Saltern & Mink
[2020] FamCAFC 320
•17 December 2020
FAMILY COURT OF AUSTRALIA
| SALTERN & MINK | [2020] FamCAFC 320 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals from parenting orders which provide for, inter alia, the child to live with the mother and spend limited daytime, and no overnight time, with the father – Where the primary judge made numerous adverse findings about the father’s credibility as a witness, including as to the central issue of family violence – Whether the primary judge gave adequate consideration to an “alternate” proposal raised for the first time by the father in written submissions provided after the evidence had closed – Where the primary judge gave discrete consideration to the question of time between the child and his father – Where the primary judge was not required to make mention of every fact or argument raised – Whether the primary judge gave weight to matters which were not put to the father during the trial – Where no substantial miscarriage of justice would be demonstrated even if the complaints of error were established – No error established in any event – Appeal dismissed – No order as to costs. |
| Evidence Act 1975 (Cth) s 48 Family Law Act 1975 (Cth) ss 69ZT, 94AAA |
| Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 Kuhl v Zurich Financial Services Ltd and Anor (2011) 243 CLR 361; [2011] HCA 11 Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Saltern |
| RESPONDENT: | Ms Mink |
| FILE NUMBER: | BRC | 7393 | of | 2019 |
| APPEAL NUMBER: | NOA | 47 | of | 2020 |
| DATE DELIVERED: | 17 December 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Strickland, Kent & Watts JJ |
| HEARING DATE: | 10 December 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 June 2020 |
| LOWER COURT MNC: | [2020] FCCA 1635 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bolovan |
| SOLICITOR FOR THE APPELLANT: | Smart Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Bateman |
| SOLICITOR FOR THE RESPONDENT: | Georgia Flynn Solicitor |
Orders
The appeal from the orders made in the Federal Circuit Court of Australia on 19 June 2020 be dismissed.
There be no order as to costs of the 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 Saltern & Mink 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 47 of 2020
File Number: BRC 7393 of 2019
| Mr Saltern |
Appellant
And
| Ms Mink |
Respondent
REASONS FOR JUDGMENT
This is an appeal from final parenting orders made by the primary judge in the Federal Circuit Court of Australia (“the FCC”) on 19 June 2020 concerning the parties’ only child X, born in 2018 and who is now two years of age (“the child”).
As at trial, the child had been living with the mother in the D Town/E Town district of New South Wales where the mother intended to continue living, whilst the father was living at F Town, Queensland where he intended to continue living. Their homes are 600 kilometres apart involving an approximate seven hour travel time by car. The primary judge found that neither parent has significant financial resources (reasons at [120]).
The parenting orders essentially provide, in summary:
a)That the child live with the mother and the mother have sole parental responsibility;
b)That the child spend time with the father on the third weekend of each month from 9.00 am to 5.00 pm on Saturday and from 9.00 am to 1.30 pm on Sunday;
c)That the child have weekly telephone/FaceTime communication with the father;
d)Once the child commences school, the mother provide the father with a copy of school reports;
e)That the father be restrained from contacting the mother unless in the case of an emergency; and
f)Dispensation with the requirement for the father’s signature on any passport application for the child.
The father appeals from all orders and seeks that the matter be remitted for rehearing by a different judge.
The mother seeks that the appeal be dismissed.
For the reasons which follow this appeal must be dismissed.
Central findings of the primary judge
The father was born in 1991 and soon turns 29 years of age. The mother was born in 1992 and is 28 years of age.
The parties had a relatively short lived and apparently sporadic relationship. They met in January 2016 and commenced cohabitation in December 2017, finally separating in early 2019. As already noted, the child was born in 2018.
Taken from the reasons for judgment of the primary judge it can be seen that the following central findings inform the parenting orders the primary judge made:
a)The father is an untruthful and unreliable witness and the evidence of the mother is to be preferred to that of the father where their evidence conflicts (at [202]–[208]);
b)
The father has perpetrated physical assaults upon the mother
(at [209]–[211]) and has perpetrated coercive and controlling behaviours towards the mother physically, financially and emotionally (at [146], [226]–[236], [244] and [245]);
c)There is a need to protect the child from being exposed to the risk of family violence, harm or abuse posed by the father (at [183], [257], [258], and [287]). That risk is informed by, amongst the findings of family violence overall, an episode when the father placed a pillow over the face of the child when the father was briefly left alone with the child who was then only seven weeks old (at [102]–[105] and [167]);
d)The mother has always been the child’s primary carer (at [260(c)]) and has the capacity to provide for the child’s needs whilst the father has not demonstrated that capacity (at [260(f)]). The primary judge quoted, with apparent approval, the evidence of the expert family report writer that the mother has provided the role of primary carer for the child all of his life and that “maintaining the child living with the mother was crucial for [the child’s] longer term development and emotional well-being” (at [181]);
e)The mother’s living with the child in the E Town district has achieved for the child an established routine, regular involvement with the maternal family and has been to the mother’s benefit and consequently for the child’s benefit. A disruption to this would not be in the child’s best interests (at [184] and [279]);
f)Orders for the child’s time with the father must meet the need to protect the child from the father’s family violence. Short of the imposition of supervision of time, the child would be protected by limited (daytime) periods not including any overnight periods (at [287]–[292]);
g)Orders for the child to visit the father in Queensland would benefit only the father, but not the child, and are not needed (at [293]). The child spending time with the father on the child’s birthday or on Father’s Day could be accommodated within the existing ordered regime by negotiation (at [294]); and
h)The findings of family violence have the consequence that the presumption as to equal parental responsibility does not apply and the inability of the parents to cooperatively co-parent and the need for consistent decision making dictates that as the primary caregiver for the child the mother should have sole parental responsibility (at [261]–[271]).
The father’s challenges on appeal
It bears emphasis at the outset of discussion of this topic that with only one exception, being the primary judge’s finding at [260(f)] referred to above, none of the central findings of the primary judge set out above are the subject of direct challenge on appeal. That is, no ground of appeal is directed to any of these central findings with the contention that any of them are infected by appellable error.
An obvious and important factor to be kept in mind in assessing the father’s challenges on appeal is that the primary judge made numerous adverse findings about the father’s credibility as a witness, including as to the central issue of family violence so obviously important to the outcome of the case. In stark contrast, the primary judge found the mother to be a credible and thus reliable witness and accepted her evidence.
The difficulties a challenge to a discretionary judgment confronts are
well-known and need not be restated here (see House v The King (1936) 55 CLR 499; Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 per Kitto J at 627; Gronow v Gronow (1979) 144 CLR 513).
In the field of discretionary judgments the nature of the discretion involved in determining parenting orders received particular emphasis in CDJ v VAJ (1998) 197 CLR 172 where the plurality of the High Court (McHugh, Gummow & Callinan JJ) observed of applications for parenting orders and of their determination as follows (at 218-19):
… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…
By his Amended Notice of Appeal filed 30 October 2020, the father advances four stated grounds of appeal although sets out “[p]articulars” under each ground which might more accurately be described in some instances as submissions.
Grounds 1 and 2
It is convenient that Grounds 1 and 2 be dealt with together given the apparent overlap between them. Those grounds are as follows:
GROUND 1 – The learned trial judge erred by failing to consider, or give sufficient consideration to, the father’s alternate proposal as to time as submitted for by him in his closing written submissions.
PARTICULARS
(a)at the conclusion of the trial, the father submitted, in closing written submissions, an alternate proposal as to time for the court’s consideration if the court was not minded to make a coercive order requiring the mother to relocate to Queensland.
(b)the learned trial judge’s reasons for judgment do not contain any proper evaluation of the father’s alternative proposal.
GROUND 2 – The learned trial judge erred by failing to afford procedural fairness to the father in not making any order for time to occur between the child and the father in Queensland, and on the child’s birthday, in circumstances where both parties’ proposals proposed some time between the father and the child.
PARTICULARS
(a)at the conclusion of the trial, the father submitted for the court’s consideration an alternate proposal as to time which provided for, amongst other things:
(i)time between the father and the child occurring in Queensland; and
(ii)time between the father and the child on the child’s birthday.
(b)the mother’s case at trial was effectively that if the court did not see it as necessary for the father’s time to be supervised at a contact centre, that the father ought to spend time with the child:
(i)in Queensland on two weekends per year; and
(ii)on the child’s birthday for two hours.
(c)The learned trial judge made no order for the child to spend any time with the father in Queensland or on the child’s birthday;
(d)The matter of time between the father and child in Queensland and on the child’s birthday was a matter of significance to the father.
(e)During the course of the trial, the parties were not made aware of the possibility that the court would decline to make orders in respect of the father’s time in Queensland or on the child’s birthday.
(f)Given the manner in which the trial was conducted and the nature of the evidence in the trial, the father could not have been live to the possibility that the court would decline to make orders in respect of his time with the child in Queensland or on the child’s birthday.
(g)The parties were not afforded any opportunity to make submissions about the matters detailed above in circumstances where they should have been afforded an opportunity to do so.
The essence of the complaint in Ground 1 is that the primary judge did not give consideration to an “alternate” proposal raised for the first time by the father in closing submissions after the evidence had closed. The associated complaint is that the reasons of the primary judge were inadequate with respect to such proposal.
Obvious difficulties can arise where what is said to be a “proposal” surfaces for the first time after the evidence has closed and, in this case, is contained in written submissions sometime after the close of the evidence (see, for example, Rafferty & Spencer (2016) FLC 93-710 at [18]). This is for the obvious reason that the “proposal” may not be the subject of direct evidence including, where experts are called in the case as here, expert evidence.
However, in this case it can be seen that the range of possibilities included, depending on the findings of the primary judge about family violence, at one end the possibility of only supervised time being imposed and at the other extreme the mother being compelled to relocate with the child to Queensland, in circumstances where there was no dispute that she should continue as the primary carer of the child.
The alternate orders proposed by the father provided that the child would spend time with the father each alternate weekend with changeover to occur at K Town, which is about halfway between the parties’ respective residences. Additionally, the father sought that the child spend time with him for an additional weekend each alternate month with changeover to occur at J Town, Queensland, such that in each alternate month the child would spend time with the father for three weekends in that month. The father proposed that these orders be in place from when the child turned two years of age (as he now is) to when the child commenced school. Notably, the alternate orders proposed by the father are expressed as being his “alternative proposal if relocation is not ordered”. Obviously enough the changeover points proposed would reduce travel time for each parent but not for the child. Further, as will be discussed, the primary judge specifically rejected the proposition of the child spending overnight periods with the father, this being a means of addressing the risk the father poses as found by the primary judge, a finding not challenged on appeal.
The primary judge recorded both parties’ respective proposals for time arrangements as follows:
185. The mother has asked the Court for orders that would have [the child] live with her and give her sole parental responsibility for him. She has asked for a prohibition on communication other than by text message or email. She has asked for injunctions restraining the father from telephoning her, harassing, provoking, assaulting or insulting her.
186. She submitted that the time in which [the child] would spend with the father depended upon any finding that I make as to whether [the child] was a significant risk of harm in the care of his father. If I found that he was of no significant risk to [the child], then the mother asked that I order that the father spend one weekend a month with [the child] in [E Town], as well as two weekends a year in Queensland and time on [the child’s] birthday. If I were to find that the father was a risk, then the mother has asked that I make an order for supervised time.
187. The father has asked that I order that [the child] live in south-east Queensland. The father acknowledges that the mother would necessarily follow to live in the same region has [sic] [the child]. He proposes that [the child] would continue to live with his mother but that there would be a graduated increase in time leading to an eventual eight nights with the mother and six nights with the father. Bizarrely, the father advocates that [the child] spend half of all school holidays with him immediately, notwithstanding that [the child] is only 18 months old.
188. The father has asked that I order, if [the child] remains in [E Town], that he see [the child] each alternative weekend with the visits to alternate between [E Town] and [Queensland].
189. The father has asked that I order that there be equal shared parental responsibility.
(Emphasis added)
The primary judge dealt at some length with the expert evidence of the family consultant, Dr M. The primary judge referred to the following evidence of Dr M with apparent approval:
181.[Dr M] noted that the mother has provided the role of primary carer for [the child] for all of [the child’s] life. He said that maintaining the child living with the mother was crucial for [the child’s] longer term development and emotional well-being.
182.[Dr M] could not provide any opinion on the family violence allegations. He did note that there was no verification of this by any police documentation.
183.[Dr M] said that if the Court established that the father had perpetrated emotional, physical and financial abuse towards the mother, this would raise significant concerns for the potential of [the child] to be exposed to harm from the father. [Dr M] noted that exposure to coercive control would cause significant distress for [the child] and would impede him forming a secure attachment with the parents.
184.The recommendations of [Dr M] were contingent upon what finding the Court made as to the allegations of family violence. However, whatever the finding was regarding family violence, [Dr M] recommended that [the child] continue to live with his mother. [Dr M] did not recommend that [the child] return to [Queensland]. [Dr M] based this on [the child] having an established routine and regular involvement with the maternal family in the [E Town] area. A requirement to relocate would disrupt this stability and reduce family support in caring for the child.
(Emphasis added)
The primary judge recorded the mother’s submission that the time which the child should spend with the father depended upon the findings the primary judge made as to whether the child was at a significant risk of harm in the care of his father. As has already been noted with respect to the central findings recorded above, the primary judge found that such risk existed.
At [199] the primary judge referred to Dr M’s opinion that overnight time would not be appropriate for some time yet, an opinion expressed irrespective of the findings concerning family violence and the risk the father posed to the child.
Commencing at [272] the primary judge can be seen to give careful consideration to the father’s proposal for an order that the child live in the Queensland region. For the reasons which follow thereafter the primary judge declined (at [283]) to order that the child live in the Queensland region.
Having determined then that it was in the best interests of the child to remain living with the mother in the E Town district, the primary judge gave discrete consideration to the question of time between the child and his father. That consideration comes against the background of the primary judge having set out in some detail earlier in the reasons “[i]ssues with spending time” (at
[119]–[127]) and “[c]osts of travel” (at [133]–[145]), being the practical difficulties consequent upon the geographical distance between the respective homes of the parents. In dealing with the question of time, the primary judge expressed these findings and conclusions:
287.Given I have concluded that [the child] should remain living with his mother and that there is a need to protect [the child] from family violence perpetrated by the father, I must now look at what time [the child] should spend with his father to further his best interests, whilst still keeping him safe.
288.The mother has submitted that if I were to make the conclusions that I have made, that I should order that the father have supervised time with [the child] on four occasions a year. [Dr M] did not give a real opinion as to what time the father should spend with [the child] if the allegations were substantiated. The father did not make any submissions as to what time he should spend with [the child] if I make the findings which I have made.
289.Whilst I am of the view that [the child] needs to be protected, I am not convinced that supervised time is the only option. The current regime that sees the father spend a Saturday and a Sunday every month with [the child] has not been detrimental to [the child].
290.[The child] remains safe because he is not with his father overnight. [The child] remains safe because the environment, in which he spends time with his father, is one that he knows and with which he is familiar. The time that the father spends with [the child] is sufficient to maintain a meaningful relationship without exposing [the child] to the more unsavoury aspects of the father’s personality. In other words, because the father has such limited time with [the child], he is always on his best behaviour.
291.If the father were to have the opportunity to spend a Saturday and a Sunday with [the child], in [E Town], once a month (to be proscriptive, the third Saturday of every month), then such a regime would promote the best interests of [the child] as well as keeping him safe.
292.I am of the view that such a regime is in [the child’s] best interests. Of course, it is a matter for the father, and his financial position, as to whether he would be able to take advantage of the opportunity to spend time with [the child]. I do realise what a financial burden this places upon the father, but it is the only regime that I can see that actually reflects the best interests of [the child].
293.I do not see the need to make any order for [the child] to visit his father in Queensland. [The child] would be taken out of his familiar environment and, in all the circumstances, this would only benefit the father and not [the child].
294.I do not see the need to make any orders regarding special days. I accept that the father does not celebrate Christmas or Easter, because of his adherence to the doctrines of [his religious faith]. If the father wished to spend part of [the child’s] birthday or Father’s Day with [the child], that is something that can be negotiated with the mother in substitution for the visit that the father would have with [the child] in that particular month.
295.I would think that such a regime should remain in place until [the child] has at least reached the age of seven years, but that there needs to be a number of demonstrated changes in the father before any change to this regime could be seriously contemplated.
296.I would think that the father would need to undertake a men’s behavioural change course so that he can understand the true nature of how he has behaved and the consequences that such behaviours have on all of those around him.
297.I would also think that the father would need to undertake psychological/psychiatric treatment that is far more intensive than has occurred to date. I would allow the father to give to any therapist a copy of these reasons so as to inform that therapist of the issues identified by this Court.
As already noted, the primary judge also made orders enabling the father to have telephone/FaceTime communications with the child once a week.
We fail to see how it can be said that the primary judge did not give consideration to all relevant permutations of orders that might be made, in the context of the central findings made. The primary judge plainly elevated the need for the child to be protected, short of imposing supervision on time spent.
Self-evidently, the primary judge considered, but rejected, the option of the child spending any time in Queensland and likewise rejected any perceived need for the child to spend “special days” with the father, outside of the scheduled regime.
It is not the law that the primary judge was required to make mention of every fact or argument raised (see, Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62] per Gleeson CJ, McHugh & Gummow JJ; Mitchell & Cullingral Pty Ltd [2012] NSWCA 389 at [2] per Allsop P (with whom McColl JA agreed); Bennett and Bennett (1991) FLC 92-191 and A v J (1995) FLC 92-619 at 82,233 (“A v J”)).
As the Full Court noted in A v J a trial judge may decide a case in a way which does not require the determination of a particular submission.
We are comfortably satisfied that the primary judge’s reasons adequately explain the conclusions his Honour reached.
There is no merit in Ground 1.
Much of the foregoing applies with equal force, with the same outcome, to the complaints contained within Ground 2.
It is, with respect, nonsensical for the father to raise the complaint in this ground that because the mother proposed time being spent in Queensland, it was in fact axiomatic that such an order ought be made.
For a start, the mother’s proposal involved only two weekends per year in Queensland, but against the caveat that the mother was essentially dependent upon the primary judge’s view of the evidence concerning family violence and any consequent need for supervision or other means to protect the child.
The primary judge was obviously not bound by any proposals of the parties or either of them.
Notably, as the mother submits, the father made no submissions as to the time the child should spend with him in the event that the primary judge made findings of family violence having been perpetrated by the father.
At all times the father had to meet a case of potential supervision of time. It is axiomatic that supervised time would not involve any time in Queensland if the child and the mother remained living in the E Town district, as the mother proposed.
As already noted, the primary judge made specific findings as to why it would be contrary to the child’s best interests to remove him from his familiar environment. This is to be read with the primary judge’s conclusions as to the need to protect the child, governing the outcome that only limited daytime, and no overnight time, should take place.
As the Full Court noted in Lysons & Lysons (2019) FLC 93-891 at [38], in examining any question of alleged procedural unfairness it is necessary to look closely at the conduct of the proceedings to see whether the order had been reasonably foreshadowed and whether the making of the order involved any unfairness.
We are not persuaded of any merit in this ground.
Grounds 3 and 4
Before we address the detail in these grounds, and the particulars advanced in support of each respectively, we observe that as against the central findings of the primary judge earlier summarised in these reasons, particularly the serious findings as to family violence and risk to the child, each of the complaints particularised in support of these respective grounds, both individually and collectively, may be characterised as lying at the very margins of the case.
As the Full Court discussed in Lane & Nichols (2016) FLC 93-750 at [72] to [81] (“Lane & Nichols”), by reference to the High Court’s decision in Conway v The Queen (2002) 209 CLR 203 (“Conway v The Queen”) (and the authorities referred to in that case) it is not axiomatic that an error of law established on appeal, comprising misapprehension of evidence of a trial judge, results in an appeal being allowed. It will not be “appropriate” within the meaning of s 94AAA(6) of the Family Law Act 1975 (Cth) (“the Act”) to order a rehearing unless established error results in a miscarriage of justice.
It thus falls to the father in this case to demonstrate not only that an error of law is established but also that a miscarriage of justice has occurred as a consequence.
For the reasons which follow in addressing these grounds we are not satisfied that any error productive of a miscarriage of justice has occurred.
Ground 3
GROUND 3 – In making the Orders dated 19 June 2020, the learned trial judge erred in the exercise of his Honour’s discretion by:
1. making findings based on matters that were not in evidence;
2.misunderstanding evidence and acting under a misapprehension of fact; and
3. taking into account irrelevant matters.
PARTICULARS
(a)At paragraph 88 of the reasons for judgment, the learned trial judge refers to evidence of an admission by the father that he had interfered with the mother’s car and did so because of an attempt by another person to take the car. This was not the evidence given in the trial by the father.
(b)At paragraph 122 of the reasons for judgment, the learned trial judge finds, in terms of the child’s travel to Queensland, that “at his tender age, it is doubtful that [the child] would have a great disposition on arrival”. This finding of fact is at ends with the evidence that was given by the family report writer in the trial.
(c)At paragraph 157 of the reasons for judgment, the learned trial judge refers to evidence that the father has ongoing problems with night terrors, and that the father had described lashing out in his sleep and unconsciously hitting people nearby. This was not the evidence given by the father in the trial.
(d)At paragraphs 157 and 165 of the reasons for judgment, the learned trial judge refers to evidence that the father witnessed an incident for which he had made a claim of “nervous shock”. The evidence relating to this matter was contained in a report, produced under subpoena, which:
(i)the learned trial judge had, after reviewing the report, told the parties that the evidence was not particularly relevant to the matters in issue in the trial;
(ii) was not an exhibit or otherwise in evidence in the trial; and
(iii)could not properly have formed the basis of any adverse finding against the father.
(e)At paragraph 167 of the reasons for judgment, the learned trial judge refers to evidence that the father had not told [Dr L] about his inability to bond with [the child] or that when he held [the child], he felt nothing. There was no evidence given in the trial about this matter.
(f)At paragraph 260(f) of the reasons for judgment, the learned trial judge makes a finding of fact that “the father has not displayed any capacity to truly care for someone other than himself”. The evidence given in the trial does not support this finding.
(g)At paragraph 267 of the reasons for judgment, the learned trial judge refers to evidence of a claim by the mother that the father and the paternal grandmother’s opposition to vaccination, and other medical procedures, stems from the religious practices of the family of the father. This was not the evidence given by the mother in the trial.
Dealing with the first complaint, the finding the primary judge recorded at [88] must be read with the entirety of the primary judge’s discussion and findings on the topic of “[t]he final separation” commencing at [73]. At [84] and [85] the primary judge recorded:
84.The mother started packing her car and noticed that the car seat had been removed. The police had to retrieve the seat from the father. When the mother tried to start her car it would not turnover. The mother opened the bonnet and the police officer noticed that the battery terminal and fuse were missing.
85.The police went and spoke to the father and the father eventually returned the battery terminal and fuse to the mother. The police officer was able to fix the car temporarily so that the car would start and that the mother could drive it away.
This ought also be read with the transcript of the father’s cross-examination on the topic as follows:
[COUNSEL FOR THE MOTHER]: That’s right. And then she went to start her car and found the car wouldn’t start; do you recall that?
[THE FATHER]: ---I do recall that, yes.
[COUNSEL FOR THE MOTHER]: And when the bonnet was popped by the police officer who was accompanying her, the police officer found that the engine had been tampered with; you would agree with that?
[THE FATHER]: ---It was not the engine. It was the battery, but I do agree.
[COUNSEL FOR THE MOTHER]: And the fuse?
[THE FATHER]: ---The – the fuse had blown.
[COUNSEL FOR THE MOTHER]: Yes. And you were then confronted by the policeman or police person who asked you to return the missing parts that were associated with the engine?
[THE FATHER]: ---And I complied.
[COUNSEL FOR THE MOTHER]: You had taken them from the engine, hadn’t you?
[THE FATHER]: ---I had blown – simply blown the fuse to the battery terminal.
[COUNSEL FOR THE MOTHER]: And you took the battery terminal off, didn’t you?
[THE FATHER]: ---I did, yes.
[COUNSEL FOR THE MOTHER]: And the reason you did that was you wanted to frustrate [the mother] from getting her motor vehicle?
[THE FATHER]: ---The battery terminal was required to come off in order for the fuse to be removed. There’s an inline fuse that – there’s an inline fuse on the battery, and the terminal was required to come off.
[COUNSEL FOR THE MOTHER]: And the reason that you tinkered with the inline fuse was to prevent her from using the motor vehicle?
[THE FATHER]: ---The fuse wasn’t tinkered, it was blown.
[COUNSEL FOR THE MOTHER]: Sir, you weren’t attempting to fix it, were you?
[THE FATHER]: ---I was, yes. I had blown – I had blown the fuse trying to jump start another vehicle.
[COUNSEL FOR THE MOTHER]: I see. All right. So you didn’t tell her about this when she arrived to collect her vehicle?
[THE FATHER]: ---I was confined to the – the office by - - -
[COUNSEL FOR THE MOTHER]: Sir, you did not tell her about this when she went to collect her vehicle?
[THE FATHER]: ---I did not, no.
[COUNSEL FOR THE MOTHER]: You didn’t volunteer this to the police who were accompanying her?
[THE FATHER]: ---I was – I was assisting with the police.
[COUNSEL FOR THE MOTHER]: You did not volunteer this information about the vehicle not starting to the police, did you?
[THE FATHER]: ---When the police asked about the car I did inform them that it wouldn’t start.
[COUNSEL FOR THE MOTHER]: When they discovered that it wouldn’t start they came to you and asked you for the missing pieces, didn’t they?
[THE FATHER]: ---That is correct, yes.
[COUNSEL FOR THE MOTHER]: Yes. And my question remains unanswered. You did not volunteer this information to the police when she came to collect her vehicle?
[THE FATHER]: ---I short, no.
[COUNSEL FOR THE MOTHER]: Thank you. And the reason you did this, sir, I suggest to you, as with the day before, you wanted to frustrate her getting the vehicle?
[THE FATHER]: ---That is incorrect.
(Transcript 25 May 2020, p.18 line 1 to p.19 line 2)
Whilst it is true that the father did not in his oral evidence infer the involvement of the “pacific islander” in this particular event and the primary judge was in error in expressing that particular inference, plainly the primary judge did not accept that there was an innocent explanation for the father’s interference with the vehicle. The drawing of an inference by the primary judge was plainly open given the evidence referred to, allied with the numerous instances where the primary judge did not accept the reliability of any evidence the father gave, or his credibility generally, and his preference of the mother’s evidence.
The subject error of fact of the primary judge was wholly immaterial (see, De Winter and De Winter (1979) FLC 90-605).
Next, the father takes issue with the primary judge’s comments in relation to the effect of travel on the child at [122]. For context, the primary judge recorded:
120. The father now lives at [F Town] and the mother still lives at [D Town]/[E Town]. That is a distance of more than 600 km and it is an approximate seven hour drive between the two residences. Neither the mother nor the father are particularly ‘flush with funds’.
121. If either party drives between the residences, there really needs to be a deal of planning. If [the child] is travelling by car, it means that he will have no less than seven hours in a car if there are no stops along the way.
122. A child travelling those distances for those length of time is far from an ideal situation. At his tender age, it is doubtful that [the child] would have a great disposition upon arrival.
It is the father’s position that, other than evidence provided by the family report writer that the child would likely find the trip unpleasant, there was no direct evidence as to how the child actually coped with the travel.
The mother submits that it would be common knowledge that any child under the age of two (as the child was then) would not have a great disposition after a long trip, but further that:
a)The father accepted that the child would be “screaming with frustration at having to undergo such a trip for the purposes of seeing [the father]” (Transcript 25 May 2020, p.28 lines 11–15); and
b)Dr M considered that the child would be “tired and irritable upon getting to the other end [of the trip]” (Transcript 2 June 2020, p.252 lines 33–34).
It may also be noted that during cross examination by counsel for the mother, the father admitted that he himself had not undertaken the trip between E Town and F Town with the child since prior to separation, and the mother accompanied him on those trips (Transcript 25 May 2020, p.9 line 35 to p.10 line 7).
The primary judge obviously took account of the evidence of Dr M in recording:
191.He acknowledged that, if [the child] were being driven, he would be undertaking a journey of approximately eight hours or more. Whilst such a trip may be arduous, [Dr M] was not of the view that such a trip would necessarily dampen the child’s enthusiasm for time with his father. [Dr M] said that there had to be a balancing between the rigours of the journey and the maintaining of a meaningful relationship between [the child] and his father.
It was well open to the primary judge to conclude the finding at [122] in these terms:
122.A child travelling those distances for those length of time is far from an ideal situation. At his tender age, it is doubtful that [the child] would have a great disposition upon arrival.
There is no merit in this complaint.
The complaints particularised in subparagraphs (c), (d) and (e) of Ground 3 respectively reference paragraphs within the reasons where the primary judge addressed the topic “[m]ental [h]ealth of the [f]ather”. That complete discussion is relevant and is as follows:
157.The mental health of the father was put into issue because of the suicide attempt and what had been said by the father to [Dr N]. It also emerged that the father had ongoing problems with “night terrors”. He described lashing out in his sleep and unconsciously hitting people nearby. It also emerged that the father witnessed an incident for which he has made a claim of “nervous shock”.
158.The father produced a report by a consultant psychiatrist, [Dr L]. The “report” is really correspondence answering questions posed to the doctor by the solicitors for the father.
159.The doctor reported that the father was referred to him by the general practitioner of the father because the father was feeling “empty and emotionless”. The doctor saw the father on five occasions (25 January 2019, 23 July 2019, 6 August 2019, 31 October 2019 and 16 April 2020).
160.The doctor opined that the father had symptoms that were consistent with major depression of moderate severity. He said that over time, the father had engaged in treatment and had achieved remission of his symptoms. He said that he had initially prescribed medication to the father but had now directed him to stop the medication.
161.The doctor stated that the father has a good understanding of his illness and is willing to seek help when he feels that he is not coping. The doctor reported that the father’s mental state was stable and that he was not displaying any active symptoms of mental illness. He reported that the father had good insight into his mental health and that he would seek appropriate help to address any distress he felt.
162.The doctor reported that he had discussed with the father how to monitor his mood, especially if there is an increase in stress from difficult life events. He said that the father understands that, if his mood goes down, he then needs to seek help early.
163.Whilst this report was very encouraging, it was clear when [Dr L] gave evidence before me, that the father had not disclosed a number of issues to the doctor. The father first consulted [Dr L] after the mother had first left. There were no discussion of the issues that the father had been discussing with [Dr N]. The report discloses very general discussions. It seemed to me that the purpose of the referral to [Dr L] was for the father to be prescribed medication.
164.After the suicide attempt, the father saw [Dr N] on two further occasions in February 2019. He did not see [Dr L] again until July 2019. On that occasion, the father said to the doctor that his relationship with the mother declined and she went back to stay with her family in February 2019. The father told the doctor that he found out later that the mother was having an affair. He told the doctor that the mother called him to ask him to remove his name from [the child’s] birth certificate. The father told the doctor that he felt suicidal and contacted the men’s helpline and then took an overdose.
165.[Dr L] was not told the full story. He was not told of the existence of [Ms Q]. He was not told that it was his (the father’s) request of the mother to remove his name from the birth certificate. He was told that the mother was having an affair when she was not. The father did not tell [Dr L] about his “night terrors” or his “nervous shock”.
166.In his evidence before me, [Dr L] said that these were issues that did affect the mental health of the father and that he ([Dr L]) would have looked at these issues if he had been informed of them.
167.But those issues are quite minor. The father has not told [Dr L] about his inability to bond with [the child] or that when he held [the child], he felt nothing. He has not told [Dr L] about family violence he has inflicted on the mother. He did not tell [Dr L] about destroying and taking the property of the mother or interfering with the mechanism of her car. But most importantly, he did not tell [Dr L] that he placed a pillow over [the child’s] face.
168.Whilst [Dr L] has painted a very good picture of the father’s current state of mental health, without having all of the information at hand, I cannot put as much reliance upon the evidence of [Dr L] as the father would have me.
Given that the primary judge himself described at [167] any issue about “night terrors” or “nervous shock” as being “quite minor”, nothing of substance can turn on those references.
As to “night terrors” the mother provided this evidence at paragraph 24 of her trial affidavit filed 29 April 2020:
[The father] had also punched me in the head on another occasion whilst I was sleeping in around August 2018. I was extremely upset and frighted. When I asked [the father] about it the next day he said to me “I didn’t even know that I did that, maybe I just did it in my sleep”. [The father] told me that something similar had happened to his previous girlfriend “[Ms S]”. He told me “while [Ms S] was asleep, I hopped on top of her and started punching her in the face. I didn’t even realise I was doing it, until she started screaming”.
(As per the original)
In the course of the father’s cross-examination on this topic (immediately following the father’s denials of his assaults upon the mother which denials were rejected by the primary judge as untruthful) the following exchanges occurred:
[COUNSEL FOR THE MOTHER]: Thank you. Now, she alleges that in – this is paragraph (24) if your Honour pleases.
That you punched her in the head in August of 2018 when she was asleep; in around August 2018. Do you recall that allegation?
[THE FATHER]: ---I recall the allegation, yes.
[COUNSEL FOR THE MOTHER]: And she then says that:
I asked [the father] about it the next day. He said, “I didn’t even know that I did that. Maybe I just did it in my sleep”.
Is that a correct reporting of a conversation you had in around August of 2018 with [the mother]?
[THE FATHER]: ---Yes, I did say those words, yes.
[COUNSEL FOR THE MOTHER]: Thank you. And she then goes on to say:
[The father] told me that something similar had happened to his previous girlfriend, [Ms S].
That’s correct?
[THE FATHER]: ---Yes, that’s correct, yes.
[COUNSEL FOR THE MOTHER]: Thank you:
He told me, “While [Ms S] was asleep, I hopped on top of her and started punching her in the face. I didn’t even realise I was doing it until she started screaming”.
That’s correctly reported?
[THE FATHER]: ---That’s how she had reported it. However, that is not how that happened.
…
[COUNSEL FOR THE MOTHER]: So the conversation I just read to you, you say is incorrect, incorrectly reported or is it something like that?
[THE FATHER]: ---It’s not 100 per cent true if you’re wanting to accept my statement.
[COUNSEL FOR THE MOTHER]: Would you kindly indicate in what way it’s inaccurate?
[THE FATHER]: ---During my relationship with [Ms S] ….
[COUNSEL FOR THE MOTHER]: Well, I’m referring – I’m sorry to stop you. I’m referring to the conversation that you reportedly had with [the mother]. Can you confine your answer to that?
[THE FATHER]: ---Okay. I’m not sure what I would have said to [the mother] in regards to this matter.
…
[COUNSEL FOR THE MOTHER]: Now, did you seek any treatment from any medical professional about the possibility that you hit [the mother] in the head when you were asleep and didn’t realise you were doing it?
[THE FATHER]: ---I’m not 100 per cent sure on that. I may have - - -
(Transcript 25 May 2020, p.70 line 23 to p.72 line 3) (Emphasis added)
In the course of the father’s re-examination by his counsel on this topic there was this exchange:
[COUNSEL FOR THE FATHER]: Yesterday, [the father], you were cross-examined about a story that you had told [the mother] regarding an incident with a previous partner, [Ms S]. Do you recall that particular incident that you gave evidence about?
[THE FATHER]: ---I do.
[COUNSEL FOR THE FATHER]: Now, what, in fact, did occur between you and [Ms S] in relation to an incident like that?
[THE FATHER]: ---Since I was young, I – well, sorry, when I was younger, I did have, as my Mum would call them, “night terrors”. I would have deep sleep moments where I would scream, kick and I – I needed to be woken up. That was the case, I think it was about eight years ago now, that happened. I was in a – obviously sleeping. [Ms S] was familiar with – with the – I guess you would say, night terrors, and in – in fact she got on top of me and she smacked me out of it and in – in – in growing up, that was generally, nine out of 10 times, how you would wake me up.
[COUNSEL FOR THE FATHER]: Right. And what, if anything, about what you’ve just told the court there did you relay to [the mother] during the course of your relationship?
[THE FATHER]: ---I relayed that complete story to [the mother].
(Transcript 26 May 2020, p.121 lines 23–38)
It was plainly open to the primary judge to record the finding that he did on the topic of “night terrors” and this complaint has no substance.
With respect to “nervous shock” as the reference in the father’s submissions confirm, the father gave evidence that he suffered nervous shock from a workplace incident for which he received medical treatment and in respect of which he was pursuing a legal claim. It was entirely accurate, then, for the primary judge to record in a history concerning the father’s mental health the fact that he had suffered from nervous shock. There is no substance in this complaint.
With respect to the complaint about the findings the primary judge recorded at [167] concerning the evidence of [Dr L], review of the transcript confirms the accuracy of that which the primary judge records about the evidence provided by [Dr L] and, in particular, what is recorded at [163] regarding that doctor being uninformed about numerous matters.
Without detailing all that is contained in the transcript concerning this doctor’s evidence, it is to be noted that at the conclusion of his cross-examination and
re-examination the following exchange occurred between the primary judge and the witness:
[THE PRIMARY JUDGE]: Doctor, I just want to ask you a question?
[DR L]: ---Yes.
[THE PRIMARY JUDGE]: In your reports, you talk about the initial assessment on 25 January 2019 - - -?
[DR L]: --- That’s right.
[THE PRIMARY JUDGE]: - - - that [the father] reported low mood for three weeks, that he was empty and lost, that he couldn’t enjoy the time that he spends with his son?
[DR L]: ---That’s right.
[THE PRIMARY JUDGE]: Okay. And you put this:
He was also feeling conflicted about his current relationship and was feeling guilty because of the way he feels.
[DR L]: ---That’s right. So he – he felt guilty because he – he had a job. He was married, and, you know, he had a beautiful son. But he just could not enjoy that and that that was basically the nature of his guilt. So he was feeling guilty that in spite of, you know, asking – or getting whatever he wanted, he still could not enjoy, you know, the – his life to the fullest.
[THE PRIMARY JUDGE]: Okay. Now, what did he tell you about the current relationship?
[DR L]: ---At that point of time, he didn’t mention much about the relationship from my notes, from the first – just give me a second. So he basically mentioned about the – the prior relationship which happened 18 months prior to that, and where, you know, it kind of – you know, it had really affected him badly. But he didn’t mention anything about the – his current relationship, or I have not recorded anything in my notes about the current relationship.
(Transcript 26 May 2020, p.146 lines 20–45)
As is noted at [158] the written report of the consultant psychiatrist comprised correspondence answering questions posed to the doctor by the solicitors for the father. There is obviously no suggestion that those questions, or any history the father provided, included the nature and extent of the father’s family violence including his coercive control of the mother by physical, emotional and financial means, as found by the primary judge.
When the relevant transcript of the evidence given by this witness is read as a whole it is patently obvious that Dr L was not provided with all relevant information.
Plainly, the point of the primary judge’s discussion is to explain his Honour’s reluctance to give ready acceptance to this doctor’s opinion as to the father’s mental health.
There is no substance in these complaints.
All that needs to be said about the primary judge’s finding at [260(f)] is that it was entirely open to the primary judge having had the benefit of the trial and examining the issues as they unfolded at a trial to conclude as he did in the reasons. In order for this Court to interfere with a judge’s finding of fact made when the judge enjoys advantages not available to this Court, we would need to be satisfied that the subject finding is demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or is “glaringly improbable” or “contrary to compelling inferences” (see, Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43] and Lee v Lee (2019) 266 CLR 129). Nothing to which we have been taken demonstrates that.
The final particular in relation to this ground relates to the finding of the primary judge at [267] as follows:
267.The mother has claimed that the father was unwilling for [the child] to be vaccinated. She said that the paternal grandmother was vehement in her position to [the child’s] vaccination. The mother claims that the opposition to vaccination, and other medical procedures, stems from the religious practices of the family of the father.
Notably, at [267] no concluded finding of fact is recorded. That paragraph simply records the mother’s evidence. Likewise the primary judge records the following as to the father:
268.The father has submitted that, in the end, he did not stand in the way of [the child] being vaccinated. He claims that this illustrates that he and the mother can come to decisions on these issues.
(Emphasis added)
Plainly, the primary judge referred to this episode as an example of difficulty in decision making, but as the reasons record the primary judge noted at [269] many other issues upon which “the parents do not agree”. It is in that paragraph that the primary judge records, with apparent acceptance, the mother’s view that the father would take the opportunity to bully and coerce the mother if she needed to discuss and negotiate a resolution on issues that arise.
Against the findings recorded by the primary judge on the issue of family violence and the father’s propensity to attempt to coerce and control the mother, that finding was plainly open.
Ground 4
GROUND 4 – In making the Orders dated 19 June 2020, the learned trial judge erred by relying on and giving weight to matters which were not put to the father during the trial.
PARTICULARS
(a)At paragraphs 49, 50, 52, 54, 56-58 and 64-65 of the reasons for judgment, the learned trial judge refers to certain matters detailed in [Dr N’s] patient notes (produced under subpoena) about things that had been said to and by the father.
(b)Although [Dr N’s] notes were tendered into evidence at the conclusion of the trial, the nature of the tender was limited to the extent that they had been referred to and adopted by the father during cross examination, not as to the truth of the contents of every statement referred to in the notes.
(c)The matters referred to at sub-paragraph (a) above were never put to the father in cross examination.
(d)As a matter of fairness to the father, the matters referred to at subparagraph (a) above should have been put to him, before those matters formed the basis of adverse findings against him.
It is uncontroversial that the father attended upon a treating psychologist, Dr N, upon a referral from his general medical practitioner for some six sessions of therapy in January/February 2019. As the primary judge noted those sessions overlapped the father’s suicide attempt in February 2019.
Review of the trial transcript reveals that the father and his legal representatives were well aware that Dr N’s notes of those consultations had been produced to the Court via subpoena in advance of the trial. Equally, that the parties had been afforded the opportunity to inspect those documents. The point of emphasis here is that the father and his legal representatives could not have been in any doubt about the contents of Dr N’s notes.
In no affidavit, nor indeed in his oral evidence at trial, did the father raise any challenge as to the accuracy of Dr N’s notes in any respect. As will shortly be referred to, the father’s cross-examination about his consultations with Dr N afforded him ample opportunity to raise any issue or complaint about accuracy of the notes.
This lack of any challenge by the father at trial as to the accuracy of the notes persists on appeal. That is, nothing raised in this ground including the particulars in support of it, nor in the father’s Summary of Argument filed 30 October 2020 addressing this ground identifies how, or in what respect, the accuracy of Dr N’s notes is in question. The father advances no Application in an Appeal to adduce further evidence on appeal as to questions of fact to support any contention to the effect that there is any material inaccuracy in the notes as referred to by the primary judge.
The father acknowledges that Dr N’s notes as a whole were tendered into evidence. No objection was raised by the father at the trial to such tender. We are not directed to anything in the trial transcript to support the proposition that the primary judge proceeded on the basis that the tender of the notes as a whole was in fact somehow strictly limited to only those notes specifically referred to by counsel in the course of cross-examination by the father and accepted by him.
This complaint can be seen to devolve into the proposition that despite Dr N’s notes being admitted into evidence as a whole, the primary judge’s reference to them was to be restricted to those parts of the notes about which the father was specifically cross-examined. It is submitted, in reliance upon Kuhl v Zurich Financial Services Ltd and Anor (2011) 243 CLR 361 at 388 (“Kuhl”), that the primary judge was in error in relying upon anything contained in the notes which was not specifically put to the father in cross-examination.
This reliance is misconceived. Kuhl rests on the principle that if the evidence of a witness is to be impeached on the contention that the witness has suppressed evidence, the witness must be afforded the opportunity when giving evidence to make any explanation the witness might make to address that allegation. In Kuhl it was only in final address that it was alleged against the plaintiff for the first time that in giving his evidence the plaintiff deliberately withheld the truth of how an accident had occurred.
That is far removed from this case where each subject addressed by the primary judge in the paragraphs particularised in support of this ground were part of the mother’s case. That is, independently of any notes of Dr N, the mother advanced the same propositions or subject matter in her case.
The combination of the mother’s affidavit evidence at trial and the feature that Dr N’s notes were produced on subpoena and were the topic of discussion about tender bundles before the primary judge, could not have left the father in any doubt that if he wished to raise any question concerning the accuracy of the notes he ought do so. In other words, the father plainly had an onus to raise any specific complaint about the accuracy of the notes well prior to the notes being tendered into evidence.
In any event, as will be discussed, the primary judge did not make any use of the notes to impeach the father or his evidence in any material respect. That is, the contents of the notes were not used to impeach any competing version, or evidence, of the father to contrary effect.
Equally misconceived is the proposition in support of this ground that none of the matters particularised in the identified paragraphs of the reasons were the subject of any cross-examination of the father at trial.
In the course of the father’s cross-examination by counsel for the mother in relation to the sessions with Dr N there was this exchange :
[COUNSEL FOR THE MOTHER]: I see. Thank you. Now, I want to suggest to you sir, that you disclosed to [Dr N] various things about your life during your discussions with her in those six sessions; do you agree with that?
[THE FATHER]: ---That’s correct. Yes.
[COUNSEL FOR THE MOTHER]: And you were full and frank with her in what you told her?
[THE FATHER]: ---Yes. There was some discrepancies at first, but later on in the sessions, we – we jumped those hurdles.
[COUNSEL FOR THE MOTHER]: Yes. And in particular, you focused with her on the reasons for your feeling anxious, having panic attacks, and feeling detached from [the child]?
[THE FATHER]: ---That’s correct. Yes.
(Transcript 26 May 2020, p.86 lines 18–26)
That exchange followed numerous specific propositions being put to the father obviously emanating from counsel’s use of Dr N’s notes. Notably at no point did the father raise any dispute as to the matters of fact being put to him in cross-examination, in circumstances where it is obvious that counsel was referring to, and reading from, the notes for the propositions put.
Review of the transcript reveals that whilst the father was not taken “line by line” through the notes the cross-examination from them was extensive. It included the father’s reporting to Dr N of his anxiety and depressive symptoms (described as severe); his feelings of detachment from the child; his relationship issues with each of the mother and a person called Ms Q and his suicide attempt. Counsel put to the father from Dr N’s notes each of her diagnoses of the father, which he accepted. It is apparent that the father was questioned about each of his six sessions with Dr N and the father’s answers confirmed the accuracy of Dr N’s notes in each instance. At no point did the father contest the accuracy of the notes despite having ample opportunity to so do. Once the notes were tendered into evidence it was legitimate for the primary judge to have regard to this relevant evidence and to make use of the notes. The primary judge would have been in error to disregard anything of material relevance contained in the notes.
We note in passing that by s 69ZT of the Act, relevant parts of the Evidence Act 1995 (Cth) (“the EA”) did not apply to these child-related proceedings unless the Court decided to apply them. But even if the relevant provisions of the EA were applied, we are satisfied that the requirements in s 48(1)(a), (b) and (e) for proof of Dr N’s notes were met.
It bears emphasis that when the reasons for judgment of the primary judge are read as a whole, the father’s evidence on the central issues in the case earlier identified was rejected, and his credibility was impeached, not by anything contained in Dr N’s notes.
There is no substance in this ground.
We repeat that even if, contrary to our conclusion that the primary judge made no error in the respects contended for by Ground 4, the outcome of this case rested upon the central findings earlier identified. It is inconceivable that it could be concluded that even if the primary judge made any error in the use made of the notes that this results in a miscarriage of justice necessitating a rehearing. As explained in Lane & Nichols at [73]-[79], by reference to Conway v The Queen, the dismissal of an appeal is authorised on the basis that no substantial miscarriage of justice is demonstrated. That is the position here.
Conclusion and costs
There being no merit in any ground of appeal the appeal is to be dismissed.
The mother, who is funded for this appeal by the Legal Aid New South Wales, did not seek any order for costs of the appeal in the event the appeal was dismissed. It is thus appropriate to order that there be no order as to costs of the appeal.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Watts JJ) delivered on 17 December 2020.
Associate:
Date: 17 December 2020
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