Seaward and MacDuff
[2020] FamCAFC 72
•3 April 2020
FAMILY COURT OF AUSTRALIA
| SEAWARD & MACDUFF | [2020] FamCAFC 72 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals from orders providing for him to have no time and no communication with the subject children unless at the request of the children – Where the children were aged 13 and 11 years at the time of hearing – Where the children voiced strong opposition to spending time with their father – Where the children have a close, loving and dependant relationship with their mother – Where the trial judge made adverse findings about both parents – Where the mother has permitted alienating behaviours, attitudes and perceptions to be demonstrated to or in the presence of the children at the expense of the children’s relationship with the father – Where the father has consistently displayed an inability to conduct himself and manage his relationship with the children without destabilising their lives and relationships – Where the trial judge found that even if orders were made for the children to spend time with the father, the children would not attend – Where the father alleges the trial judge made errors of fact, denied the father procedural fairness, displayed bias, attributed inadequate weight to certain evidence and gave inadequate reasons – Where none of the father’s challenges are made out – Appeal dismissed – Where there is no order as to costs. |
| Family Law Act 1975 (Cth) ss 60CC, 68L, 69ZX(3), 117(4) Family Law Rules 2004 (Cth) r 15.49 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 King and Finneran (2001) FLC 93-079; [2001] FamCA 344 Seaward & MacDuff [2013] FamCA 485 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Seaward |
| RESPONDENT: | Ms MacDuff |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| APPEAL NUMBER: | EAA | 116 | of | 2017 |
| DATE DELIVERED: | 3 April 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Kent & Watts JJ |
| HEARING DATE: | 27 February 2019; Further submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 October 2017 |
| LOWER COURT MNC: | [2017] FamCA 848 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
The appeal from the orders made on 13 October 2017 be dismissed.
There be no order as to costs.
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 Seaward & MacDuff 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 SYDNEY |
Appeal Number: EAA 116 of 2017
File Number: SYC 2177 of 2011
| Mr Seaward |
Appellant
And
| Ms MacDuff |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Seaward (“the father”) and Ms MacDuff (“the mother”) are the parents of B (born 1998 and currently aged 21 years), J (born 2004 and now aged 16 years) and Z (born 2005 and currently aged 14 years).
The parents have an extensive history of litigating parenting issues since proceedings were instituted by the father in the then Federal Magistrates Court in early 2011. That history includes a six day trial of parenting proceedings heard by Ryan J in 2012/2013 resulting in final parenting orders that were made on 19 June 2013.
Ryan J’s reasons for judgment (Seaward & MacDuff [2013] FamCA 485) in support of those orders assume some prominence in the subsequent proceedings which are the subject of this appeal, and further reference will be made to them. Suffice to note here that Ryan J made final orders providing, in summary, that the mother have sole parental responsibility for the children and that they live with her and spend only limited supervised time with the father – for three hours per calendar month.
A trial of further parenting proceedings was heard by Le Poer Trench J (“the trial judge”) over some eight days in August and September 2017 and the trial judge made final parenting orders on 13 October 2017 with respect to the two younger children, the oldest child having attained her majority in 2016.
It was the father’s case at trial that, in summary, the children had ceased spending time or communicating with him as a result of the alienation of him in the mother’s household. It was the mother’s case at trial, in summary, that the father’s conduct had brought about the children’s determination not to see or communicate with him.
The trial judge determined that it would not be in the best interests of the children for orders to be made compelling them to spend time with the father. His Honour made what were described as a “raft” of orders directed to giving “the children the best chance they have (if any) on restoring a proper parent/child relationship with their father” (at [582]) and which his Honour considered “necessary to promote the best interests of the children by creating an avenue for them to have a meaningful relationship with their father in the future” (at [583]). Those orders included orders for:
·The children to be engaged in therapeutic counselling with a psychologist;
·The provision of the children’s school documents (school reports etc.) to the father;
·The mother to provide monthly reporting to the father of the children’s activities;
·The father to send letters to the children on a monthly basis; and
·The mother to facilitate telephone calls and meetings between the children and the father as requested by the children.
The father appeals from those orders. The orders sought by the father on appeal as stated in his Amended Notice of Appeal filed on 28 September 2018 are:
1. All orders dated 13 October 2017 be set aside.
2.The father and the children attend an appropriate course on reunification.
3.The matter be
reheardremitted for rehearing on the identified matters or in the alternative shared custody and shared parental responsibility be ordered.4. Contact with the paternal family be ordered.
5. School holiday time be ordered.
6.The current
presentICL and his instructed counsel be permanently removed from any further involvement in this matter.(As per the original)
The father’s appeal is opposed by each of the mother and by the lawyer appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”), to independently represent the interests of the children in the proceedings (“the ICL”). The ICL performed that role in the earlier parenting proceedings determined by Ryan J in 2013.
For the reasons which follow this appeal must be dismissed.
Relevant factual context
In circumstances where as at the trial the parents had been separated for more than a decade, there is an extensive post-separation history of facts and events, not all of which is it necessary to recount.
As the subject proceedings before the trial judge were “child-related proceedings” within the meaning of Division 12A of Part VII of the Act, s 69ZX(3)(b) permitted the trial judge to adopt the earlier findings of Ryan J, which were not the subject of any appeal. The reasons of the trial judge contain numerous references to the reasons and findings of Ryan J and it is clear that the trial judge adopted them (see, for example, [24]).
The reasons for judgment of Ryan J delivered on 19 June 2013 contain an extensive detailing of the relevant factual history to that point. Likewise, the trial judge’s reasons detail subsequent events. As noted, we need not repeat the entire factual history contained in the respective reasons for judgments referred to, but the following facts or findings are drawn from those sources. Unless otherwise stated, reference to paragraph numbers of reasons are references to the reasons of the trial judge.
The parents commenced cohabitation in 1995 and separated in November 2006 (at [25]). As at November 2006, the children were aged about 7 years; almost 2 years; and about 12 months respectively.
Following that separation it appears that the parents had something of an “on again/off again” relationship but at least a largely cooperative parenting arrangement, in that the father spent regular and frequent time with the children, until his incarceration in December 2009. At [33] of her reasons, Ryan J records:
33.… In early 2009, the father went to his pregnant accountant’s office where he assaulted her. As a consequence, he was charged with assault, larceny and robbery. He was shocked to be convicted and both he and the mother were staggered when he was sentenced to a term of imprisonment. So strong was their view that he would escape imprisonment that [the oldest child] was present when the verdict was announced and he was taken into custody. The father received an overall sentence of fifteen months which was served in full.
The trial judge noted that it was unclear which of the offences with which he was charged the father was convicted of, but noted also that he was initially sentenced to 15 months incarceration and had served 15 months prior to his appeal against sentence successfully reducing that sentence to six months (at [26]–[27]). During that 15 months, the two younger children were not told of the father’s incarceration and did not see him, although they had telephone contact.
Whilst the father was in prison, the mother rekindled a relationship she had previously with one Mr MacDuff and, soon after, they married. It is readily apparent that this dynamic had a profound impact on what had been a cooperative parenting relationship previously. The father reacted to news of the mother’s relationship with “anger, abuse and threats” and wrote from prison in a threatening manner using “vile” language. At that point the parental relationship was reduced to “beyond repair” (at [28]–[29]).
In January 2011, whilst the father was still in prison, the mother and children moved from Sydney to live in Town U on the Central Coast of New South Wales with Mr MacDuff where he had purchased a residence for the family. The father communicated his opposition to that from prison in scathing terms (at [30]).
The father was released from prison on parole in March 2011. From then until August 2011, the children spent alternate weekends with the father and time during school holidays. However, the father commenced parenting proceedings shortly after his release from prison seeking that the children live with him and he also sought injunctions restraining the mother from leaving the children in her husband’s care (at [32]–[33]).
On 20 August 2011, the father retained the children having taken the two younger children to the police to report complaints of alleged mistreatment of them by Mr MacDuff. These complaints were later retracted by the children with them advising the police that they had lied about being ill-treated by Mr MacDuff and that they had been told by the father to say that Mr MacDuff had ill-treated them, an allegation the father denied (at [37] and [40]).
On 22 August 2011, the mother obtained a recovery order in an application supported by the ICL. There was an interim injunction made against the mother in relation to Mr MacDuff. The children were returned to the mother with the father’s time being suspended. Since then, the oldest child B ceased spending time with the father and has refused to see or communicate with him (at [35]).
Between August 2011 and until orders were made in February 2012, the father spent no time with the two younger children. Orders were then made for the father to have supervised time with those children for three hours per week and that time commenced in February 2012 (at [41]). There was a further hiatus in the children spending time with the father in February 2012 as a result of the father breaching an order that he not discuss the proceedings or any issues arising out of the proceedings with the children. However, in late March 2012 the father’s time with the children, as supervised, was reinstated (at [42]–[45]).
The trial judge refers at [48] to Ryan J having set out the detail of text messages sent by the father to B in September 2011 and on Christmas Day 2011 noting “[h]er Honour concluded that ‘[the father’s] actions demonstrate a lack of judgment (sic) and … warrants strong criticism’”.
At [49], the trial judge, referring to evidence before Ryan J, notes that on 30 May 2012 the father sent a text to B which was an unqualified apology that had been recommended by Dr R, the child psychiatrist appointed as a Court expert in the proceedings before Ryan J. At [50] and [51], the trial judge refers to an event on 17 September 2012 where the father approached B at the X Area Railway Station on her way home from school. It is clear from the police statement B provided that she was fearful of the father by reason of his conduct towards her on that occasion.
As already noted, the trial judge adopted, and made extensive reference to, the earlier findings made by Ryan J in support of the 2013 parenting orders her Honour made. Those findings therefore provide important context to the trial judge’s own findings. Taken from Ryan J’s reasons for judgment delivered on 19 June 2013, the following findings can be seen as central to the 2013 orders her Honour made (the following paragraph references are to paragraphs of Ryan J’s reasons for judgment):
a)“… [W]hat was once a cooperative parental relationship is now riven with mistrust and antipathy such that there is not a scintilla of hope of them establishing effective communication or being able to cooperate in relation to their children. It is the terrible parental relationship which now poses a potent risk of harm to the children” (at [5]);
b)In the context of discussing the children’s alleged disclosures in August 2011 concerning Mr MacDuff, Ryan J recorded a finding that the father was an unreliable witness (at [59]);
c)Interim orders made on 2 February 2012 for the children to spend supervised time with the father were subject to conditions including a condition in Order 5(c) of those orders that the father “not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so”. Ryan J recorded that a supervisor’s report of 7 March 2012 revealed a breach by the father of Order 5(c) in that the father questioned the children about their possible mistreatment by the mother’s husband and her Honour recorded in relation to the father “[h]is breaches of orders revealed in this hearing were deliberate and demonstrate that he cannot be relied upon to abide orders with which he does not agree” (at [88]);
d)At [91] of her Honour’s reasons, Ryan J quoted, with apparent approval, the recommendations of the single expert psychiatrist Dr R including recommendation (9) as follows:
(9)Should there be further allegations by [the father] of abuse against the mother or [the mother’s husband] then this would be a worrying development. The father appears to be consumed with anguish about his losses. To date I don’t believe he has much insight into the fact that he could be damaging the children by the way his pressuring the children to make allegations. [B] is also being damaged I believed by the father’s actions. She is old enough to decide if she would like to see the father. This would only be possible if the father and she can reconcile with the support of the mother. [B] needs an apology from the father because she felt rejected by him. Should the father continue to pursue allegations against [the mother’s husband] or the mother I believe that this would be extremely detrimental to the children. In this context it would be very sad for the children who would then need to have very restricted or recognition-style contact with the father perhaps a few hours every few months. (expert’s report, pp 28-29)
e)At [92] of her Honour’s reasons, Ryan J quoted, again with apparent approval, the expert’s oral evidence concerning the father’s attempt to subpoena B to give evidence at the trial including this passage:
… Well, it confirms, in my view, that he is more concerned with proving his case and trying to win a legal battle, rather than be concerned about the welfare, or what might be happening emotionally, to the children.
f)Ryan J found that text messages the father sent to B in September 2011 and Christmas Day 2011 were distressing for her and “another example of [the father] putting significant pressure on the children” (at [105]–[110]);
g)Ryan J found that the father’s attempt to engage with B at a railway station in September 2012, and his following text message to her, “singlehandedly inflamed the situation with [B]” (at [120]);
h)At [207], Ryan J found that the father’s behaviour in placing his emotional needs ahead of the children’s needs was behaviour from which the children needed to be protected;
i)At [227], Ryan J found that the father demonstrated “deep animus towards the mother’s husband who, without any foundation, he [had] branded a child abuser”;
j)Ryan J found that the evidence pointed strongly against the proposition of the father being able to “conduct himself and manage his relationship with the children without destabilising their lives and relationships with the mother, her husband and their sister” (at [246]);
k)Ryan J was satisfied that the mother established that she is genuinely anxious about the father and is now afraid that if she opposes him he may react with violence and that her fear extends to fear he may harm her husband (at [282]);
l)Ryan J found that the mother established that she is able to meet the children’s emotional and psychological needs satisfactorily and in a manner which the father cannot. Ryan J concluded that the father has demonstrated a very troubling lack of understanding of the children’s emotional and psychological needs and “too often has shown that where his and the children’s needs are in conflict, he cannot be relied upon to appropriately prioritise theirs” (at [308]);
m)At [319] Ryan J recorded this:
319.[Dr R] is concerned that restricted supervised visits for the boys with the father may ultimately see their relationship fail. It is accepted that if all the future holds is monthly or quarterly visits this is a real possibility. It is a possibility that weighs heavily and as a consequence, is a style of order that is not often made. But as the facts outlined above demonstrate, unless the children’s (but given [B’s] views relevantly the boys) time with the father is carefully controlled their relationships with their mother, the mother’s husband and the pleasure the boys gain in their settled and happy lives on the Central Coast, are at grave risk. From the perspective of the children’s best interests, preservation of those relationships and the indicia of their day to day lives outweigh the high degree of risk to their relationships with the father.
n)At [329], Ryan J expressed the following by way of a conclusion:
329.The impossibly conflicted relationship between the parties and the effect this has and is likely to continue to have on the children stands in the way of anything other than limited supervised time for the boys with the father and [B] should she wish to accompany them. Only supervised time provides the children with the necessary level of protection from pressure from the father to align with him and ongoing antagonism towards the mother, her husband and the children’s lives with them. Supervision also moderates the risk that the father might speak to the boys in the accusatory manner he used in his communications with [B]. It weighs heavily that this puts their relationships with their father and paternal relatives at risk in the long term and deprives the father and paternal relatives of the opportunity for a meaningful involvement in his children’s lives. However, for this family the sad reality is that the weight of the evidence demonstrates that any other outcome jeopardises not only the children’s relationship with the mother but their stability and emotional and psychological wellbeing.
As noted, B ceased spending time with the father or communicating regularly with him in August 2011. An event subsequent to the orders made by Ryan J, which assumed significance at the subsequent trial, is B’s attendance, with her brothers, at a supervised contact visit with the father on 29 March 2014. In summary, in the presence of her brothers, B confronted the father about him not having signed the necessary forms for B to obtain a passport. At that time the mother planned to take the children on a holiday to Country OO and the father was not agreeable to that occurring. The confrontation, occurring as it did in the presence of the younger children, was obviously unfortunate. The father nominates that visit as the date the relationship between the younger children and himself changed in terms of the level of their unwillingness to interact with him thereafter (at [124]).
The orders made by Ryan J included an injunction restraining the father from contacting or approaching the children “where they live, play sport or attend school” other than to spend time with or communicate with the children as provided for in those orders (Order (15) made on 19 June 2013). That order is relevant to the trial judge’s discussion of what his Honour describes as “[t]he 15 April 2016 [Town U] townhouse incident” (at [87] and following of the reasons). In summary, on 15 April 2016, the father and his partner stayed in a townhouse unit of a friend in Town U in the same townhouse complex where the mother resided with the children. The father maintained at the trial that his attendance and consequent contact with the children and the mother was entirely coincidental, he not being aware that the townhouse complex is where the mother and children had taken up residence. For her part, the mother took this to be a deliberate action by the father and in breach of the order referred to.
The mother had separated from her husband Mr MacDuff shortly before this incident and had relocated to the subject townhouse complex. The trial judge accepted that the father was unaware that the mother and children were living in the relevant townhouse complex and thus did not intend to be in breach of the orders. Equally though, the trial judge accepted that the mother genuinely believed the father had intentionally failed to comply with orders (at [87]–[108]). Notably, the trial judge found that the mother shared her view with the children that the father had breached the Court orders (at [109]).
One centrally important consequence of this event is that from the date it occurred, 15 April 2016, the children ceased to spend even limited supervised time with the father, or to communicate with him.
Thus, as at the time of trial before the trial judge in August and September 2017, it had been well over 12 months since the children had spent any time, or had communicated, with the father.
Each of the mother and father were self-represented at trial, as they were on this appeal.
Central findings of the trial judge
By the submissions stage of the trial, the ICL sought the orders set out at [61] of the reasons. The orders proposed by the ICL included orders that:
·The mother have sole parental responsibility for the children;
·The children live with the mother;
·The mother arrange for the children to attend upon therapy;
·Injunctions directed to each parent restraining any denigration of the other;
·The mother to facilitate the children making telephone calls to the father if they express a wish to do so and the mother may monitor such telephone calls;
·If the children request to meet with the father the mother shall take steps to facilitate such a meeting, either supervised or unsupervised at her discretion.
The mother, who we repeat, was self-represented at trial, adopted the orders sought by the ICL as the orders she also sought (at [62]).
At [63], the trial judge recorded the following as to the orders sought by the father, who like the mother, we repeat, was self-represented:
63.The father provided a minute of the orders he was seeking. That minute was marked as Exhibit H1. The minute sought orders which had the following effect:
•The children and the father together undergo therapeutic intervention.
•The mother be ordered to undergo a course of therapy designed to assist her understand the impact on the children of the parental conflict. In submission the father emphasised this would include identifying the actions and words of the mother which had contributed to the children’s current circumstances.
•The time the children spend with [Mr MacDuff] be supervised or restricted unless he is involved in a continuing intensive therapeutic counselling.
•The maternal grandparents undertake an appropriate course of counselling.
•The father have supervised time with the children until the end of 2017.
•From the commencement of 2018 the parties have equal shared parental responsibility for the children and the children spend equal time with each parent.
•The children are to continue to attend their current school and should the mother choose/agree to relocate to Sydney then the parents agree upon the school the children are to attend.
•The Court recommend the mother use her best endeavours to persuade [B] to undergo counselling with the father.
The trial judge also raised and discussed later in the reasons for judgment, in the context of the father’s case of alienation by the mother, the prospect of orders for the children to live primarily with the father and other like orders.
At [70], the trial judge identified the following summary of issues to be determined:
…
·Should there be any order for the children to have face-to-face time with the father.
·What other intervention should the Court Order such as therapy/counselling for the children and the parties.
·If there is to be no face to face time for the children with the father, what other orders can be made to allow the children information about their father and the father information about the children.
·What other provisions should be made.
(As per the original)
Whilst the trial judge accepted that the children voiced strong opposition to spending time with their father, the trial judge did not accept that the Court should place substantial weight on their views (at [469]). The trial judge considered that the reasons for the children expressing such views “are probably complex and many”. The trial judge observed that some of the reasons, based upon the evidence, probably include the following (at [471]):
…
·The negative emotional environment directed against the father from the mother, [Mr MacDuff] and [B] in the home in which they live and are dependent upon.
·The difficulty in travelling from their home on the Central Coast to Sydney in order to exercise the time with their father.
·The constraints which strictly supervised time have upon the activities they can participate in with their father when they spend time with him and also the limited time which can be provided.
·The way in which the time the children spend with their father interferes with other enjoyable activities such as sport and friendships.
·The lack of any support for their relationship with their father from their mother and other members of their household such that it creates embarrassing circumstances for them such as having to tell their father they prefer [Mr MacDuff] as a father figure to him and accordingly have provided him with Father’s Day cards and presents which they have made at school.
·Having no support to write to their father or to telephone him from their mother such that they have to deal with the disappointment of the father when he does not hear from them between visits.
·Being drawn into the parental conflict in relation to passports, overseas holidays, lack of child support, cost to the mother of court proceedings.
·Being exposed to the fallout from the occasion of 15 April 2016 when the father was staying at the [Town U] units and spoke to [Z].
·Being exposed to their father’s insensitivities which has meant that at almost every occasion of time they spent with him following the 2013 orders they were questioned about matters which would have been difficult for them to answer.
The trial judge found that the children have a close, loving and dependant relationship with their mother (at [473]). The trial judge recorded a finding that the mother has permitted alienating behaviours, attitudes and perceptions to be demonstrated to or in the presence of the children “to such a level that the children[’s] resistance has crumbled and their survival instinct has led to the realisation that they cannot live in a dependant relationship with their mother and at the same time enjoy a healthy and meaningful relationship with their father” (at [477]).
The trial judge concluded that if the children were required to change residence it would be a traumatic experience for them; that they are clearly closely bonded to their mother; and they have made it clear they would resist any requirement for change (at [487]).
On the trial judge’s findings, if the children were required to spend time with their father, [J] would not participate and the mother would not be able to physically deliver him to the father. With respect to [Z], the trial judge concluded that he is so frightened of the father that there is a significant chance he would run away from the mother and thereby place himself potentially in harm’s way (at [488]).
The trial judge also found that the boys’ relationship with their sister might be adversely affected should they be required to spend time with the father given [B’s] serious estrangement from her father, and what the trial judge found to be a significant prospect that she would express her views to the boys that they should not be spending time with the father (at [489]).
The trial judge expressed a conclusion that the relationship between the father and the mother has been toxic for so long that their relationship is unlikely to ever improve. The trial judge referred to each of them being highly suspicious of the other and their motives; each demonstrating poor parenting of the children in various ways; and each appearing to have “blind spots” in their parenting which has prevented them from acting in the best interests of their children (at [518]).
Commencing at [530] of the reasons, the trial judge undertook a discussion of balancing relevant considerations under s 60CC of the Act by reference to the defined issues in the case. Within that discussion the trial judge:
a)Recorded a finding at [531] that the relationship between the boys and their father is not irretrievable, but further found:
… That is not [to] say I conclude face-to-face time for the boys with the father can resume in the near future. I conclude that it will take time and therapeutic assistance for all concerned (the father, mother and each child) before it could be reasonably predicted that two-way communication could commence which might then transition to the boys spending time with their father.
b)Accepted the mother’s evidence that she would not be able to coerce the children into accompanying her to meet with the father and also his Honour’s acceptance that to “force the boys to continue to spend time with their father in a strictly supervised environment would be counterproductive to the relationship between them” (at [542]).
c)At [552]:
Given that the ambition of the legislation, and consequently this Court, is that the children have a meaningful relationship with each of their parents, it is to that end that the Court must seek a sustainable result. I have concluded that it is presently not a viable option to order the children to spend significant and substantial time with their father. I accept the evidence of the Family Consultant and the submissions of the Independent Children’s Lawyer and the mother that the best interests of the children dictate there be a cessation of face-to-face time with the father. I am satisfied that any order which required such time to be spent would be unlikely to be complied with because the boys would rebel against their mother’s efforts to comply with the order. The Court should not make orders which are doomed to failure as it will probably lead to further litigation and I conclude it will have a significant psychological impact upon the children.
d)At [553]:
The only tenable conclusion which can be reached at this time and which can be said to be in the best interests of the children is that they cannot presently tolerate any further face-to-face time with the father. I conclude that this circumstance has arisen not solely because of the actions and words of the father but also because of the words and actions of the mother. Both the parents share responsibility for the circumstances in which these children have found themselves. Those circumstances have been significantly canvassed in these reasons.
e)At [554]:
I conclude that the personalities and resolves of each parent are such that it is not possible in the foreseeable future to undo the damage they have each done to their children even if they were desirous of doing so. I am satisfied that the mother has allowed the children to have such a negative view of their father that [Z] is in fear of him. The father has been demonised in the mother’s household. In so finding I also find that the father has provided the foundation for such a circumstance to arise. His relentless negative view of the mother and her husband has caused actions which have given them cause to be vocal about him in the hearing of the children. [B] has become effectively an ally of the mother and her husband in what has become a battle between the parental groups. In those circumstances, even the strongest bonds which may have existed between the father and the children are unlikely to last.
Having made numerous findings adverse to the mother and her parenting and to the effect that the mother has engaged in conduct having the effect of diminishing the father and the children’s relationship with him, the trial judge considered the prospect of orders changing the children’s residence or orders providing for the children to spend substantial and significant time with the father on an unsupervised basis.
In discussing that, the trial judge concluded (at [566]–[568]):
566.Given all that has been said which is critical of the mother’s parenting of the children, what then of the prospect of changing residence or moving to substantial and significant time for the children with the father in an unsupervised manner.
567.It should firstly be said that continued strict supervision, as has been experienced to date, is not a viable proposition into the future because of its cost, the impact upon the father’s emotional state and
self-esteem and the fact that it would have to be very limited. Also, as I have said, it creates an artificial environment for all concerned. If there is to be time with the father it needs to be significant, overnight and regular. It would also need to include time during school holidays. The alternative is to change residence so the children lived predominantly with their father.
568.The evidence convinces me that either a change of residence or an extension of time as envisaged in the prior paragraph would not be in the children’s best interests. The reasons for that decision can be summarised as follows:
•The father has not put forward a firm proposal as to where the children would be housed.
•The father’s final position in the hearing about schooling is that he would keep the children at their current schools for the time being, however, he would want to move them to a private school in the future and that could be in the [North Shore] area or at least in the Sydney metropolitan area. The children would have therefore to adapt to a new school and new friends. The father did say they would have friends from their prior associations, however, it has been some considerable time since the children were at school in the Sydney area.
•The father has not established that he has the financial ability to support the children. He is studying for a [degree] and has a limited ability to earn income at the present time. He believes that may change in the near future, however, nothing was in place at the time of the hearing.
•I am satisfied that to move from the Central Coast to Sydney would be disturbing for each child who appears to be happy with their present schools, sporting arrangements and friendship groups.
•I am satisfied the move would create a degree of trauma for each child, however, for [Z] that would probably be almost overwhelming. He has, I accept, a genuine, yet unnecessary, fear of his father. He was very young when he last lived in a house with both his parents and as such, given the relatively small amount of time he has spent in the care of his father, I am satisfied it will take significant time to build the type of loving, secure and trusting relationship that [Z] will need to have with his father.
•At this time it is not possible to reasonably be satisfied the father is capable of interacting with the boys in a manner which will not draw them into the conflict which still exists between himself and the mother and [Mr MacDuff]. I am concerned that the father still harbours a desire to “straighten the record” by making sure the boys know “the truth” about matters of family history which the father understands they have been misinformed about. Such an educative process may well be very destructive to their psychological wellbeing as, if accepted by them, would paint their mother and [Mr MacDuff] in a very bad light.
•There is a high probability both boys would run away from the father at the first opportunity. It is probable that force would now be required to physically move [J] from the mother’s care to that of the father.
•If the orders were only for contact there is a high probability neither boy would cooperate by voluntarily attending.
•If there was a change of residence it would of necessity require a period of time where the boys would have no contact with the mother so that they could settle into a new relationship with the father. I am satisfied that would be traumatic for both boys but in particular [Z].
Thus the trial judge recorded, as earlier observed, his conclusion that it was in the children’s best interests for a “raft” of orders to be made which his Honour considered would give the children “the best chance they have (if any) on restoring a proper parent/child relationship with their father” (at [582]).
Trial transcript
Before dealing with the father’s grounds of appeal, we record that, at the outset of the hearing of the argument in this appeal, the Court and the father were at cross purposes concerning the trial transcript, as a consequence of administrative errors within the Court. It appeared from the appeal records before the Court that the father had not taken any relevant step to address his apparent failure to obtain and provide, as part of the Appeal Book for the appeal, the trial transcript, as he had been ordered to do by directions made by an Appeals Registrar on 4 April 2018. However, well after the hearing had commenced, it was discovered that the father had in fact filed an Application in an Appeal on 19 June 2018 seeking (apart from an extension of time for the filing of the appeal books and electronic transcripts) an order that “[t]he court provide any assistance that it can in regards to the provision of electronic transcripts”.
A subsequent email exchange between the Appeals Registrar and the father confirmed that whilst the Appeals Registrar had, on 17 July 2018, dealt with the father’s application for an extension of time to file the appeal books, the father was advised that his application in relation to transcript would be listed before the Full Court. That did not happen and thus it was that, initially, this Court was operating under a misconception that no relevant application had been filed.
That misconception was compounded by the further administrative error that whilst the members of the Full Court hearing the appeal had each been provided with extracts of the trial transcript in advance of the hearing, in respect of four days of the trial (24 and 25 August 2017 and 1 and 15 September 2017), copies of these transcript extracts had not been made available to the parties.
Thus the hearing of the appeal was stood down to enable copies of the extracts of the trial transcript to be provided to the parties and for them to have an opportunity to consider those extracts. Moreover, aside from each party addressing us orally by reference to the transcript extracts on the hearing of the appeal, we ordered that each party have the opportunity to file, subsequent to the appeal hearing, a document identifying those parts of the transcript relevant to that party’s argument.
Each of the husband and the ICL filed such a document subsequent to the appeal hearing.
Whilst the trial transcript in its entirety was not available for this appeal, ultimately we are satisfied that the father had, via the extracts of the trial transcripts, to which reference has been made, those parts of the transcript necessary to his arguments on appeal and, likewise, the other parties had those parts necessary for them to respond.
Grounds of appeal
The father’s Amended Notice of Appeal sets out 18 grounds of appeal. Those grounds are as follows:
1.The appellant was denied procedural fairness in the conduct of the hearing due to the delays of the Family Report.
2.The court erred by ‘misquoting’ the evidence from the trial in such a way that it:
·Created perceived or actual bias
·Removed the most impugning primary consideration of the trial
3.The court erred where the trial judge made an error of fact and/or context by representing that the appellant had no authority/consent to seek an alternative report (expert or otherwise).
…
4.The court erred in that the single most damning issue to the appellant’s case was factually, contextually and/or fundamentally incorrect.
5. The court erred in that the learned trial judge refused the applicant opportunity to cross examine a key party to the proceedings being [Mr MacDuff].
…
6.The court erred in allowing the Family Report to be adopted and/or any evidence from the report writer to be relied upon when the required standards had not been complied with.
…
7. The court erred in that, if the Family Consultant evidence was to be allowed, it did not give due consideration to:
a.the changes that the Family Consultant stated she would make if certain facts were made out.
b. The errors that were relied upon in framing the initial report
8.The court erred in adopting the recommendations of the ICL where those recommendations relied upon the Family Report and evidence of the Family Report writer.
9.The court erred in its reliance of the ‘Father’s Day’ card events procured by the learned trial judge and it was not open to the court to make findings as it did based on that event.
…
10. The court erred in that it made numerous errors of fact.
11.The court erred in failing to have sufficient regard to sections 60CC(1), (2) & (3) and/or to which trial issues were subject to those sections of the Family Law Act 1975 in determining that which was in the best interests of the children in these proceedings.
12. The court erred in not taking into account that actual and/or perceived bias was exhibited by the ICL.
…
13.The court erred in failing to have sufficient regard to sections 61DA of the Family Law Act 1975 in determining that which was in the best interests of the children in these proceedings.
…
14.The court erred in that it gave undue weight to the final submissions of the mother and drew inferences that were not open to the court.
15.The court erred in using its discretion in several areas where that discretion was incongruent to the evidence and/or finding of fact.
…
16.The court failed to give adequate reasons for judgment on a number of issues.
17. The court erred in that it overlooked relevant matters for consideration.
…
18. The court erred in failing to take into account any of the relevant
caselawauthorities presented in the case by the appellant when it was relevant to do so.(As per the original)
The father was self-represented on the appeal and whilst he advised the Court that he is studying for a degree, there is no suggestion that the father has any relevant legal training or experience in the conduct of appeals. As can be seen, many of his grounds of appeal lack sufficient particulars for the actual error to be identified or for them to constitute valid grounds of appeal. Many of the grounds can conveniently be dealt with together. Moreover, the father’s challenges on appeal primarily comprise challenges as to the weight attached to certain evidence, or complaints that the trial judge did not exercise his discretion in the manner for which the father contended. By extension, the father asserts that the trial judge demonstrated bias towards the father.
Grounds 1, 3, 6 and 7 – Errors asserted relating to the expert family report
The father raises a number of concerns regarding the family report prepared by the family consultant, Ms CC. That report was dated 1 August 2017, however the father asserts that it was not provided to the parties until 9 August 2017 (still some two weeks prior to the commencement of the trial).
The father also asserts that the parties’ cross-examination of Ms CC was limited due to her availability and as such, the father was not afforded the opportunity to properly cross-examine that witness. From the extracts of the transcripts received, it appears the ICL’s cross-examination of Ms CC commenced at 2.38 pm on 24 August 2017. Counsel for the ICL concluded her questioning 47 minutes later. The mother then cross-examined Ms CC for 13 minutes before the father’s cross-examination commenced at 3.38 pm.
At the end of that day, the father sought more time for cross-examination and the following exchange took place between the father and the trial judge (Transcript 24 August 2017, p.41 lines 1–43):
[MR SEAWARD]: I’ve got all my questions, your Honour. It was only the cross-examination notes that I was trying to - - -
HIS HONOUR: Right.
[MR SEAWARD]: - - - clarify. The rest is pretty straightforward.
HIS HONOUR: Are you able to compact it into two hours? Is that – are you going to be able to get through it?
[MR SEAWARD]: I can’t guarantee it, but some of the stuff I’ve got has probably been covered already so - - -
HIS HONOUR: Yes.
[MR SEAWARD]: But I will try to.
HIS HONOUR: Well, you might vet tonight because really it’s so hard to get these family consultants into court, and they’ve – you know, they’re queued up with work - - -
[MR SEAWARD]: Yes.
HIS HONOUR: - - - that – and on the other hand, I’ve got to allow you a reasonable period, but, you know, if you can’t stitch up the case in two hours with this witness, then it’s probably going to be difficult for you to do it.
[MR SEAWARD]: Yes.
HIS HONOUR: Right.
[MR SEAWARD]: Well, I understand that last week when you said I’m down here - - -
HIS HONOUR: Yes.
[MR SEAWARD]: - - - so this report and cross-examination is pretty important.
HIS HONOUR: It is. It is.
[MR SEAWARD]: Yes.
HIS HONOUR: Right. Thank you very much. We will see you tomorrow afternoon.
The father’s cross-examination of Ms CC recommenced at 1.31 pm the following day, 25 August 2017. Almost two hours into that bracket of the
cross-examination, the trial judge said (Transcript 25 August 2017, p.48 line 44 to p.49 line 5):
HIS HONOUR: So there is a recommendation, an outcome, that has been volunteered. You’re watching the clock.
[MR SEAWARD]: Well, what time are we finishing, 3.30?
HIS HONOUR: 3.30, yes.
[MR SEAWARD]: I don’t think we’re going to finish.
HIS HONOUR: You better wiggle out your best questions now.
The father’s cross-examination on 25 August 2017 lasted two hours in total until the trial judge said “[r]ight. That’s the last question. Now, thank you very much, [Ms CC], you’re free to go” (Transcript 25 August 2017, p.52 lines 5–6).
It appears that the father sought that Ms CC return for further cross‑examination on 1 September 2017, although it is unclear how that came about given that we have only been provided with an extract of the transcript. What is clear is that the father recommenced cross-examination of Ms CC at 11.01 am on 1 September 2017.
The line of questioning on that date related primarily to Ms CC’s qualifications and experience as the father indicated that he wished to test whether Ms CC had sufficient experience to recommend that the children spend no time with him.
The father’s cross-examination on that date concluded at 12.16 pm.
In total, the father was afforded the opportunity to cross-examine Ms CC for just short of four hours (three hours and 56 minutes) over three days, after the ICL and mother had already cross-examined Ms CC for an hour.
It is difficult to see how the father could be said to have had insufficient time for preparation or cross-examination of the witness.
The father also asserts that Ms CC’s report ought not have been relied upon by the trial judge as “required standards had not been complied with”. The standards referred to by the father are what are described as the “Australian Standards of Practice for Family Assessments and Reporting 2015” about which the father cross-examined Ms CC as follows (Transcript 1 September 2017, p.5 line 21 to p.9 line 38):
[MR SEAWARD]: Have you been trained in the Australian standards of practice for family assessments and reporting?
HIS HONOUR: I don’t know what that means. Can you ask that question again. Have you been trained – what?
[MR SEAWARD]: Have you been trained in the Australian standards of practice for family assessments and reporting 2015, which is the - - -
HIS HONOUR: Does that require training, or are you asking, “Do you know what the - - -”
[MR SEAWARD]: Well, it will be both, your Honour.
HIS HONOUR: Right. Well, let’s - - -
[MR SEAWARD]: Do you know of the standards?
HIS HONOUR: Do you know of a – I will call it a document – which sets out Australian standards of practice for family assessment and reporting? Do you know about that?---Not that I can recall, your Honour.
[HIS HONOUR]: Right. Yes. Next question.
[MR SEAWARD]: So you’ve had no training in that if you don’t know what they are. Correct.
HIS HONOUR: Well, I don’t understand why you use this word “you’ve had no training”. Where does it say anywhere that she has to be trained in this? I don’t understand why - - -
[MR SEAWARD]: Your Honour, the Family Court - - -
HIS HONOUR: - - - you’re saying she has to be trained in it.
[MR SEAWARD]: - - - advertised these as the standards that she must follow in doing the report. So, in effect, she can’t complete the report unless she has followed these standards.
HIS HONOUR: Right. So what training does she need, other than to read the report?
[MR SEAWARD]: Well, she would have either had an induction. She would have known about the standards. She would be having this on her desk to follow.
HIS HONOUR: Well, that’s what you say, but that’s not necessarily so. You’re not running the family consultant department. You can suggest - - -
[MR SEAWARD]: No, I’m not, but I - - -
HIS HONOUR: - - - that that’s what might be appropriate.
[MR SEAWARD]: And that’s what I’m trying to do, your Honour.
HIS HONOUR: Right. Well, so far she hasn’t read it, so she hasn’t – she doesn’t know that she has read it. Right.
[MR SEAWARD]: So where do you get your standards from to do these assessments and reports?---There are standards in the family reports that we are trained to do as part of our training and induction as a family consultant.
[MR SEAWARD]: Where do those standards come from though?---Maybe the Family Court.
HIS HONOUR: From where, sorry?---Perhaps the Family Court.
[MR SEAWARD]: Perhaps. You don’t know where any of the standards you’re using - - -?---I can’t clearly recall precisely.
[MR SEAWARD]: Do you see the problem here is that if an aeronautical engineer has standards he doesn’t follow, planes potentially fall out of the sky, don’t they? If a building engineer doesn’t follow his standards of practice, buildings crumble when the earth shakes. Correct. Is that fair?---Yes.
[MR SEAWARD]: So when you don’t follow your standards, what happens to the report and the assessment?---Well, my report is thoroughly reviewed by the seniors so if there were any concerns with the standards - - -
[MR SEAWARD]: But that’s not what I’m asking. We’re talking about standards here. It doesn’t matter that somebody else has reviewed it.
HIS HONOUR: Well, you haven’t established that there’s any requirement for her to follow anything.
[MR SEAWARD]: Well, perhaps I will read something, your Honour. I will read the foreword - - -
HIS HONOUR: Have you read the introduction to this standard?
[MR SEAWARD]: I will read the foreword by her Honour Diana Bryant, his Honour John Pascoe, and his Honour Stephen Thackray.
HIS HONOUR: Yes. Well, just before you read all that, have you got page 6?
[MR SEAWARD]: Of that standard?
HIS HONOUR: Yes.
[MR SEAWARD]: Yes, your Honour.
HIS HONOUR: And what does the second last paragraph say on page 6?
[MR SEAWARD]: Are you talking about the step-by-step?
HIS HONOUR: I’m talking about the second last paragraph. Can you read that.
[MR SEAWARD]: Yes:
The principles and practices in these standards are not intended as a step-by-step guide to practice, nor to limit the discretion of social scientists conducting assessments in individual cases. It is recognised that the processes of each assessment must be tailored to the needs and circumstances of that matter, as well as guided by principles of best and ethical professional practice.
HIS HONOUR: Right. So in light of that, in what way do you say that any step-by-step process that might be outlined in this document is required to be followed by this family consultant?
[MR SEAWARD]: Because the way I read that, your Honour – and you have to read it with the paragraphs above – is that she still has standards. How those steps may map out may be altered by discretion, to a point, but she still has the standards as the basis for doing any of that. That paragraph doesn’t change any of that. So the paragraph above that says:
The standards should apply to completed assessments where the family assessor offers recommendations concerning the longer term parenting arrangements for children of separated parents or caregivers.
That’s the giveaway, your Honour. It should apply to completed - - -
HIS HONOUR: All right. Well, let’s come at this from the other way. What is it about this report that you say shows she did not follow acceptable standards?
[MR SEAWARD]: Firstly, your Honour - - -
HIS HONOUR: You point to something.
[MR SEAWARD]: - - - I’ve got less than an hour to do this. That would take me about three hours to go through the omissions alone. Okay. There’s almost nothing that has been followed in the standards. The report, as far as I read it, if I follow the standards, should be shredded, but, you know, you’re not going to give me time to question her on every omission, but - - -
HIS HONOUR: No, you’re not having three hours.
[MR SEAWARD]: No, I understand that, and that’s what I’m saying, so - - -
HIS HONOUR: Right. Well, point to a really important one. You say – you point to a really important matter which you say is fundamental to this report being able to be given any weight.
[MR SEAWARD]: Okay. For example, family assessors should conduct at least one in person interview with each parent and other adults who perform a caretaking and parenting role with the children. Given the exclusion of [Mr MacDuff], that would seem to be a pretty significant omission. Now, whether that’s because he just wasn’t told to come – but we know it is - - -
HIS HONOUR: How was it in the control of this family consultant to interview him if he wasn’t presented?
[MR SEAWARD]: Well, did she ask the question of why he wasn’t presented and requested that he would be?
HIS HONOUR: Well, you can ask that. You can ask that.
[MR SEAWARD]: Did you ask the question – sorry. Do you want me to keep going through other points, your Honour?
HIS HONOUR: No. Just let’s deal with this one. You say it’s fundamental. I don’t see it as such, but let’s hear your questions about it.
[MR SEAWARD]: You didn’t interview [Mr MacDuff], did you?---No.
[MR SEAWARD]: No. Did you think that was odd, that he wasn’t available to be interviewed and assessed?---No, when I spoke to the mother on the day they had separated and he wasn’t part of the household, so I - - -
[MR SEAWARD]: But if he’s a - - -?--- - - - would primarily be assessing adults in the household who have a caregiving role for the children.
[MR SEAWARD]: So you understand now though that he is part of the caretaking role?
[COUNSEL FOR THE ICL]: I object to that, your Honour.
HIS HONOUR: Well - - -
[COUNSEL FOR THE ICL]: There’s no evidence of that.
HIS HONOUR: No. Where’s that evidence?
[MR SEAWARD]: Well, the mother has said that he spends – he comes over two nights a week. He does school drop-offs, pick-ups. He spends time with the children. And she has also indicated that it’s a temporary separation based predominantly on the court case, so put two and two together. She has inferred that they will get back together when we leave here on 15 September.
HIS HONOUR: Right. Well - - -
[MR SEAWARD]: Which is - - -
HIS HONOUR: - - - what about asking the question then, if the court concludes that [Mr MacDuff] will be a significant caregiver for the children in the future once these proceedings have concluded, does that impact on your report in any way?---It does suggest there would be limitations to the report, your Honour.
[HIS HONOUR]: Yes. Right. Thanks.
(Emphasis added)
The father’s concerns in this regard were specifically addressed by the trial judge in the reasons for judgment as follows:
429. The father set out his submissions in relation to the Family Report. He was critical of the report during the hearing and he enumerated what he describes as failings in the report. In particular, the father said the Family Consultant [Ms CC] was not aware that she was required in the preparation of her report to follow the Australian Standards of Practice for Family Assessment and Reporting. The father referred the Family Consultant to the Court’s website which states that these standards are followed by Family Consultants engaged in this Court.
430. The father said the Family Report did not set out the “long term risk assessment of the damage to the children from multiple issues”. He listed the issues he said had not been addressed.
431.The father submitted that the Family Consultant had exaggerated aspects of his action by suggesting he had “a history of breaching orders.” He submitted that any such action to which she could have been referred were either prior to the 2012 final hearing or erroneous conclusions that he had breached the orders as alleged by the mother. This, he suggested, amounted to raising a concern about her independence.
432.The father asserted that the Family Consultant had misstated fact as to the circumstances in which the father and children were first brought into contact for the purpose of her observation session. He submitted that misstatement gives rise to a conclusion about his interaction with them which underlies the weight which the Court could properly give to the report.
433.The father submitted the weight to be given to the report is significantly limited given that the Family Consultant did not interview either [B] or [Mr MacDuff], both of whom were significant persons in the boys’ life and care arrangements.
434.The Court was asked by the father to take note of the comment he recorded from [Ms CC] that it would be concerning if [Mr MacDuff] was “back in the lives of the children”. There were other matters put to [Ms CC] by the father which she said would be concerning if the Court found them to be correct. Those matters were listed by the father in his written submission.
…
440.The father submitted the Court is not bound to follow the recommendations contained in the Family Report. Further, the Court does not have to follow or agree with the submissions of the Independent Children’s Lawyer. The father clearly urges the Court not to follow or adopt either the report or the Independent Children’s Lawyer’s submissions and minute of orders.
441.The father made submissions as to the weight the Court should apply to the evidence. In particular, he addressed the children’s view, the evidence of the Family Consultant, the evidence of the mother, and his evidence. I have read those submissions and do not repeat them here.
The trial judge did not accept Ms CC’s recommendation that the Court should place significant weight on the children’s views, however the trial judge accepted that the children had strongly opposed spending time with their father (at [469] and [471]).
At [552], the trial judge accepted Ms CC’s evidence in the following terms:
552.Given that the ambition of the legislation, and consequently this Court, is that the children have a meaningful relationship with each of their parents, it is to that end that the Court must seek a sustainable result. I have concluded that it is presently not a viable option to order the children to spend significant and substantial time with their father. I accept the evidence of the Family Consultant and the submissions of the Independent Children’s Lawyer and the mother that the best interests of the children dictate there be a cessation of face-to-face time with the father. I am satisfied that any order which required such time to be spent would be unlikely to be complied with because the boys would rebel against their mother’s efforts to comply with the order. The Court should not make orders which are doomed to failure as it will probably lead to further litigation and I conclude it will have a significant psychological impact upon the children.
(Emphasis added)
We find no substance in the father’s complaints concerning his ability to test the family consultant’s evidence by cross-examination, nor in his challenge concerning any standards the family consultant was obliged to apply. These grounds fail.
The father also asserts that the trial judge erred by failing to allow the father the opportunity to obtain an alternative report.
The father asserts that the trial judge erred by finding at [66] that there had been time following the release of the family report for the father to make an application to rely upon an adversarial report. The father asserts that this was wrong as the family report was not provided to the parties until 9 August 2017, not 1 August 2017 being the date of the report.
The point raised by the trial judge at [66] was but one of the reasons why his Honour did not allow the father to rely upon a report prepared by his psychologist, Mr FF, dated 28 August 2017 and sought to be tendered on the fifth day of trial. That report purported to critique the family report prepared by Ms CC and the father was ultimately refused leave to file and rely on it.
The father asserts that by the trial judge making such a finding without identifying the date on which the parties received Ms CC’s report, the trial judge created the perception of bias and “has not conducted himself in the manner required of a judicial officer” (the father’s Summary of Argument filed on 21 November 2018, paragraph 7). With respect to the argument, the report was released to the parties on 9 August 2017. The father asserted in submissions before us that he was not authorised to make the report available to Mr FF until 11 August 2017 but the documents before us do not allow us to verify that. In any event, the trial did not commence until 23 August 2017 and then proceeded over some eight days of hearing.
The trial judge recorded the following at [65] and [66] of the reasons:
65.On 29 August 2017, the fifth day of the trial, the father sought to tender a report he had obtained from [Mr FF], psychologist and dated 28 August 2017. [Mr FF] had been providing some counselling to the father, however, his report did not address that topic. It addressed a critique of the Family Report, which had become Exhibit X1 in the hearing, and also other aspects of the concept of “parental alienation of children”.
66.Having heard argument from each of the mother and the Independent Children's Lawyer opposing the admission of the report as evidence, and having heard the submission of the father as to why it should be admitted, I determined that the father could not rely upon the report. My reasons for refusing the father’s application can be summarised as follows:
•The report was tendered as an expert’s report, not as the report of a treating psychologist or therapist of the fathers.
•No leave had been given to the father to be able to rely upon evidence of an adversarial expert which might contradict the report of the Family Consultant (see rule 15.49 of the Family Law Rules 2004 (Cth)).
•To permit the father to rely upon the report would work hardship against the mother and the Independent Children's Lawyer insofar as they had no opportunity to consider making an application to call an adversarial expert witness of their own.
•The trial had proceeded for four days and had a further three days allocated. Any adjournment of the hearing would see the matter unable to be fitted into the Court’s hearing schedule until well into 2018 considering that some time would have to be allowed for any other expert to be engaged by the mother or the Independent Children's Lawyer and to produce a report.
•The cost to the Independent Children's Lawyer and to the mother of obtaining a further report from an expert would be significant. Neither the father nor the mother appeared to have the capacity to financially contribute to the cost of such a report if commissioned by the Independent Children's Lawyer.
•The Court had made directions for the filing of evidence well before the trial.
•Although the Family Report was only signed on 1 August 2017 there had been time for the father to have made an application to be able to rely upon an adversarial report. The fact that the father was only able to obtain the report by 29 August 2017 was an unfortunate aspect of his case.
The father also asserts that the trial judge failed to consider and apply r 15.49 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) which states:
…
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
The father asserts that the trial judge ought to have admitted the report prepared by Mr FF into evidence and should have placed significant weight upon the “professional advice” contained therein.
The father did not establish at trial any of the criteria identified in r 15.49(2) quoted above for the discretion to be exercised in favour of the admission into evidence of Mr FF’s report.
It was open to the trial judge to refuse to admit the father’s psychologist’s report into evidence for the reasons his Honour identified including that a single expert family consultant had been appointed to prepare a report and give evidence on the issues relevant to the parenting proceedings.
In passing, it is to be noted that whilst the trial judge refused to admit the subject report, the father was permitted to rely upon the report to the extent that the report contained submissions. At [407] of the reasons, the trial judge observed:
407.The father provided written submissions consisting of 67 pages together with annexures. Included as an attachment was a copy of the report obtained by the father from [Mr FF]. I had refused the father’s application to tender the report as part of his case for the reasons set out herein. I did, however, say the father could adopt, as his own submissions those parts of the report which were submissions (and not an expression of opinion).
There is no merit in any of the complaints the subject of these grounds.
Grounds 2, 4 and 10 – Asserted errors of fact
It is convenient to deal with these grounds together given that they are directed to a common topic.
The father asserts that the trial judge erred by “misquoting” evidence and making numerous errors of fact. This appears to also be a reference to the trial judge’s finding at [66] that “[a]lthough the Family Report was only signed on 1 August 2017 there had been time for the father to have made an application to be able to rely upon an adversarial report”. This aspect has already been dealt with above in the conclusions we have reached as to the lack of any merit in the challenges concerning the expert evidence.
The father also complains about the weight attached to a letter he sent to J dated 20 March 2017 referred to in [143], [153], [384], [494]–[496] and [537] of the reasons. The father takes issue with the finding that such letter was inappropriate and states that the trial judge’s finding in this regard is evidence of the trial judge’s bias towards him.
The father asserts that his evidence was that he obtained professional advice from the psychologist, Mr FF, prior to writing that letter and that the final version as sent to J was not written by the father.
Ms CC was cross-examined by the mother in relation to this letter as follows (Transcript 24 August 2017, p.20 lines 1–24):
[MS MACDUFF]: I advised you that [Mr Seaward] had mentioned stuff in there that was in regards to what the children had said to both the ICL and [Mr BB]; is that correct?---Yes.
[MS MACDUFF]: Did I also say that he had mentioned some derogatory things about the children’s sister in there?---I can’t recall that, but I do remember the – the [Mr BB] ICL.
[MS MACDUFF]: Okay. And the other thing that I told you about it that I had concerns about was that it placed [J] in a position where he might in the future not want to seek therapeutic assistance and that also it placed him in a position where he was being told he had to make decisions. Can – do you recollect that?---Yes. I recall both those things.
[MS MACDUFF]: So now that you’ve read that letter was everything that I said to you correct in that letter? Did I mislead you in any way?---No. You didn’t mislead me with what you told me were your concerns.
[MS MACDUFF]: Did you during those meetings ask [Mr Seaward] whether what I had said was, in fact, what he had written?---No. I did not.
[MS MACDUFF]: Okay. So now that you’ve read that letter would you agree with me that I had reason not to give that letter to [J]?---I can see why you didn’t, yes.
[MS MACDUFF]: And that it wouldn’t have been in his best interests to get that letter?---I think it would have been very difficult for him to get that letter.
(Emphasis added)
The trial judge recorded the following:
384.The Independent Children’s Lawyer submitted that the letter the father wrote to [J] this year (annexed to the mother’s affidavit) demonstrates that he has not developed the skills to interact with the children in a manner which does not draw them into the conflict between the parents. I note the father informed the Court he had assistance from [Mr FF] (psychologist) to frame the letter. The extent of the assistance is not known, however, if [Mr FF] did view the final letter which was sent to [J] then it is a matter of disappointment if he did not caution the father against sending the letter in that form. How the father could have considered the mother would show the letter to [J] having read it herself first suggests the father was not being realistic. If the father was correct in his assertion that the mother had deliberately embarked upon a course of action designed to alienate the children from him, why would he think she would show a letter to [J] which was highly critical of her or which might lead [J] to suspect she was deliberately misinforming him about the father.
…
494.The mother annexed to her affidavit a copy of a letter which the father had written to [J] this year. The mother elected not to show the letter to [J] as she concluded it was not appropriate. I agree that the content of the letter in parts was inappropriate. I agree it was in [J’s]best interests that the letter not be shown to him. In particular the following topics raised by the father in that letter I find to be inappropriate:
·[J’s] stated views to [Mr BB] that he did not want to see the father;
·The father seeking to refute information which had been given to [J] by his mother that the father had “broken court orders” when the father saw him at [Town U] on 15 April 2016;
·The father’s knowledge that [J] wanted to change his surname so as to lose [“Seaward”];
·The father challenging information from the mother that the father had used “all Mum’s money”; and
·The father challenging [B’s] misinformed view of the father.
495.Those matters are, to me, the main reason why I consider the letter inappropriate. Those parts, at the very least, draw [J] into the conflict between the parents and have the potential to test his loyalties to each parent.
496.Before moving on from the topic of the letter above referred to, I note the father said he had canvassed with [Mr FF] and with other persons whether he should say the things which I have been critical of above. The father said he had the approval of [Mr FF] to send that letter. There are two things which flow from that evidence. Firstly, it is a very good step for the father to seek the advice of someone like [Mr FF] about the wording of a letter he should send to his son in the circumstances of this family. Secondly, if it be the case that [Mr FF] did inform the father that the letter in its final form was appropriate to send then that was a regrettable piece of advice.
The reasons of the trial judge adequately explain why his Honour formed the conclusion that the subject letter had some inappropriate content. The reasons also evidence that the trial judge was well aware that the father had sought expert assistance in formulating the letter. The reasons do not support in any respect a complaint of “bias” on the part of the trial judge.
We find no substance in any challenge asserting errors of fact on the part of the trial judge or in the challenge to the effect that his Honour “misquoted” any evidence.
Ground 5 – Failure to allow cross-examination of Mr MacDuff
The father asserts that the trial judge did not afford the father procedural fairness as a result of the trial judge’s refusal to allow the father to cross-examine the mother’s estranged husband, M MacDuff. The father also asserts that the trial judge did not properly consider s 60CC of the Act as a result of not obtaining evidence from Mr MacDuff.
In his reasons for judgment, the trial judge recorded the central issues for determination as follows:
69.The issues of fact which emerged during the trial are identified in these reasons. The issues of fact which assumed the greatest significance for the parties in the trial were:
·The father’s claim that the mother had alienated the children from him.
·The mother’s claim that the father had followed or “stalked” the children or the mother or [B] so as to ascertain where the children were living, where the mother was working and following [B] to make contact with her.
·In particular whether the father had consciously arranged accommodation at [GG Street, Town U] knowing that was the same set of townhouses to which the mother had moved with [the] children only weeks before 15 April 2016.
·Whether, post the 2013 Final Orders, the mother’s husband [Mr MacDuff] had spoken to the children about the father in derogatory terms so as to describe him as a “dole bludger”. Further, whether [Mr MacDuff] had thrown out any correspondence sent to the children by the father.
(Emphasis added)
In relation to Mr MacDuff’s non-attendance at Court, the trial judge recorded:
190.The mother relied upon her affidavit sworn 24 July 2017. She called no other witness, including her husband [Mr MacDuff]. She informed the Court she had separated from her husband although she had not lost hope of reconciliation. Although she knew the father had issued a subpoena requiring [Mr MacDuff] to give evidence in the hearing, she had not asked him to come. Clearly, she could have sent him a request to attend, however, she told the Court, when asked by the Independent Children's Lawyer, that to have him attend at Court and give evidence in the case would, in her view, end any hope of reconciliation.
191.During the hearing I pointed out to the mother that it was a matter for her to call her husband if she asserted that the statements made by the boys to their father during supervised contact visits, which reflected badly upon [Mr MacDuff] in that they suggested he was eroding their relationship with the father, were untrue.
…
200. The mother said that although separated from her husband “we are still on agreeable and cooperative terms. We still spend regular time together including; camping, holidays, special occasions and family events.” Notwithstanding those statements, the mother’s oral evidence was that she had not seen [Mr MacDuff] for some weeks and he was not in Court to support her in this hearing. Nor was she either prepared to or unable to have him attend at Court to refute the statements made by the children, as reported in these reasons, adverse to [Mr MacDuff].
…
286.The father asked the mother if she had told her husband there was a subpoena issued for his attendance at the Court for this hearing. She said she had been to his house and spoken to his children. He was not there. She told his children there was a subpoena issued for his attendance.
287.The father put to the mother she did not want her husband to give evidence in this hearing. She said “I don’t want him involved in the proceeding. He said he does not want to be involved”.
The father asserts that the trial judge should have drawn an adverse inference against the mother due to her failure to call her husband to give evidence. The trial judge recorded the father’s submissions in this regard at [413]–[415].
The father asserts that the ICL made submissions against such an inference being drawn, however those submissions cannot be verified on the extract of transcript provided by the father.
The father also asserted that the mother and her husband had not, in fact, separated but rather concocted that story in order to assist the mother’s case.
In that regard, the trial judge stated:
502.… I do have some lingering concern that there was something about the circumstance of the separation between the mother and her husband which the mother has kept from the Court because she is concerned if known it would be adverse to her case. Given the circumstance I can do nothing more about any such concern.
…
525.I have real suspicion that the separation between the mother and [Mr MacDuff] has been contrived for the purpose of the hearing. There are indications in the evidence both ways on that matter. The mother has now acquired her own accommodation which she has purchased. This suggests there is a real breakdown in the relationship. However, [Mr MacDuff] is a frequent visitor to the home of the mother. Such visits occur at least weekly. Further, she is able to call on him to help her with the children if she needs assistance in some circumstance. She said that if she required him to come to Court as her witness to refute matters said by the children to have come from him, the relationship would never be repaired. Clearly the mother has not determined that the marriage is over.
…
528.I conclude that, as stated by the Family Consultant, the reasons for the children’s and [B’s] current position in their relationships with the father is complex. I conclude each of the parents, and probably others such as [Mr MacDuff] and the mother’s parents, have contributed to that circumstance in different ways at different times, and it is not possible to be able to apportion blame in percentage terms between all those participants…
(Emphasis added)
Despite Mr MacDuff failing to appear, the trial judge concluded that he had been unrestrained in his conversations in the presence of the children about his adverse opinions of the father and that he (and the mother) had created an environment where the children likely felt that it was inappropriate to speak of the father (at [368]–[369], [471], [524] and [562]).
It is readily apparent that the trial judge proceeded on the basis, as his Honour had foreshadowed, that if the mother did not call Mr MacDuff as a witness to refute statements, or conduct, attributed to Mr MacDuff via other evidentiary sources, the trial judge would accept the veracity of that evidence, which was adverse to the mother and her case. Plainly then, there was no error on the part of the trial judge to proceed in this manner and there is no substance in any of these complaints.
Grounds 11 and 13 – Failure to properly apply the legislated pathway
The father asserts that the trial judge did not properly consider the “child abuse” suffered by the children at the hands of the mother.
In particular, the father points to [207] and [498] of the reasons which state:
207.As stated elsewhere in these reasons, [J] has a serious weight problem and I have been critical of the mother for not following the advice she received more than a year ago to have [J] see both a psychiatrist and a paediatrician. I note with some relief the mother did inform the Court on the last day of the trial that she has now remedied that oversight and made appointments for [J] to see the medical specialists.
…
498.In relation to the mother, she clearly has demonstrated she has the capacity to attend to the children’s needs in relation to housing and education. She has, I conclude, failed to attend to the health issue which clearly exists for [J] in a timely manner. Her evidence provided to the Court on the last day of the hearing and her submissions satisfy me that she recognises that omission and has now taken steps to remedy that. There is, however, criticism which can be levelled against the mother in relation to the emotional environment which she has allowed to exist in her home and which she has contributed to. Again, it is pleasing to see that the hearing just concluded has had an impact upon the mother in that I accept she has come to realise what she has done to affect the boys’ relationship with their father. I am satisfied the mother and her husband were overcome with frustration and possibly anger as a result of their interaction with the father from the time the mother informed the father she was proposing to re-establish her relationship with [Mr MacDuff]. So much is obvious from the judgment of Justice Ryan and the facts put before this Court by the mother. I am also satisfied the mother has been trying to create “a happy family” which consisted of the mother, her husband and her children. I am satisfied the mother sought to have the children’s “happy family” exclude the father.
The father asserts that by describing the mother’s failure to attend to J’s health issue as an “oversight” or an “omission”, his Honour failed to properly consider s 60CC(2)(b) of the Act and again, misquoted the evidence. The father suggests that this is demonstrative of the trial judge’s bias towards the father.
We do not accept these characterisations as advanced by the father. The reasons of the trial judge are littered with numerous findings adverse to the mother and her parenting and as to her negative influences, and the negative influences within her household, upon the children’s ability to have or maintain a relationship with the father. The subject findings referred to are further examples of adverse findings made by the trial judge about the mother or as to her parenting. However, when the reasons for judgment are read as a whole it is readily apparent from the central findings of the trial judge earlier summarised, that notwithstanding the adverse aspects of the mother and her parenting, the trial judge determined that it was in the best interests of the children to make orders securing the best possible chance of there being some relationship between the children and the father in the future, taking all of the circumstances of the case into account.
Put another way, the central findings made by the trial judge as to the likely responses of the children of being “forced” to spend time or communicate with the father by the terms of orders, was not displaced by the adverse aspects of the case concerning the mother or her parenting.
In this respect, the trial judge engaged in the quintessentially discretionary exercise of making predictions and assumptions concerning the future in formulating parenting orders. The nature of the discretion involved is emphasised by the plurality of the High Court in CDJ v VAJ (1998) 197 CLR 172 in the following terms at [151] as follows:
151.… 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…
We find no merit in the contention that the trial judge misquoted evidence or failed to properly consider s 60CC(2)(b) of the Act. We reject the father’s contention that the trial judge demonstrated bias towards the father.
The challenges the subject of these grounds fail.
Grounds 8, 9, 12, 14 and 15 – Weight applied to the mother’s evidence and the ICL’s recommendations
These challenges are each directed, in one form or another, as challenges to the weight ascribed by the trial judge to evidence, or submissions. It is well settled that challenges to the weight ascribed by a trial judge in determining a discretionary judgment as a means of disturbing the judgment on appeal are exceedingly difficult to establish (Gronow v Gronow (1979) 144 CLR 513).
The trial judge was well aware of the father’s concerns of bias regarding the ICL. The trial judge recorded the following:
435.The father provided submission in response to that of the Independent Children’s Lawyer. The father was critical of a number of the submissions made by the Independent Children’s Lawyer. In oral submissions the father questioned the impartiality of the Independent Children’s Lawyer. In the written submission he said “It seems incongruous in my submission that any ICL having heard the evidence and having established many of the facts could still appear to be so ambivalent to the best interests of the children.”
436.The father submitted that the Independent Children’s Lawyer had sought to “impugn” his character based upon incidents which occurred well before the 2012 trial. The father submitted that the Independent Children’s Lawyer and his counsel were, in this trial (noting they also represented the Independent Children’s Lawyer in the 2012 trial) demonstrating actual bias against him.
Despite the father’s view of the ICL, the trial judge found:
390.I conclude that the submissions of the Independent Children’s Lawyer are well balanced, objective, insightful and I accept they highlight the most significant facts which the Court should have regard to in determining what orders will serve the best interests of the children.
In respect of the mother, the trial judge found:
476.I am unconvinced that the children have been alienated from their father. Alienation suggests an absolute. That is, that there is no semblance of positive feeling which might be alive in a child in relation to an estranged parent. It is that aspect of alienation that I conclude the Family Consultant was referring to when she concluded the children had not reached that point.
477.I do accept that the mother has permitted alienating behaviours, attitudes and perceptions to be demonstrated to or in the presence of the children to such a level that the children resistance has crumbled and their survival instinct has led to the realisation that they cannot live in a dependant relationship with their mother and at the same time enjoy a healthy and meaningful relationship with their father.
…
498.… There is, however, criticism which can be levelled against the mother in relation to the emotional environment which she has allowed to exist in her home and which she has contributed to…
There is no substance in these complaints. The detailed reasons for judgment of the trial judge, read holistically, reflect the balancing exercise engaged in by the trial judge as entailed in the consideration of competing aspects of the evidence including the evidence favourable, and some unfavourable, to the case advanced by either or both of the mother and the ICL. The findings made by the trial judge were open to be made.
That the trial judge ultimately decided the case in the manner in which he did, is not of itself evidence of bias, nor has the father demonstrated the decision was unsound because of the error in the attribution of weight to evidence.
These challenges are rejected.
Ground 16 – Adequacy of reasons
The test for adequacy of reasons for judgment is well known and is often stated by this Court (Bennett and Bennett (1991) FLC 92-191). The reasoning upon which the trial judge made his ultimate conclusion and orders is readily ascertained from the reasons his Honour provided.
Importantly, given the father’s arguments in support of this ground, the trial judge was not obliged or required to mention every fact or argument advanced at trial (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447(“Whisprun”)).
When regard is had to the central findings of the trial judge earlier set out the reasoning process to the parenting orders ultimately made by the trial judge is plainly ascertainable, and no error is demonstrated.
There is no substance in the complaint as to the adequacy of the trial judge’s reasons.
Ground 17 – Failure to take account of relevant evidence
The trial judge found that the mother was a witness of truth (at [77]) but did not accept every aspect of her evidence (at [5]). Reference to the arguments in support of the father’s assertion in Ground 17 that the trial judge failed to take into account relevant evidence, demonstrate that this challenge is no more than an assertion that the trial judge failed to discuss all aspects of the mother’s truthfulness. At [76]–[78] of the reasons, the trial judge dealt with two examples. The High Court in Whisprun at [62], made clear, “[a] judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue”.
There is no merit in Ground 17.
Ground 18 – Failure to take account of relevant authorities
The father asserts that the trial judge failed in his reasons to adequately address authorities to which the father referred in his submissions.
At [407] of the reasons, the trial judge referred to the fact that the father provided written submissions consisting of 67 pages together with annexures. Reference is made in those written submissions to various cases decided in a number of States of the United States of America and in Canada. The feature of these cases seems to be that they were examples where there had been a change in the primary care of a child in circumstances where that child had become alienated from the other parent.
The trial judge appropriately sets out the relevant Australian law at [451]–[456]; [570]–[573]; [577] and [580]. The trial judge dealt significantly with the effect of the father’s proposed change at [486]–[489] of the reasons.
The father also in his written submissions refers to Collier J’s decision in King and Finneran (2001) FLC 93-079. Without referring to that decision, the trial judge was hearing the “second final hearing” of the matter (at [1]) and found, in accordance with that decision, that there had been a significant change in circumstances of the children since the first hearing (at [8]).
There has been no misapplication of the law and there is no substance in the father’s complaint that the trial judge failed to take into account relevant authorities.
Conclusion and costs
There being no substance in any of the grounds of appeal, the appeal is to be dismissed.
In the event the appeal was to be dismissed, the mother sought no order as to costs.
The ICL sought an order that the father pay the costs of the ICL fixed in the amount of $4,390.
Section 117(4) of the Act provides to the effect that in proceedings in which an ICL for a child has been appointed, if the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the ICL, the Court must not make an order for costs under subsection (2) against that party in relation to the costs of the ICL.
In submissions, the father confirmed he was in receipt of social security benefits and that he was medically certified as being unfit for work for at least three months. The father confirmed that he held no assets of any substantial value having only a car estimated to be worth $2,000 and no savings.
We are therefore satisfied that the father would suffer financial hardship if an order for costs were to be made and we decline to make any order.
The appropriate order as to costs will be that there be no order as to costs.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Watts JJ) delivered on 3 April 2020.
Associate:
Date: 3 April 2020
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