the more cruel and aggressive aspects of his personality and she felt trapped … she was gradually able to get to the point where she could separate or not want to have any more to do with him because she saw him as … toxic to her … I think she was genuinely caught up with him in the beginning and then discovered through talking that really this wasn’t a very healthy relationship for her at all (transcript 4/02/08 pp.10-11). (original emphasis)
76.I accept [Dr W’s] opinion on these matters that the mother’s response to the father must be considered in the context of a process of gradual awareness and insight by her of the nature of her relationship with the father.

After consideration of all the issues raised in the trial, her Honour was satisfied that there was an overwhelming benefit to the child having a meaningful relationship with the mother. The trial judge was also satisfied that any benefit to the child of having a meaningful relationship with the father must be outweighed by the father’s “psychopathic personality traits” and the potential impact of such traits directly on the child and on the mother’s “fragile personality structure”.
Mrs Cleary submitted on behalf of the mother:
… there being such a young child involves, it is just one of those rarer situations where a child can only have one relationship with one parent or the other and it isn’t a case where the child could have a meaningful relationship with the father in the absence of his mother … the evidence of [Dr W] just simply rules that out.
This submission was accepted by the Federal Magistrate.

(b) The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

Her Honour was of the view that although Dr W had considered the child to not have been significantly affected by his exposure to family violence at this stage, it was also relevant to address this consideration.
Reference was made to the mother’s evidence of what happened when the father came to Sydney:
80.… the mother alleges that:
he grabbed my hair and a huge wooden pole with his other hand. It was like a broomstick handle. [The father] then forced me to have sex by digging the pole into my belly and saying in angry tone words to the effect:
[The father]: “Either I kill the baby or we can have sex.”
I started to cry and the more I cried the harder he dug the pole into me … I was very scared that I was going to get hurt or the baby was going to be harmed by the pressure on my stomach. I had to make a decision and I chose to keep my baby boy alive … I really knew now that I was in serious trouble and an impossible situation (mother’s affidavit of 25 August 2008, paragraph 167; mother’s affidavit of 17 April 2008, paragraph 97).
81.The mother further alleges that a few weeks after the birth of the baby:
[The father] started trying to have sex with me. He would be forceful and climb on top of me, usually when I was lying down with [the child]. He would straddle me and pin me down with his eyes bulging and his hands around my neck. I remember feeling petrified that [the child] would fall off the bed. Finally, [the father] would get up and laugh and spit at me (mother’s affidavit of 25 August 2008, paragraph 193).
and that, on another occasion, when the mother refused to have sex with the father:
[The father] got more aggressive the more I said no until he was shouting at me and had his hand on my throat. I was crying and screaming for [the father] to get off and [the father] was trying to put his hand over my mouth to muffle my cries and screams. As much as I was panicking about the danger to myself, I was also trying to make sure that [the child] was not squashed or harmed. I was pleading with [the father] to leave me alone and be careful of [the child] but he did not care (mother’s affidavit of 17 April 2008, paragraph 122). (original emphasis)
The mother filed a notice of child abuse and family violence on 14 May 2008. It was noted that further allegations of abuse were itemised. These include the father, threatening to kill the child, throwing the child on the bed from a great height, attempting to bathe the child in hot water, pretending to punch the child in the face and stomach, holding the child on his erect penis and pushing the child in his pram so that it crashed into a tree. These allegations were denied by the father.
The evidence of the mother and her friend, Mr H, who the mother and the child reside with, was accepted over the evidence of the father. In reaching this determination, her Honour expressed this preference was based on general findings of credit.
Dr W’s opinion that the mother was genuine in recounting her history of the relationship with the father was also accepted. The observations of Dr W were outlined in paragraph 85 of the reasons for judgment:
[The father] did seem to hold to rigid and stereotypical views of what would make [the child] “strong”. In this way he seemed quite out of touch with [the child’s] own developmental needs. [The father’s] comments on [the child’s] various forms of prowess had a narcissistic quality to them – they seemed to reflect something in his mind about himself as a powerful man who was above other men. He thought [the child] had been damaged by [Mr H’s] softness, when it seemed more likely that he was simply jealous of [Mr H’s] access to [the child].
More worrying during the observation was the fact that [the father] rarely if ever took cues from [the child] as to what he felt comfortable with or wanted. It was as if again [the father] had a predetermined view of what [the child] should enjoy, and he was determined to impose this on him …
[The father] seemed quite impulsive and seemed to conduct his life, and engage in relationships in quite a random manner. There are so many examples of this – his relationship with [the mother], his impulsive plan to go to Fiji with a woman he barely knew, his garbled account of following the woman home whom he was later charged with stalking. He seemed to be driven by impulse – to gamble, to drink; to enter others lives in quite a chance fashion. As such, it is hard to imagine him placing the needs of a small and vulnerable child ahead of his own needs, as there appears to be so little constructive planning in his life (emphasis added). It seems significant that he was late for two of his contact times with [the child] – particularly when he is so adamant that he has been unjustly deprived of his rightful contact with his son. (original emphasis)
Her Honour said:
86.I found the father to have a totally self-focused and predetermined view of [the child], lacking in insight as to the developmental needs and welfare of the child. His demonstrated unreliability, impulsivity, and lack of a stable lifestyle further detract from his capacity to provide for [the child’s] needs in any proper or meaningful way which could place the child at risk of physical and/or psychological harm.
87.I also accept that the father has already demonstrated a low frustration-tolerance level in his dealings with [the child] on a number of occasions, including when [the child] was crying in his care at the gym (and see the mother’s affidavit of 17 April 2008, paragraphs 120,121); when he kept wrapping and re-wrapping [the child] at the hospital after his birth (see mother’s affidavit of 17 April 2008, paragraph 114); and his holding [the child] too close to the balcony ledge (see mother’s affidavit of 25 August 2008, paragraph 192). I accept the mother’s evidence in this regard that the father:
can be affectionate [with [the child], but] not for long, for a very short time until he is bored, or fed up or wants to go to the casino, or [the child] is crying. He becomes impatient … if he tires of [the child], he will give [the child] back, or throw him onto the bed or just leave him. (original emphasis)
With regard to the second primary consideration her Honour expressed considerable concern, particularly in relation to the psychological harm to the child and the risk of the child being subjected to or exposed to abuse, neglect or family violence by his father. It was said at paragraph 89 that:
… This is all the more concerning where the father has demonstrated little regard for authority. In this regard, the Court must have grave concerns over the potential for physical harm to [the child] in the future where his father has, according to [Dr W], a personality structure that cannot be challenged and that he can “act out quite dangerously” in such circumstances. … (original emphasis)

Additional considerations: s 60CC(3)

Given the age of the child s 60CC(3)(a) is not a relevant consideration in this case. Sections 60CC(3)(g), 60CC(3)(h) and s 60CC(3)(l) are also not applicable. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, and ss 60CC(4) and 60CC(4A) were discussed throughout the other considerations by the trial judge.

(b) The nature of the relationship of the child with:

i)each of the child’s parents; and

ii) other persons (including any grandparent or other relative of the child)

In terms of s 60CC(3)(b) it was accepted by the trial judge that the mother and the child shared a loving bond. It was said that the mother has been the child’s “primary and very positive attachment figure from birth”.
Mr H was said to have provided a “most supportive role for the child emotionally, physically and financially”. It was accepted that Mr H would continue to play such a role into the future. Her Honour said at paragraph 95:
I accept [Dr W’s] opinion of [Mr H] and the positive and supportive role he has, and continues to fulfil in [the child’s] care, welfare and development. I found him to possess clear insight into the needs of [the child]. I also found him to possess commendable qualities of genuine caring and admirable altruism which he focused on the mother and [the child] for their benefit and with [the child’s] best interests ever present.
These findings were then contrasted with the relationship that the father and the child share. The father had very limited contact with the child and it was noted by Dr W that there seems to be “a very weak bond between the two”. (original emphasis)

(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and ss 60CC(4) and (4A)

The submission of the Independent Children’s Lawyer was that the mother “would have very little, if any, capacity to encourage and foster a close relationship between the father and [the child]” and that the mother “does not have any capacity to foster a relationship between [the child] and his father, save and except to say, that she did say that should there be an order for no contact she would facilitate [the child] receiving cards and gifts from the father at birthday and Christmas”. The mother has not put the father’s name on the birth certificate and has unilaterally taken the child overseas.
Her Honour considered the actions of the mother in “the historical context of the abusive relationship in which she had become involved with the father” and that they were made as a result of her “genuine fear for her and [the child’s] safety. It was accepted that there would never be the possibility that the mother would modify her attitudes towards the father’s involvement with the child.
With regards to the father’s capacity to facilitate and encourage a close and continuing relationship between the child and the mother, Dr W was “most dismissive of the father’s willingness”. His view was accepted by the trial judge. Her Honour said that she did “not consider that the father has demonstrated a genuine admiration for the mother’s parenting to date”.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect in the child of any separation from

i) either of his or her parents; or

ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Her Honour accepted the submissions of the Independent Children’s Lawyer in that, if the father was not afforded time with the child, the child would not be affected. The child has seen very little of his father, but if orders were made providing time, there may be a significant impact on the child.

(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

It was said at paragraph 115 of her Honour’s reasons:
Given the high level of instability in the father’s lifestyle to date, I consider that any assessment of the practical difficulty and expense of the child spending time with and communicating with the father and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with his father must, at best, remain highly speculative in this case. It is simply not possible to predict with any certainty where the father will be living and what will be his means of support, if any.

(f) The capacity of:

i) each of the child’s parents; and

ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs.

Her Honour said, at paragraph 117 of her judgment that:
The mother has impressively demonstrated, in the face of a traumatic relationship with the father and with her own significant vulnerabilities, that she can provide extremely well for [the child’s] emotional and intellectual needs. Her age and maturity have clearly contributed to her understanding and insight into his needs, which have become pivotal in her life.
Favourable comments were also made about Mr H’s capacity to provide for the child.
In contrast, it was said that although the father “has the capacity to be loving and playful” with the child, he possesses a “contemptuous” attitude in “taking advice and assistance from others with experience with children”. It was concluded, that the father does not have “the capacity to observe or understand [the child’s] needs independently of his own”.

(j) Any family violence involving the child or a member of the child’s family.

In paragraph 129 it was said by the trial judge:
The Court has before it the affidavit and oral testimony of the mother in which she makes allegations of on-going verbal, sexual and physical abuse including spitting, threats, intimidation, stalking, non-consensual sex and physical violence over the period of her cohabitation with the father first in Melbourne, and then in Sydney; that she sought on two occasions to flee from his verbal and physical abuse by leaving Melbourne with Police assistance in February 2007 and coming to Sydney; and then from Sydney to Perth in January 2008. She stated that she feared for her own safety, and for her unborn child.
The father denies all “acts of violence, all intimidatory behaviour, spitting and all acts of non-consensual sex, as alleged by the mother”. He also alleges that on a number of occasions that the mother was physically aggressive towards him.
Dr W was of the view that the mother was genuinely fearful of the father from her experiences of violence. Her Honour accepted Dr W’s opinion.
Ultimately it was concluded at paragraph 139 that:
… given my findings of overall credit in relation to the parties, I am satisfied, on the balance of probabilities, that the father has been violent to the mother and that this has been the case on some occasions when the mother has been holding [the child], and given [Dr W’s] concerns over the demonstrated dangerousness of the father’s personality, the Court must have considerable concerns in this regard, notwithstanding that there has been no overt physical violence by the father directed to the child.

(m) Any other fact or circumstance that the Court thinks relevant

Under this subsection the issue of the father’s name being added to the child’s birth certificate was considered. It was concluded by the trial judge that:
148.If the Court were to make an Order that the father’s name not be placed on the child’s birth certificate, I also have no doubt that the mother and [Mr H] would most carefully and sensitively assist the child in understanding the circumstances for such a decision… Notwithstanding these matters, however, I consider, on balance, that it is in the best interests of the child that he have the right to know, in this formal and recognised way, via his birth certificate, who his father is, not merely from what his mother and [Mr H] may tell him.
149.I consider that the mother’s very legitimate concerns that the father may seek to remove the child from Australia can be addressed, first, by an order of the Court placing the child on the Airport Watch List and restraining the father from removing the child from this jurisdiction; and secondly by restraining the father from seeking to obtain or use any passport, whether Australian or Israeli, upon which the child is, or may be, included.

Whether the presumption of equal shared parental responsibility applies

Both the mother and the Independent Children’s Lawyer sought to rebut the presumption of equal shared parental responsibility. They submitted that it was in the best interests of the child pursuant to s 61DA(4) of the Act. The evidence of Dr W was relied on in support of this position.
It was accepted by the trial judge, at paragraph 151, that this is a case in which:
… the parent’s will never be able to communicate about [the child’s] care welfare and development on the major issues in his life, given their respective personality traits as identified by [Dr W], and any such communication may be fraught with trauma for the mother and may put her capacity to effectively parent the child at high risk, which would not be in his best interests.
Her Honour considered the abilities of each of the parents. In reference to the father it was said:
152.… the father’s psychopathic personality traits predispose him to an egocentric view of the world, and of his own child, which precludes his capacity to have any insight into what are the best interests of [the child], not only in the longer-term but also on a daily basis should he spend time with him. I am also satisfied that the father has had limited if any input into the decision-making affecting the care, welfare and development of the child to date, and has not thus been able to demonstrate any present capacity in this regard.
153.As to the future, I consider on the evidence before me that the father does not present as a viable paternal role model for the child. The Court would have to seriously question his capacity to make reasoned decisions and to exercise his judgment in the best interests of [the child]. His itinerant, erratic, impulsive and unpredictable history, including the particular nature of his Victorian criminal antecedents; the most concerning abusive and violent way in which he treated the mother throughout their relationship; [Ms L] on the one occasion; and security staff at the Crown Casino, provide no support for his capacity in this regard.
With regard to the mother, it was said:
154.By contrast I accept that the mother has been doing an admirable job in raising [the child], which is all the more impressive when one considers that she has done so notwithstanding her own considerable vulnerabilities where she could have become overborne by the continued abusive behaviour of the father. I accept that she has demonstrated a resilience to withstand this behaviour by putting the care, safety, development and welfare of [the child] as her first priority. I have no doubt that she has been greatly assisted in this regard by the immense support she has received, and I accept will continue to receive, from [Mr H], including emotionally, financially and physically.
Accordingly, her Honour concluded that the presumption could be rebutted in this case pursuant to ss 61DA(2) and 61DA(4) of the Act. The trial judge found that it was in the best interests of the child for the mother to have sole parental responsibility.

Whether the child should spend time with his father, or not at all

Given that the presumption of equal shared parental responsibility was rebutted, her Honour noted that she did not have to consider whether it was in the child’s best interests that he spend equal time or substantial and significant time with the father.

Rather the circumstances in this case raised the question was whether any time should be provided. After considering the significant concerns given the dangerous nature of the father’s personality, the fact the child had not yet developed a strong bond with the father and the mother’s vulnerable personality, it was said “the Court would have to question what benefit, if any, there would be to the child in spending time with his father in a supervised setting”.
It was ultimately said by the trial judge that she was “satisfied that it is in the best interest of the child that he not spend any time with the child”. Orders were made however, providing that the father be supplied with a recent photograph of the child and that the father and his family be able to post the child cards and/or gifts on his birthday and at Christmas.

Conclusion

In relation to the grounds asserting errors of weight we are of the view that there is no substance to those arguments.
The appeal should be dismissed.
The Federal Magistrate carefully considered all the evidence and applied the relevant provisions of the Family Law Act 1975 (Cth). There is no reason why this court would reach a different conclusion than the trial judge. The father was not able to demonstrate that there was any error of law or fact on the part of the trial judge, nor that any relevant matter was not considered, or wrongly considered.
Whilst it must be acknowledged that the effect of the orders made by the Federal Magistrate largely terminate the child’s relationship with the father, the evidence supported such orders in the child’s best interests.

Costs

The costs of the application were reserved by the Full Court on 15 September 2010. Orders will be made for written submissions.

I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Ainslie-Wallace JJ) delivered on 4 April 2011.

Associate:

Date: 4 April 2011