SS KS

[2006] FamCA 68

[2006] FamCA 68

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA34 of 2005
AT SYDNEY  File No CAF1785 of 2000

BETWEEN:

S S
Appellant Father
- and -
K S
Respondent Mother

CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & MAY JJ
DATE OF HEARING:                 9 and 10 June 2005
DATE OF JUDGMENT:             20 February 2006

APPEARANCES:  The Appellant Father in person.

Mr Gill of Counsel, instructed by Legal Aid office (ACT), GPO Box 512, Canberra, ACT 2601, appeared on behalf of the Respondent Mother.

Mr Hubert of Counsel, instructed by Capon & Hubert, Barristers, and Solicitors, PO Box 458, Mawson, ACT 2607 appeared on behalf of the Child Representative.

SS and KS
EA34 of 2004

CORAM:  Kay, Holden and May JJ
DATE OF HEARING:         9 and 10 June 2005
DATE OF JUDGMENT:     20 February 2006

Catchwords:           FAMILY LAW – APPEALS – CHILDREN – Contact – Shared Parenting – Best Interests – Appeal complains of miscarriage of trial Judge’s discretion and lack of procedural fairness – Full Court found no merit in the grounds of appeal and dismissed the appeal.

Case law cited:      Gronow v Gronow(1979) 144 CLR 513

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Appeal dismissed and costs orders made against the appellant.

1. This is the father’s appeal against orders made by Collier J on 11 March 2005 concerning parenting orders in respect of “the child A“, born in 1994 and “the child B“, born in 1999.

1. The appeal particularly focuses upon the orders made regarding the child B, who is a natural child of the appellant father and the respondent mother.

1. On 13 December 2001 Faulks J made orders by consent that provided that the child B was to live with his father:

“(a)from 12 noon Thursday to 12 noon the following Wednesday on one occasion each four weeks commencing 15 November 2001 and every four weeks thereafter;

(b)from 12 noon Thursday until 12 noon the following Tuesday on one occasion each four weeks commencing 29 October 2001 and every four weeks thereafter;

and with his mother at all other times.”

1. The orders also made provision for the sharing of school holidays, birthdays and other special occasions. 

1. Subject to some minor variations that were not relevant for present purposes, those orders remained in operation until they were discharged by orders made by Collier J on 11 March 2005. 

1. The latest orders provide that the child B is to live with his mother and that the father is to have contact during school terms each alternate weekend from immediately after school on Friday until the commencement of school on the next succeeding Monday, extending to Tuesday morning in the case of a long weekend.  They also make provision for the sharing of school holidays and other special events.

1. Whilst the Notice of Appeal sought

“That the orders and all findings of fact made by Collier J on 11 February 2005 be set aside

[and]

That the matter be remitted for rehearing before a single judge…”

it ultimately became apparent both at the hearing of the stay application before Collier J and before us that the appellant father was anxious to ensure that the earlier orders made by Faulks J in December 2001 continued in operation.  The appellant said on the stay application:

“…my application at all times has been to maintain the status quo of 11 days…If I’m successful in my appeal it will stay the way it is, I’m not looking for a change, I’m looking for consistency.  I’m not looking for sole custody, and that was explained a number of times during the trial and just to conclude, your Honour, all I’m looking for is my 11 days and my half school holidays…That’s what I’m after, your Honour.  I’m after my 11 days…”

1. The trial in this matter was heard over some 11 days.  The judgment occupies 180 pages.  It endeavours to encapsulate at some length the evidence given about a myriad of issues almost all of which appear to have little relevance to the issue that now presents itself to us.  That issue appears to ultimately have been determined on a very narrow basis, namely, that as the child B was about to start school, a shared parenting arrangement was no longer in his best interests given the depth of hostility that existed between the parties and the lack of commonality in the parenting styles of the parties.

1. By way of example, at the commencement of his reasons for judgment, Collier J identified several issues that he saw as requiring determination in the proceedings. He said the matters in contention were as follows:

• The circumstances in which the parties met.  Was the father a client of the mother as a prostitute or did they meet in a social situation at a nightclub as the father asserts?

• What was the father’s knowledge of the mother’s drug taking?

• Was he involved in assisting her to purchase drugs?

• Did she carry on sex work from her home address?

• What was the truth behind the episode of 3 November, i.e. the guns and drugs in the car?

• The circumstances surrounding payments by the father to the mother and execution of documents by her.

• Was the mother involved in any assault on the father at his premises?

• Damage to the mother’s property.

1. The judgment itself generated a Notice of Appeal containing 35 grounds and more than 50 sub-grounds.  The appellant’s pre-argument statement was 176 pages long.  That document was subsequently summarised down to 20 pages.  Most of the matters traversed in the Notice of Appeal have no apparent bearing to the limited issue still alive between the parties, namely whether the father should see the child B on 11 or 6 nights in each 28 day school term period.  We propose to deal only with the issues that are relevant to determining that controversy. 

Background

1. The appellant father was born in 1953 and the respondent mother in 1972.  The parties commenced cohabitation in 1997, separating in 2001.  Their sexual relationship continued sporadically after cohabitation ceased.

1. The child A, whose father was a man, for present purposes, named “D”, lived with the parties during cohabitation.  The child B lived with the parties after his birth until their separation and then remained in his mother’s care.  In May 2001 both children were placed into foster care.  By early 2002 they returned to their mother’s care.

1. As already mentioned, in December 2001 orders were made by consent for the child B to spend six nights in each alternate week and five nights in each other week with his father and the remainder of the time with his mother.  School holidays were to be shared.

1. For reasons which are not immediately apparent from the 18 volumes of documents that make up the appeal books, by September 2003 the mother had filed an amended application seeking an order that the child B have no contact with the father, or in the alternative, contact on alternate weekends from the conclusion of pre-school Friday until the commencement of pre-school Monday, and once the child started kindergarten from the conclusion of school on Friday until 5.00pm Sunday.  In addition there was to be contact over the school holidays.

1. Whilst the formal response is not contained in the appeal books, the trial Judge indicated that the summary of argument documents filed by the father sought orders as follows:

“18.For ease of understanding I have adopted the orders sought by the parties in each of their Summary of Argument documents as the orders they would seek the court make in this matter.  The father’s proposals for orders are in the following terms:-

‘1.That all applications in relation to the child [B] born […] 1999 be dismissed.  And that all previous orders in respect of the child [B] continue.  That the orders made by Faulks J of 13 December 2001 and amended 5 September 2002 continue along and in accordance with the orders made by Justice Coleman on 18 December 2002.

2.That the only change if any to be considered to the existing orders be that order 13 of Justice Faulks orders of 13 December 2001 be altered to read ‘that the mother will undertake appropriate blood tests to screen for drugs and alcohol by the fifteenth day of each month commencing March 2004 until March 2016, and that the mother is to submit to two random drug testing procedures in any one year as directed by the nominee of the respondent father, copies of all results to be provided within 7 days of the sample being taken to the applicant mother and the respondent father.

3.That subject to the existing orders being allowed to stand that the father and mother both be restrained from filing any further applications of any kind in any Court with jurisdiction under the Family Law Act 1975 without leave of the Court.

4.OR IN THE ALTERNATIVE:  That all previous orders relating to [the child B] born […] 1999 be and are hereby discharged.

5.That the child [B] born […] 1999 live with his father.

6.That the father have responsibility for making decisions about [the child B’s] day to day and long term care, welfare and development.

7.That [the child B] have contact with his mother only as determined by this Honourable Court.

8.That the child [A] born […] 1994 live with the respondent stepfather.

9.That all previous orders in relation to the child [A] be and are hereby discharged.

10.That the stepfather have responsibility for making decisions about [the child A’s] day to day care, welfare and development.

11.That [the child A] have contact only with the mother as determined by this Honourable Court.

12.That the mother, stepfather and [the paternal aunt and her husband, of the child A] not bring [the child A] into contact with [the child A’s father or paternal grandparents] except under supervision.

13.That [the child A] have contact with [the paternal aunt and her husband, of the child A] as agreed between the stepfather and those parties, or as determined by this Honourable Court.’”

1. His Honour also noted that by the time of the trial the mother’s case, whilst primarily for no contact between the child B and the father, was in the alternative to be:

“8B(i)  From 4.00pm Friday until 5.00pm Sunday each third weekend.

8B(ii)   Once [the child B] commences school, from after school Friday until 5.00pm Sunday each third weekend.”

1. The child representative appears to have supported the proposition that school term contact take place on alternate weekends and that the school holidays be shared.

1. Apparently, because the dispute appeared to be wider than competing proposals for contact, the inquiry eventually undertaken by the Court was indeed extremely far-ranging and rather than focusing entirely on the present and future needs of the child, dealt rather comprehensively with matters in issue between the parties that had occupied them for several years and most of which ought ultimately to have had little bearing on the outcome of the proceedings.  It is those issues, and the manner in which they were dealt with, that appear to have generated much of the heat behind the Notice of Appeal.

1. As already indicated, given the rather narrow ambit of the appeal, namely whether or not the shared parenting/contact arrangement should require the child B to spend either six nights in 28 with his father or 11 nights in 28 with his father during school terms and otherwise share the school holidays between the father and the mother, it seems both undesirable and unnecessary for us to deal with the myriad of complaints concerning the manner in which the trial Judge dealt with issues which are no longer relevant to the controversy between the parties. 

1. By way of example, it was common ground that the mother was working as a prostitute when she met the father.  For reasons which are not immediately apparent, whether the parties met in a social environment or in the course of the mother’s occupation seemed to generate a great degree of conflict in the evidence which the trial Judge felt compelled to endeavour to make findings about.  Ultimately he concluded that the mother’s version of events was more probable than that of the father and made findings accordingly.  Those findings are the subject of attack in the Notice of Appeal but they seem to us to have little bearing on the outcome of the proceedings.  Even if those findings were not open to the trial Judge, and we make no such finding, it seems to us that any such erroneous finding would be immaterial to the outcome of the proceedings.

1. Similarly there appears to be much heat generated in the course of the proceedings over the discovery of a replica pistol and a quantity of heroin in the mother’s car on the evening of 3 November 2003.  The trial Judge concluded that there were only two options open to him on the evidence, namely that:

“459.The choices are stark.  Either the mother herself placed the items in the car and thereafter had a male person telephone to report their presence, or the father placed the items in the mother’s car or arranged for them to be placed there, and either called the police or arranged for the police to be called to notify them of the existence of the items in the mother’s car.  There can be to my mind no third explanation. …”

1. His Honour concluded that of those two options the more probable explanation was:

“467.To my mind the episode of itself is more indicative of a person who has an absolute determination to win a court dispute at all costs.  I am satisfied that the father has the capacity to formulate a plan to the effect that if items such as a firearm and a substantial cache of drugs were found in the mother’s car this must reflect poorly upon her.  I am satisfied that the father has a capacity to think in these terms.  Further I am satisfied that he could afford to purchase the quantity of drugs found in the vehicle.  The Naltraxon bottle that was discovered in the car is to my mind explained by the mother as something that was left with the father on a separation.  This I accept.  I also accept her evidence regarding the holster being an item that the father had previously owned.

468.I am satisfied that the father’s capacity to plan and his ability to carry a plan through to conclusion, including his capacity to obtain a substantial quantity of an illegal drug, and afford to pay for that drug, make it more likely and probable that it was he who planted the items and then made the telephone call, so as to discredit the mother in the proceedings that were to occur or take place the very next day.  In all of the circumstances surrounding this issue I am satisfied that the evidence of the mother is to be preferred to that of the father.”

1. It was clearly open to the trial Judge on the evidence to have accepted the mother’s explanations that she knew nothing about the presence of the drugs or the replica pistol in her motor vehicle.  The trial Judge was, however, in error in determining that the father’s case was that the mother had herself placed those items in the car.  It was his case that the mother was an unsatisfactory custodian of the children because of the company she kept.  He asserted that she was keeping company with people involved in the drug trade and that the items may have been left in her motor vehicle by her associates.  There was much evidence concerning the child A’s father, Mr D, who was apparently a fugitive from the police.  There was evidence that the mother was conducting sexual relationships with a Mr T and a man known as E, both of whom the father was asserting were involved in the drug scene.  In his written submissions the father said (AB403):

“Mother kept keys to car on front wall near front door any person with access to the house therefore had access to the keys and car.  In my submission this fact alone would suggest that [the child A’s father], [Mr T], [the man known as E] or any other person visiting the mother could have taken the keys put the items in the car or taken the keys drove the car and left the items in the car.  There is so much more evidence to suggest that this occurred than that the father came gained entry to the car and planted the items.”

1. In the circumstances the trial Judge’s conclusion, that of the two options the more likely one was that the father planted the items in the mother’s car, must be seen as unsafe. There was a third plausible alternative suggested that the trial Judge failed to discount.  However such an error is not ultimately relevant to the outcome of the competing contact applications.  They were decided on the basis that the child’s welfare would best be served by a change in the existing shared parenting given the parties’ conflicting lifestyles and the child’s needs for stability once he entered the education system.  As will be seen, this was consistent with the opinions of the child psychiatrist who had been retained to prepare an expert report on the family.  In any event, it would have been clearly open to his Honour to reach the conclusion that there was a reasonable possibility, even if not a probability, that the father had planted the items.  This of itself was enough to raise concerns about the risks to the child of the father continuing to play a very dominant role in the child’s life. 

The significant findings that bear upon the outcome reached by the trial Judge.

1. Commencing at paragraph 21, the trial Judge identified a number of issues of fact. In relation to the mother he found:

•   The mother had a history of involvement with drugs and prostitution. 

·     She exhibited symptoms of a personality disorder and had been observed as having schizophrenia-like symptoms. 

·     She has responded to appropriate treatment in respect of this difficulty when she has attended in a proper and timely fashion for consultation. 

·     The child B is progressing adequately in her care.

·     That the mother’s mental health does not prevent her functioning at a satisfactory level to care for the child B.

1. As to the father:

·     The father was diagnosed as having a narcissistic disorder. 

·     He held the mother in poor esteem and there was a fairly high chance that his views relating to the mother would be transmitted to the child B. 

·     The father presented to the Court as a person with a need to win at all costs. 

·     The relationship between the child B and his father was an important one. 

·     Each of the parties loves the child B but the father’s love of the child was not such as it enabled him to put B’s interests above his own.  This was in contra-distinction to the mother whom the trial Judge was satisfied was a loving parent, who had an ability to put the child B’s needs before her own. 

1. Having dealt extensively with the reasons why it would be inappropriate to make an order for residence in favour of the father, and why it would be contrary to the child B’s interests to grant the mother’s application to suspend all contact, the trial Judge turned to the issue of shared parenting/contact saying the following:

“584.There to my mind appears to be very little prospect of the shared parenting continuing into the immediate future.

585.There is no real trust between the parties, nor so far as I can ascertain is there any desire held by either party to improve this situation or increase the level of trust.  The parties each feel strongly about the other and will, I am satisfied, for the future continue to do so.

586.There also appears to be little commonality between the parenting styles of these parties.  The difference in their styles of parenting will in my view become more and more marked as the child grows older.  I am satisfied that the father would be an indulgent parent and certainly with the father [the child B’s] material prospects are immeasurably higher than they are with the mother.

587.I am of the view that it is not desirable for the present arrangement to continue now that [the child B] has commenced school.  I am satisfied that it is in his best interests that he have and know the certainty of one home and have opportunities to see the other parent on a regular but by no means equally shared time basis.

588.I am satisfied that the father can provide [the child B] with opportunities and experiences that the mother cannot.  However I am satisfied that the father can do this as a contact parent equally as well as, if not better than, a residential parent.

589.I have come to the conclusion therefore, having regard to the matters that I have endeavoured to identify and deal with in these reasons for judgment, that [the child B’s] short, intermediate and long term future would be best served by having him reside with his mother, and with him seeing and spending a reasonable period of time with his father.

…

Contact

593.I am satisfied that the father should continue, as he has in the past, to have input into [the child B’s] life and for that purpose to see him frequently.  My concern is that, as I have already expressed, his attitude in dealing with other people and generally will be adopted by [the child B].  [The child B] would thus, apart from anything else, acquire false expectations as to what he can and cannot do.  However I am satisfied that if the child resides primarily with the mother then the father’s capacity to do this will be very substantially reduced.  Clearly this is not a case where even holding the concerns I do about the father he should be excluded from [the child B’s] life.

594.The father conceded in his evidence that if the court were satisfied that he had a narcissistic personality disorder that he should have no future part in [the child B’s] life.  Notwithstanding the finding that I have made that he does have such a disorder, I remain satisfied that it is for [the child B’s] best interest that he continue to know his father and have him as part of his life.

595.I am further satisfied that if the father were seeing [the child B] on a regular basis then one could confidently expect the father to act if any complaint were made by [the child B] to him that his mother was in any way failing to care properly for [the child B] for any reason.  In saying this I am not appointing the father as the arbiter of what occurs in the mother’s household or in regard to other matters concerning her lifestyle.  Merely I am indicating that I have no doubt that the father would act sooner rather than later if there were any difficulties apparent with the mother.

596.In the circumstances of the case I am satisfied that so far as [the child B] is concerned it would be appropriate for him to see his father each alternate weekend from after school Friday to before school on Monday and for one half of all school holiday periods.  So far as [the child B] is concerned, these are the orders that I propose to make.”

Dr Waters’ evidence

1. In his final report dated 8 January 2004, Dr R, a consultant child psychiatrist who had been requested to prepare a Family Report, concluded by saying:

“…I do not believe that the relationship between the parents is compatible with what at the moment amounts almost to shared parenting arrangement.  In this particular case for the stability of the children, it would probably be best if there was a very clear cut residential placement and an equally clear cut contact arrangement.  That is, the usual orders of alternate weekends and half school holidays. …”

This recommendation was entirely consistent with the conclusions reached by the trial Judge.

The relevant grounds of appeal

1. Given the limited nature of the extant controversy the following grounds of appeal appear to us to remain relevant.

“Ground 13.

His Honour has erred or given insufficient weight to the wishes of the children. 68f (2) (a)

Ground 14.

His Honour has erred or given insufficient weight to the relationship of the children with their parents or other significant persons.  68f (2) (b)

Ground 15.

His Honour has erred or given insufficient weight to the Effect of Change on the children.  68f (2) (c)

Ground 16.

His Honour has erred or given insufficient weight to the Practical Difficulty of Contact.  68f (2) (d)

Ground 17.

His Honour has erred or given insufficient weight to the Capacity of Each Parent attitude to the child, and responsibilities of Parenthood.  68f (2) (e)

Ground 18.

His Honour has erred or given insufficient weight to the Need to Protect the Children and the possibility of harm to the children by the mother.  68f (2) (g)

Ground 19.

His Honour has erred or given insufficient weight to the Capacity of Each Parent, attitude to the Child, and responsibilities of Parenthood of the children.  68f (2) (e) & (h)

Ground 26.

Procedural fairness

His Honour has erred in that by stopping the father on a number of occasions when he was engaged in cross examination and by not allowing him sufficient time to prepare after the mother’s dramatic change in evidence caused the father considerable procedural unfairness and showed a clear bais against the father in these proceedings.

Ground 27.

The 30 A report

His Honour has erred in that by having failed to take into account or failed to take into account properly the recommendations of the Family Report Counsellors.

His Honour has erred in that he failed and disregarded the Family Reports and the recommendations of the Family Report Writers.

His Honour has erred in that he failed to give sufficient weight to the Family Report, the Family Report Writer’s evidence and the recommendations of the Family Report Writer.

Ground 28.

The Makita issue.

His Honour has erred in that he failed to consider the Makita issue in regard to all of the experts report e.g. [Dr N], [Dr G], [Dr V] and [Dr R’s] reports. In that what the experts have based their opinions on is clearly wrong.

Ground 33.

Bias

His Honour has erred in that he has shown significant bias against the father, in that he has procedurally disadvantaged him and made adverse comments to and about him during the trail.  Further that despite the weight of evidence he has failed to make any findings against the mother or to refer any of the admitted matters onto the relevant authorities.”

Discussion

1. It is convenient to deal with grounds 13-19 together. This is an appeal from a discretionary judgment. As Stephen J said in Gronow v Gronow (1979) 144 CLR 513 at 519:

“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.”

It is not sufficient for an appellant to demonstrate that if more weight was given to one matter rather than another a different result might have been obtained.  Many parenting matters have no uniquely correct solution.  Different judges may reach opposing conclusions upon the same evidence.  A conclusion at either end of the spectrum may be incapable of successful appellate interference.

1. In this case the trial Judge set out at length, in paragraphs 503 to 562, his findings and conclusions as to each of the matters he was required to consider under s 68F(2) of the Family Law Act 1975 when deciding what orders would best advance the welfare of the child. We have read those findings carefully and cannot detect any inappropriate weighting having been given to any of the relevant matters. By way of illustration we set out hereunder his Honour’s considerations as to the child B’s wishes. He said:

503.So far as the wishes of the child [B] are concerned each of the parties seem to assert that he has expressed a wish to reside with them.  The only independent information I can find as to the child’s wishes is to be found in the reports of [Dr R].

504.In his report of 8 January 2004 [Dr R] at paragraph (d) on page 17 said:-

‘Bearing in mind [the child B’s] age, I did not directly elicit wishes from him.  However from his pattern of attachment to both of his parents, I formed the view that his wish would be that both parents play a significant part in his life.’

505.I accept from this material that [the child B] has not expressed a wish in specific terms to live with one parent or the other.  What I also accept from the doctor’s material is that the child has demonstrated an attachment to both parents, and from that the doctor has determined that [the child B] wants both parents to play a significant part in his life.  From that information I am not able to find that [Dr R] is satisfied that the child is expressing a wish for one parent over the other.

506.So far as any wish of the child therefore is concerned I find that there is nothing before me to indicate any positive wish by [the child B] for one parent or the other.  Conversely of course, there is nothing from the evidence I have that would indicate the child expresses a wish not to have either parent involved in his life.

507.In any event, the age of the child is such that one would not expect that a child would necessarily express wishes of any strength.  I accordingly find that this factor does not greatly assist me in respect of [the child B].”

1. We trust this example is illustrative of the manner in which the trial Judge approached the task required of him by the relevant legislation, carefully paying attention to the issues that he was obliged to consider before reaching his decision.  We see no merit in these grounds.

1. Grounds 26 and 33 raise issues of procedural fairness and bias.  In his oral presentation to us the appellant indicated that he was not wishing to proceed in asserting bias but continued his complaint that he had been denied procedural fairness.  In particular he referred us to the matters contained in his summary of argument at pp 153-157. 

1. This was a long and complicated trial that, as we have already indicated, traversed many issues that are not relevant to the remaining issue that requires consideration by us, namely the extent of contact that is appropriate in the circumstances.

1. The gravamen of the complaint raised by Ground 26 is that in the midst of the trial the mother changed her evidence dramatically relating to her drug usage and that the father was somehow denied procedural fairness in not being given adequate time or opportunity to deal with the change in her evidence. 

1. The transcript is quite illuminating.  At 9.53am on 13 February 2004, the fifth day of the hearing, the mother was recalled and gave some short evidence indicating that the contents of an affidavit which she was relying upon were incorrect and that she had, contrary to the evidence previously given, taken illicit drugs in April, May and June of 2002.  On resumption of Court, at the time for cross-examination by the father, the following discussion took place:

“HIS HONOUR:       Mr [S]?  [ie. the father] 

[MR S]:          Your Honour I – I’ve got no idea how to put this.  This is not right.  Now, this has got to stop, you know.  This is just not right.  Now, [the mother], you know, she needs help.  She doesn’t need this.  This is not right.  We shouldn’t be here.

HIS HONOUR:        Then what are you suggesting to me? 

[MR S]:          Your Honour.  I’ve got no – I don’t know what to do, your Honour.

HIS HONOUR:        The situation we all find ourself in is we’re day five of a defended hearing, [Mr S].  If you wanted to have some further short discussions particularly with [counsel for the mother] with [the Child Representative’s] help, then I’m prepared to give you that. 

[MR S]:          Thank you, your Honour. 

HIS HONOUR:        But apart from that, the only thing I can think of is we must get on with this.

[MR S]:          Your Honour, how can I get on with it when – I don’t want to attack her.  I don’t want to be here, your Honour. 

HIS HONOUR:        Then, [Mr S], if that is the case and if you can’t reach agreement then I may have no other option but to make the orders that [the mother] seeks.  My hands are – or rather, what I can or cannot do is fairly simple.  There are a number of courses I can take and they are virtually, I think, three and none.  One, the matter proceeds to a hearing and I deliver judgment and I make orders on a defended basis.  Two, if you feel that you can no longer take part in the proceedings the matter may well proceed on an undefended basis and I may make orders.  And, thirdly, a compromise can be reached and I could make orders by consent. 

Now, I’m not trying to be clever and I’m not trying to be smart at your expense.  Please believe that.  Can you think of any other course that you say is open to you?

[MR S]:          No, your Honour. 

HIS HONOUR:        Would you like to speak with [counsel for the mother]?

[MR S]:          I would like to speak to [counsel for the mother], your Honour.

HIS HONOUR:        Now, does that mean that you don’t want to cross examine or would you rather speak with [counsel for the mother] first?

[MR S]:          I’d rather speak to [counsel for the mother] first, your Honour.

HIS HONOUR:        Mr […] [ie counsel for the mother], I think [in] the circumstances that’s probably not an unfair request.  I do propose to step down for a few moments so that you can speak to each other.

[MOTHER’S COUNSEL]:   Yes, your Honour. 

HIS HONOUR:        Thank you.  The same as before, of course, if you need to speak with your client of course that is open.”

1. The matter was then adjourned for 20 minutes and upon resumption the father indicated that he wished to cross-examine the mother further and then proceeded to do so until the luncheon adjournment shortly before 1.00pm.

1. Given that no application was made either at that time or subsequently by the father for an adjournment to enable him “sufficient time to prepare” we are not persuaded that there was any procedural unfairness shown by the trial Judge.

1. As to the asserted failure by the trial Judge to give appropriate weight to the opinions of the family report writer, as asserted in Ground 27, we have already set out above the part of the report that deals with the issue of an appropriate line to be drawn between residential and contact arrangements.  The trial Judge’s conclusions are entirely consistent with that part of the report.  Accordingly we see no basis for the assertion that the trial Judge failed to take it into account or that he inappropriately disregarded it. 

1. In any event, ultimately the decision as to what is in the best interests of the child is that of the trial Judge and not of the welfare reporter.  Where a conclusion is reached by a trial Judge that is inconsistent with a welfare report the trial Judge is expected to explain adequately why he or she has come to a different conclusion but otherwise it is the trial Judge who makes the decision and not the family report writer.

1. The final relevant ground of appeal being Ground 28 is that the trial Judge erred in failing to consider the Makita issue in regard to all of the experts’ reports.  We perceive this to be a reference to the decision of the NSW Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where the Court discussed the principles to be applied when dealing with the inadmissibility of expert evidence. It was submitted that if the factual foundation upon which the expert opinion was based was found to be flawed then the opinion ought be ruled inadmissible or alternatively be given little weight.

1. The ground specifically refers to the evidence of four witnesses, Dr N, Dr G, Dr V and Dr R. 

1. Dr N was the mother’s treating psychiatrist.  The mother had been a patient of Dr N from August 1998 and had seen her on many occasions up to the date of the preparation of a report in November 2003.  The doctor had concluded that the mother did not suffer from schizophrenia but may present with schizophrenic symptoms. 

1. The doctor gave evidence that even if the mother had lied it was not particularly significant as, in the doctor’s view, the mother had been well “on the whole”. 

1. The trial Judge did not ultimately rely upon the doctor’s evidence in determining the contact issue.  He said at para 380:

“… I found that the doctor was not prepared to concede anything that might have been damaging to her patient.  Further, the doctor was not prepared to make any acknowledgement that her opinion and diagnosis in respect of the mother might be in any way altered if there was a factual shift from the matters upon which she had initially based her opinion.  Further I found her evidence as to her diagnosis of bipolar disorder rather than personality disorder of little assistance to me in this case.”

1. Dr G was a psychiatrist who had prepared a psychiatric assessment of the parties in July 2001.  He had not seen the parties since.  He gave evidence by telephone in the course of the proceedings and the issues concerning the mother’s unreliability as a witness were extensively put to him by the father. 

1. There is nothing apparent from the matters upon which he gave his evidence that would indicate it was inappropriate for the trial Judge to not accept it.  Indeed the trial Judge said of Dr G:

“394.I found this doctor to be an excellent witness.  He made it clear that in his report he did not indicate that the mother had a borderline personality disorder.  He reinforced in his report that he had found borderline personality traits.  He said that having seen other people’s reports he accepted the views of others that the condition was more severe, and this was because they had a longer and more detailed acquaintance with the mother than he did.

395…The doctor was anxious not to stray into areas outside his professional expertise, and the answers that he gave to me were reasonable, reasoned and proper.  I accept what he says.”

1. Dr V was a psychologist who had prepared two reports on the parties for the 2001 proceedings.  He had not seen the parties since that time but he gave viva voce evidence relating to the effect of the mother’s personality disorder on her ability to parent as well as giving evidence on the nature of the narcissistic personality disorder.  It is not apparent from the trial Judge’s recitation of Dr V’s evidence that any particular reliance was placed upon it.

1. It is also apparent that the evidence was given at a stage in the proceedings after the mother had given the additional evidence relating to her continued drug use in 2002.  In those circumstances we find it difficult to understand the nature of the complaint that in some way Dr V’s evidence should have been discounted or ruled inadmissible by reason of the change in the factual circumstances presenting itself to the Court.

1. The final expert relied upon was Dr R.  We have already made comment about his evidence.

1. It is clear from the cross-examination of Dr R that the issues relating to the reliability of the mother’s evidence were canvassed with the doctor and he was given ample opportunity to comment about them.  (See para 411 of the trial judgment).

Conclusion

1. By reason of the matters referred to above we conclude that there is no substance in the matters sought to be argued upon the appeal in so far as they are relevant to the issues which finally determined the trial.  It was in our view abundantly open to the trial Judge to reach the conclusion that continuation of a shared parenting arrangement for the child B was no longer appropriate for the reasons set out by the trial Judge and referred to in para 22 above.  Accordingly the appeal will be dismissed.

The child A

53. Whilst the Notice of Appeal contained a ground that sought to argue that it was inappropriate to discharge any contact orders relating to the child A, the matter was not strongly pressed in oral argument before us. In any event, at para 587 of the judgment, the trial Judge said that there was no point in making any order in respect of the child A given her very clear wishes to have nothing to do with the appellant. We detect no error in the approach adopted by the trial Judge nor the reasons he has expressed for discharging the existing orders (if any) that affected the child A.   

Costs

1. The mother submitted that in the event that the appeal was dismissed she should be granted costs on an indemnity basis.  In the alternative she sought costs on a party/party basis.

1. The child representative sought an order for one third of his costs on a party/party basis in the event that the appeal was dismissed.

1. We think it appropriate that the costs orders be made on a party/party basis.  Whilst it is clear that the appeal has been unsuccessful and that most of the grounds had little relevance to the matters that were ultimately in issue between the parties on the appeal, we are not of the opinion that it is appropriate that the costs orders be made on an indemnity basis.

Orders

1. That the appeal be dismissed.

1. That the appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.

1. That the appellant pay one third of the child representative’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.

I certify that the  preceding 56 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.


Legal Associate