Stanley & Rena (No. 2)
[2009] FamCAFC 109
•12 June 2009
FAMILY COURT OF AUSTRALIA
| STANLEY & RENA (NO. 2) | [2009] FamCAFC 109 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – CHILDREN – With whom children spend time – Following separation the mother and children moved from Northern Queensland to the Sunshine Coast, father remained – At trial the Federal Magistrate accepted evidence that the father was emotionally abusive and controlling – Orders were made that the mother have sole parental responsibility and provide any written communication from the father to the children – No order was made for the children to spend face to face time with the father – Father appealed asserting, inter alia, that the Federal Magistrate treated ‘abduction fears’ of the children incorrectly and ought have ordered videoconferencing between the children and the father and that the family report lacked integrity – No merit in any ground of appeal – Family Report process did not create bias against father – Findings open to the Federal Magistrate – Appeal dismissed FAMILY LAW - COSTS – Grounds of appeal were insubstantial – Appellant wholly unsuccessful – Appellant father to pay costs of the respondent mother |
| Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Whisprun Pty Ltd (formerly Northwest Experts Pty Ltd) v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Mr STANLEY |
| RESPONDENT: | Ms RENA |
| APPEAL NUMBER: | NA | 7 | of | 2009 |
| FILE NUMBER: | BRM | 2705 | of | 2006 |
| DATE DELIVERED: | 12 June 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Warnick, Boland JJ |
| HEARING DATE: | 21 May 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 December 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1414 |
REPRESENTATION
| APPELLANT: | Appears in person |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Butler McDermott Solicitors |
Orders
That the appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Stanley & Rena is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 7 of 2009
File Number: BRM 2705 of 2006
| Mr STANLEY |
Appellant
And
| Ms RENA |
Respondent
REASONS FOR JUDGMENT
In the eighteen years of their marital cohabitation, which ended in December 2005, Ms Rena and Mr Stanley had five daughters and one son, the second eldest child. At the time of separation the family lived in Northern Queensland where the father, a serving Queensland Police Officer, had been transferred about twelve months beforehand. On separation, the mother and children relocated to the Sunshine Coast. The mother’s parents lived there as did the father’s family, particularly his mother. The father took extended leave from his employment and stayed with his mother on the Sunshine Coast from January to early June 2006, and the children spent time with him. The father otherwise continued living in Northern Queensland.
The proceedings in the Federal Magistrates Court were commenced in April 2006 by the mother’s application for property settlement. In his response, the father sought only two orders in respect of the children, which were:
…
(4)That the court order the wife to allow the children to speak to their father and vice verca (sic) via video conferencing or similar on a daily/nightly basis or as requested by the father or the children.
(5)That the wife pay for 100% costs of travel visitation to the father of the children, for 50% of school holidays.
However, by trial, which began before Federal Magistrate Wilson in November 2006, the father sought a shared parenting arrangement on the basis that he had applied for a transfer in his employment to the Sunshine Coast.
After two days of hearing in November and one in mid-December 2006, Wilson FM reserved his decision. In early 2008, while judgment remained reserved, the mother, and then the father sought leave to reopen their respective cases. Both parties were permitted to reopen at least in respect of parenting issues. A family report was ordered for the reopening. Further evidence was taken on 5 and 6 November 2008. By then, the children were aged, 19, 17, 15, 11, 8 and 5 years of age.
Also by then, there had been no meaningful contact between the children and their father for a year or so.
By orders made on 23 December 2008, Wilson FM directed that the five children still under the age of eighteen live with the mother, that she have sole parental responsibility; and that she provide to the children any letters or gifts sent to them by the father and encourage the children to reply. The orders did not provide for the children to spend any time with the father. These reasons relate to the father’s appeal against the parenting orders.
Some of the issues which the father pursued on appeal are best understood in the context of two matters.
At trial, the circumstances and consequences of an event in October 2006 loomed large. As Wilson FM described that event in his reasons, the father had arranged to spend some time with four of the children including the three youngest. Upon arriving at the mother’s house after spending time with the children, three of them alighted, leaving the youngest, T, restrained in a car seat. As the mother was about to release her from the harness, the father said he was taking T for the week. “The father pushed the mother out of the vehicle and commenced to drive forward. …” The learned Magistrate found that that incident “had a cataclysmic effect on the relationship between the father and his children (other than [T]) thereafter”.
Secondly, the Federal Magistrate had the assistance of a family report by Ms L, a social worker. Ms L recommended visitations – between father and younger children at least - in a contact centre on a monthly basis, after further counselling and preparation, a review in 6-12 months and that the parents complete post-separation counselling. The Federal Magistrate accepted Ms L’s opinions, with two qualifications (later to be mentioned).
The father, who appeared without representation, filed two Notices of Appeal with differing grounds, but confirmed at the hearing before us that his arguments were set out in his written submissions. We summarise those as:
(i)An attack on the integrity of the family report.
(ii)That the Federal Magistrate failed to treat properly the “abduction fears” of the mother and children said to arise as a result of the October 2006 incident.
(iii)That an order ought have been made for video conferencing between father and children.
The father raised a few other, lesser, contentions which will be briefly dealt with.
As all are specific points, their worth will likely only be gauged within the context of his Honour’s assessment of the other factors identified by him. Therefore, we next set out a summary of the cases before, and findings of, Wilson FM. The Federal Magistrate recorded apparently with reference to the father’s case for a shared parenting arrangement:
10.In evidence given during the first stage of the final hearing the father gave evidence that if he did not secure a transfer within six months, he would resign his employment with the police service and seek alternative employment on the Sunshine Coast. That did not happen.
As to the mother’s case, the Federal Magistrate said:
22.The mother’s case changed considerably between the commencement and the end of the final hearing. The mother’s case concluded with the submission that the father should spend no time with his children until it is initiated by them when they are old enough to deal with his behaviour. This was put on the basis that the children needed to be protected from, in particular, psychological harm from being forced to spend time with their father. …
The learned Magistrate found that he was impressed by the mother and, with some exceptions, accepted her evidence. On the other hand, the father was prone to being vague and evasive at times and to making accusations that were not supported by evidence.
His Honour expressed “real concerns about the father’s state of mental health” and in particular that the father was:
26.…a person with no insight into his own behaviour or shortcomings, and with no insight as to how his behaviour in the past has destroyed his relationship with his former wife, his elder children and, more recently, his younger children. …
…
39.I accept the mother’s evidence that during the relationship the father was controlling and aggressive. I accept the mother’s evidence that the father was emotionally abusive. I accept that the father displayed behaviour in front of the children that is of concern. The father has struck [W] on more than one occasion. The father has struck [J] on the legs so hard her legs turned purple. At paragraph 53 of her affidavit the mother says [J] curled up in the foetal position on her bed and had to be comforted by her mother for an hour.
40.… I accept that if the mother and children did not behave as the father mandated, they would be verbally abused. …
41.… I accept that the father has demonstrated outbursts of anger in front of the children such as sweeping cardboard boxes off his desk with the wave of his arm such that they struck some of the children. …
…
48.I accept that by the time the mother decided to leave the father, his behaviour towards her and the children was totally unacceptable and plainly amounted to psychological abuse. The father did not tolerate any of the children, or the mother, dissenting from his views. …The mother was openly denigrated in front of the children. The mother was concerned that the children would form the view that the father’s behaviour was normal and appropriate as a role model.
The learned Magistrate discussed the position with regard to the father spending time with the children after his arrival on the Sunshine Coast concluding:
52.… The father’s refusal to put himself out to spend time with his children speaks volumes for his attitude to parenting generally.
His Honour also found:
57.…that the father was permitted to spend as much time as he reasonably wanted to with the children until he was required to return to [Northern Queensland] on 5 June 2006. …
58.I accept that following his return to [Northern Queensland] the father enjoyed regular telephone communication with the children. …
Not long after the father’s return to Northern Queensland, for reasons set out in the Federal Magistrate’s judgment, in about August 2006, the relationship between the oldest child (R, 19 years in late 2008) and the father broke down. Then, there was “the abduction incident” in October 2006.
In reference to the aftermath of the “abduction incident”, Wilson FM said:
69.Notwithstanding this appalling behaviour on the part of the father, the mother continued to encourage the children to spend time with their father. …
70.After the first three days of hearing I made interim orders facilitating the father spending further time with his children. At that stage, the mother was amenable to a continuing relationship between the father and the children. The father spent time in accordance with those orders. The mother permitted additional time until September/October 2007.
…
72.The father says that [G] [15 years by December 2008] has developed a negative attitude towards him. The father ascribes this to an incident where he scolded her in relation to something and said: “Please don’t follow the bad example of your mother”. The father again recognises the inappropriateness of what he said, but it provides another example of the father’s inability to parent the children without denigrating the mother. The mother says, and I accept, that [G] has refused to speak with her father since early 2007.
73.The father spent time with the children (apart from [R] and [G]) between 11 February 2007 and 27 February 2007 for two periods of time. The father spent further time with the children between 23 June 2007 and 8 July 2007 on the Sunshine Coast. The father says that during this period [M] started displaying a negative attitude. The father spent further time with the children, except for [R] and [G] between 26 September 2007 and 3 October 2007 at the Sunshine Coast.
…
75.It was during the time spent in the September/October 2007 school holidays that another incident occurred. … The father gave the two youngest children sepia tablets. …
76.During this school holiday period I accept the mother’s evidence that [W] [17 years in December 2008] and [M] [11 years in December 2008] left the father’s care early, and only [J] and [T] stayed for the week. I accept that on arrival home [W] said that he didn’t want to spend time at his father’s again. I accept that [M] was upset and teary.
77.[J] told her mother that she felt sick in her stomach from the tablet that she was given by her father.
78.The father says during this time he saw sadness and confusion of [sic] the faces of [J], [M] and [T]. …
79.Thereafter the mother refused to allow the children to spend time with their father. The father has attempted to telephone the children but accepts that they are unwilling to talk to him.
80.Other events no doubt contributed to the mother’s decision. …
[These the Federal Magistrate then discussed]
…
89.… All children except [T] now refuse to spend time with their father.
The learned Federal Magistrate summarised Ms L’s family report, including that she:
(18)Opined that the children are particularly close and ideally should not be separated in their care arrangements and/or in the context of any future time with the father;
…
(22)Says that a consistent theme portrayed by the mother and five of the children is that the father has historically experienced anger management difficulties and a propensity for aggression both verbally and physically towards them. Another theme that they consistently presented is the propensity of the father to be somewhat controlling and non negotiable with regards to issues of health and medication;
(23)Says at paragraph 7.20 that [G] and [M] have been compromised personally and in the context of their schooling and will not benefit at this juncture from being forced to have communication and/or time with their father until they are ready and their counsellors support them in this regard;
(24)Opines that [T] is not likely to cope in spending time with her father without the older children being present;
…
93.… [Ms L] said in her oral evidence that the children’s views were their own views. [Ms L] did not accept that [sic] mother was alienating the children from the father.
Then, Wilson FM turned to his conclusions:
96.I accept [Ms L’s] opinions with two qualifications. …
97.The two matters that [Ms L] recommended with which I do not agree are, first, that the parties attend post separation counselling and a parenting program; and, secondly, that the father continue to spend supervised time with the children.
98.I have already touched upon the father’s attitude towards counselling when it was suggested by the mother. [Earlier, Wilson FM had said:
35.[Ms L], whose evidence I will discuss in due course, recommended that the parties attend post separation counselling. The mother has already suggested to the father that they do so. He has been unwilling to attend. The evidence just extracted reveals his attitude towards such matters, and the unlikely usefulness of such a process.]
In my view, until the father addresses his own behavioural and/or psychological problems nothing will be achieved from counselling. He is firmly of the belief that he has done nothing wrong, that all problems are the mother’s fault and that there is no point revisiting matters from the past because that will not achieve anything. With that mindset, any counselling and/or parenting program is unlikely to achieve anything.
99.Of course, the father may take it on himself to complete a parenting course, or to undergo counselling. It would be commendable if he did so.
…
101.Whilst there would obviously be a benefit to each of the children to have a positive and meaningful relationship with their father that begs the question as to whether such a relationship is possible. The Court must also take into account the other primary consideration in s.60CC(2)(b) of the Act.
102.I accept the submission made by the mother that the father, because of his personality and lack of insight simply does not have the capacity to sustain a meaningful relationship with his children at the present time. I accept that the father’s behaviour in the past has been emotionally damaging to the children. I conclude that there is a substantial risk that the father will continue to behave as he has in the past should he continue to have time with the children. That is because he cannot comprehend that he is at any way to blame for the loss of the relationship with his children and has no insight into his own behaviour.
103.The mother was for a long time prepared to encourage and facilitate the relationship between the father and his children. The position has been reached where the mother is simply exhausted and can no longer in good conscience support the relationship between the children and their father. To do so may place her own relationship with the children in jeopardy.
104.In my view to protect the children from ongoing psychological harm, they should not be forced to spend time with their father.
105.I have, in the course of these reasons, touched upon many of the additional considerations in s.60CC(3) of the Act. Each of the children do not wish to spend time with their father. The three oldest children’s wishes should be given significant weight. With such a large sibship it is inevitable that the views of the older children will permeate to the younger children.
106.The relationship between the father and each of his children except [T] is now damaged, due to the father’s behaviour. [T] should not be required to spend time with the father on her own. [Ms L] opines that she could not cope. I agree.
…
109.The mother says, and I accept, that the children are now happy. They settled well into school on the Sunshine Coast. [R] now attends university. The mother says that her own emotional state has improved since she has not had to deal with the father.
…
112.I accept that there has, in the past, been family violence, perpetrated by the father towards each of the children except [T].
…
116.It is now a matter of the father trying to rebuild his relationship with his children and attempting to restore their trust in and respect for him. Face to face time at this stage would cause the children considerable distress. They would not be compliant with orders to that effect. The father should be permitted to send the children letters and presents, subject to him not denigrating the mother. When the children are old and mature enough to want to explore a relationship with their father, I am satisfied that the mother will encourage and support this. To that end, the father should advise the mother of any changes to his telephone number and address. The mother should do likewise.
We turn to the father’s arguments on appeal.
Attack on the integrity of the family report.
Expressed in terms of an appeal, this point ultimately is that Wilson FM should not have accepted certain opinions of the family reporter.
The father’s argument has two prongs. The first is that the sequence in which interviews were conducted allowed the mother to “discredit” the father’s earlier comments but the father was not afforded an opportunity “to either defend his earlier statements or to object to any claims brought up by the” mother. In her report, Ms L set out the following:
Interviews and observations
27.08.08 - At the Alexandra Building, the following interviews and observations occurred:
·Mr [Stanley]
·Ms [Rena] and children observed together
·The children [G], [M] and [J] individually
·The children [R] and [W] together ([T] could not be meaningfully interviewed)
·The children observed with Mr [Stanley]
·The children with Ms [Rena] before leaving with her
·Mr [Stanley] further
Acknowledgements
*Both parties cooperated in the Report process, agreeing willingly to the interviews on the basis of the report writer’s explanation as to the reportable basis and nature of the report. Both parties were cooperative with regard to the child being observed with both parties and interviewed. The parents were kept separately and the children were not alone with Mr [Stanley] at any time, given the expressed concerns of Ms [Rena] and children in this regard. Mr [Stanley] was co-operative despite his disappointment in not having time with the children after the interviews and observations.
**Notes were taken contemporaneously throughout the interviews. Neither party raised any concerns or conflicts in relation to the report writer.
We observe that the father was the last person interviewed, though acknowledge that may not have provided him with the opportunity which he suggests he was denied. More importantly, the submission of the father misconstrues the report process. There is no sign, and certainly the father did not point to any, to show that the report writer drew conclusions of fact by the preference of the version of one party over the other. Rather, her report sets out the assertions of each of the parties, her observations, information from the children, opinions and recommendation.
We reject the submission that there was anything about the process employed by the report writer which “creates bias in favour of” the mother.
The second point made by the father relates to the content of a DVD (sometimes referred to as a CD) upon which he had recorded the children while they were with him, depictions which he contended showed that the children were happy and comfortable in his care.
In her report, Ms L recorded the documents which had been put before her, including copies of reports filed in relation to the children with regard to counselling with a psychologist, documents provided by the father and:
…He also referred to a CD of the children when they had been in his care as indicative of them being secure, content and happy with him.
These documents and CD have been considered in the preparation of this report following the interviews.
The father contended that during cross-examination Ms L admitted that she had not viewed the DVD and that consequently, though she later stated that having seen the content of the DVD in court it would not have changed her conclusions, this indicated that “she had made up her mind regardless of evidence that was put before her”.
We observe that in her report Ms L did not literally declare that she had viewed the CD. Her statement that it had been considered could be consistent with taking account of the father’s description of its contents to her. On the other hand, the ordinary expectation upon reading what Ms L wrote might well be that she had viewed the DVD.
In cross-examination by the father, Ms L said:
You refer to the CD that I gave you at the start of the report, but don’t mention anything in the report itself about the CD?---No, you talked about the CD a lot in the beginning, yes. I did attempt to watch it, and, in fact, I went to have another look at it last night and I couldn’t find it in the envelope, so.
When you say you attempted to watch it - - -?---Well, initially in my office, and it’s often the case, I’ve got an old computer in there that I type on, I couldn’t watch it on that computer. So I don’t recall actually – the CD, what was on the CD
Okay, so - - -?---So when I read my report yesterday, I thought I must have another go at watching this CD, and I couldn’t find it, so I’ve got no - - -
so you’ve written a report - - -?---whether you’ve taken it or whether you left it with me.
I did leave it with you?---Yes. So yes, but that – I accept from you that the CD was given to me in – a lot of report writers don’t look at CDs, but I always listen to tapes and CDs and do whatever I need to so (a) to get more information and (b) to keep parents happy, and you certainly presented that as something that would be indicative of you having a good time with the children, and I accepted that, and I have considered that. But I don’t think even if it was – even if saw hours and hours of wonderful experiences with them, it would not change anything that I’ve concluded in terms of the dynamics that come out of this process.
As seen, the report writer expressed a view of the likely significance of the DVD before she saw it in court, but based on what she had been told of its contents. That view was maintained after she had seen it. This sequence is not quite as the father presents it.
A further deficiency in the father’s argument is that, while the course of events with regard to the DVD and Ms L’s opinions and recommendations might have led a judicial officer to have some reservations about inflexibility or preconception on the part of Ms L, these circumstances need not necessarily have led to that result. There is nothing internally inconsistent with Ms L’s evidence that after viewing the DVD, the content would not have changed her mind.
Moreover, Wilson FM himself, after viewing the DVD, said:
96.…I should add that during his final submissions the father again demonstrated his lack of insight by accusing [Ms L] of behaving inappropriately and unfairly during the reporting process. He pointed out that [Ms L] did not view a DVD showing the children with the father. I viewed the DVD and it was put into evidence. It represents snapshots of time and does not portray the totality of the relationship between the father and his children. The father could not seem to accept that it was his actions rather than those of the mother or of [Ms L] that caused the children to become estranged from him.
As we endeavoured to explain to the father during the hearing of the appeal, a DVD or a photo album can only, as his Honour said, provide snapshots of time and cannot provide insight into the totality of a parent-child relationship. There is thus no merit in the father’s arguments about this matter.
That the Federal Magistrate failed to treat properly the “abduction fears” of the mother and children said to arise as a result of the October 2006 incident.
About this, the Federal Magistrate said:
63.An incident occurred on 23 October 2006 that was the subject of much interest and scrutiny at the first three days of the final hearing. It had a cataclysmic effect on the relationship between the father and his children (other than [T]) thereafter.
64.The father had arranged to travel to the Sunshine Coast. He agrees that he refused to discuss his plans with the mother. He spoke to one of the older children ([W]) and said he was arriving. The mother arranged for one of the children ([T]) to be collected from kindergarten so that she could spend time with the father. The father was going to take the children to the park. He refused to provide the mother with a return time. I accept that this was typical behaviour of the father, and again demonstrates his lack of respect for and courtesy towards the mother of his children.
65.The father returned to the mother’s residence. [M] alighted from the vehicle and went into the house. [W] and [J] were seated in the rear row of seats. [T] was restrained in a car seat in the middle row of seats.
66.There is some conjecture as to exactly what happened next but it is common ground that the vehicle engine was running and the rear sliding door was open. [W] and [M] managed to get out of the vehicle. I accept that the mother leant into the vehicle to release [T] from her harness. As she did so, the father said that he was taking [T] for the week. The mother responded by saying that the father’s suggestion was ridiculous. The father asked the mother to get out of the vehicle. She refused. The father pushed the mother out of the vehicle and commenced to drive forward. The mother was extremely concerned because [T] was partially released from her safety harness. She ran after the vehicle. The father stopped after a short distance. There was a verbal altercation between the parties during which the father abused the mother by calling her a ‘hysterical bitch’. [T] was crying and very upset. The other children saw what happened and were upset. [W] stormed into the house and said “He’s lost me”.
67.The father expressed remorse at the hearing for this incident, and said it was an isolated incident. However, it obviously deeply traumatised some of the children. [J] and [T] in particular remain frightened that the father is not going to return them to their mother. This was a concern that was raised during the interviews with [Ms L], when the father suggested that he would take [J] on a trip after the interviews. She was very upset.
The father’s argument runs along these lines: the children had had enjoyable contact with the father in the months following the incident; the children had not spent time with the father since about October 2007; the expression of “abduction fears” by the children in August 2008 when the family report interviews were conducted was “out of the blue”. The mother then still held abduction fears. The children may have been influenced by these fears. The abduction fears were taken as the main reason why the children did not wish to spend time with the father, but in the circumstances should not have been given that significance.
The father also argues that the Federal Magistrate failed to address the father’s submissions about these matters in his judgment.
Connected with those contentions is a submission that the Federal Magistrate ought have ordered the mother have treatment to overcome any fear that she had in relation to the father. The report writer had said that the mother’s fear, and that of the children, of abduction by the father, was an issue that needed to be addressed prior to any progression being able to be made with regard to the children having unsupervised time with the father.
The father also argues that contact was withdrawn simply because he gave the children a homeopathic alternative remedy.
The father’s arguments overlook a number of matters. These include that other issues, apart from the “abduction incident”, were put forward by the children as impacting on their attitude to their father, and that the report writer’s opinions were that the children’s views were their own views and that the mother was not alienating the children from the father. The father’s argument also denies the possibility that the children remain affected by the abduction incident.
Another argument possibly connected with the attack on the way in which Wilson FM dealt with the “abduction fears” is criticism that the father makes of conclusions drawn or not drawn from the fact that the children attended counselling, as he saw it, commencing after he had not had contact with them for some 12 months or so. The argument seems to be that, therefore, any need for counselling must have arisen out of circumstances which had nothing to do with him and quite possibly had to do with the mother’s “abduction fears”.
The father also seemed to argue that claims by the mother that she had thought the children would benefit from counselling when the parties were together but that the father would not agree, must have been false - because she did not take the children to counselling immediately the parties separated - or the failure to take them to counselling at that time somehow supported his case, possibly by reflecting poorly on the mother.
These propositions however are not established for several reasons.
The mother deposed in her affidavit filed in October 2006 that she was arranging counselling for [R] and had seen a school counsellor in relation to [M].
The father’s arguments about the steps the mother took or did not take, in relation to counselling, put as inconsistent alternatives, thus seem to lack cogency. Certainly we are not satisfied that they point to any error on the part of the Federal Magistrate.
In support of his contention that the evidence of the children’s fears, and “abduction fears” in particular was not treated properly by his Honour, the father also complains that the children were interviewed by the report writer before seeing the father, who, as seen, had not seen them for 12 months prior to the assessment. Of this sequence of events, the report writer is described by his Honour as having:
92.…
(12)Observed that the children appeared well cared for and were particularly well behaved and polite children. It was evidenced by the questions of the children that they did not particularly want to see their father during the interview process but they indicated they would be cooperative with regard to the process and they were appropriately supported by their mother;
…
Wilson FM then set out statements that the Ms L attributed to the children about their attitude to seeing their father and issues which had given rise to those attitudes and his Honour added that Ms L:
92. …
(17)Notes that after some persuasion the children agreed to have a visit with the father as a group on condition the report writer was present at all times. The father was observed to be appropriate in his interactions. After 20 minutes [M] said she was feeling sick and asked to be excused. Within a couple of minutes [J] excused herself. The session with the father terminated not long after this;
We think it well open to Wilson FM not to find that the course Ms L took, by way of ascertaining the wishes of the children with regard to seeing the father and preparation of them for spending time with him at the interviews, had in any way detracted from the weight to be given to what they told Ms L.
That an order ought have been made for video conferencing between father and children.
We reject this contention in a case in which the learned Federal Magistrate found, as already seen:
·all children except T refused to spend time with the father;
·orders should not require any of the children to spend time with the father;
·G and M would not benefit from being forced to have communication with the father;
·face to face time would cause the children considerable distress;
·the father had no insight into the effects of his behaviour on the children;
·the father denigrated the mother to the children;
·the children were unwilling to talk to the father.
It was well open to his Honour to consider the immediacy of contact by video as not in the children’s best interests.
Miscellaneous arguments
The father criticises:
(a)a finding, critical of the father, by the Federal Magistrate arising from the father’s attack on Ms L’s impartiality,
(b)a failure of the Federal Magistrate to mention the evidence of a Dr B, put forward in the father’s case,
(c)a finding about the father’s attempts to set up video-conferencing,
(d)that “Comments made on the appellant’s mental health are mere conjecture and should not weigh in any decision made by the court in particular to his capacity as a father”,
(e)a finding that the father was unwilling to attend counselling.
(a) the finding arising from the father’s attack on Ms L’s impartiality
The finding was expressed in paragraph 96 of Wilson FM’s reasons, repeated here:
96.I accept [Ms L’s] opinions with two qualifications. Before I explain what they are, I should add that during his final submissions the father again demonstrated his lack of insight by accusing [Ms L] of behaving inappropriately and unfairly during the reporting process. He pointed out that [Ms L] did not view a DVD showing the children with the father. I viewed the DVD and it was put into evidence. It represents snapshots of time and does not portray the totality of the relationship between the father and his children. The father could not seem to accept that it was his actions rather than those of the mother or of [Ms L] that caused the children to become estranged from him.
As seen, from all the passages of his reasons quoted, Wilson FM based his conclusion about the father’s lack of insight on many circumstances. On its own the father’s accusations against Ms L may not have led to such a finding, but in this case having regard to the many findings to similar effect we think it open to his Honour to regard the attack on Ms L’s impartiality in the way he did.
(b) the failure to mention the evidence of Dr B
Dr B deposed that she was the sister-in-law by marriage of the parties. She deposed that:
8. In the time I have known [Mr Stanley] I have not seen him display any abnormal behaviour towards his children before and after the separation.
However, earlier she had outlined her contact with the family:
2. …I have resided at [M Lane] since September 2007.
…
5. During my annual visits and since I have moved to [M Lane] I have had frequent contact with [Mr Stanley] and his children both before and after his separation.
In Whisprun Pty Ltd (formerly Northwest Experts Pty Ltd) v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said:
[62] …A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
We do not think a failure by the Federal Magistrate to mention the insignificant evidence of Dr B constitutes appellable error.
(c) the finding about the father’s attempts to set up video-conferencing
Wilson FM said:
58.…The father tried to instigate having video conferencing with the children. He did not raise this with the mother. Instead the father dealt with [W], and provided him with the necessary computer equipment to enable the video conferencing to take place. On learning of the proposed video conferencing the mother became alarmed. She was concerned that it would enable the father to effectively spy on her home. Once the nature of the video conferencing was explained to her, and that there were appropriate safeguards, I accept that the mother was prepared to allow it to occur. By that time, the father had retrieved and disposed of the computer equipment, so the matter did not proceed.
The father’s point is that there were two attempts to provide the children with the equipment for video-conferencing. Accepting that, we are not persuaded that in the passage quoted the learned Magistrate was referring to other than the first attempt. The passage is in a sequence wherein the Federal Magistrate was reviewing chronologically the contact between father and children post-separation. Therefore, the passage contains no error of fact.
(d) findings (or “comments”) about the father’s mental health
Wilson FM said:
25.The father in the witness box, whilst prone to being vague and evasive at times, and to making allegations that were not supported by evidence, did not portray as a person beset with mental illness. He was calm and measured. However, when regard is had to the totality of the evidence I have real concerns about the father’s state of mental health. [Ms L] recommended a review by a psychiatrist. That did not happen. There was no evidence that the father is currently suffering from a diagnosed mental illness and I am unable to find that to be the case. The father gave evidence that he is not currently under the care of a treating psychiatrist.
Clearly, the Federal Magistrate refrained from findings about the father’s mental state, though expressing “real concerns” about it. There was ample evidence to support a conclusion that “real concerns” arose.
(e) the finding that the father was unwilling to attend counselling
As earlier seen, Wilson FM said:
35.[Ms L], whose evidence I will discuss in due course, recommended that the parties attend post separation counselling. The mother has already suggested to the father that they do so. He has been unwilling to attend. The evidence just extracted reveals his attitude towards such matters, and the unlikely usefulness of such a process.
The father relies upon a passage in his cross-examination:
And are you proposing that on 1 January you don’t spend any time with them and go to counselling, or do you propose that you spend every day off with them? I’m just trying to get a handle on what your proposal is?---I would like to see them more – like, on a regular basis, on my days off, and certainly I’d be – if the Court would see fit to order that counselling took place, I’d participate in that process. I think that - - -
The following passage is also noteworthy:
Well, can I put it another way, if I was to order that you, the mother and the children, or some of them, go to counselling, would you accept that any time to be spent with the children be as guided by the counsellor, or do you want something more definite that that?---I have – so far, your Honour, my faith in counsellors isn’t very strong, given my experience - - -
So, you want something more definite?---Yes, your Honour.
The finding in paragraph 35 above relates to the father’s attitude to counselling when it was suggested by the mother, not to the father’s responses in Court.
We see no merit in these arguments.
Conclusion overall
This in an appeal from a discretionary judgment. Of the constrained position of an appellate court in such instances Brennan J said in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178:
The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
And as McHugh, Gummow and Callinan JJ said in CDJ v VAJ (1998) FLC 92-828:
[152] The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interest are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897 8, Lord Fraser of Tuyllybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Having regard to that statement of principle and our conclusions in respect of the individual arguments of the father, we are satisfied that there is no merit in the appeal as argued and that it ought be dismissed.
Costs
The mother seeks her costs of and incidental to the appeal. The mother has no legal aid. We are aware of the financial circumstances of the parties which are set out in the judgment dealing with the orders for alteration of property interests. We consider that, though perhaps arguable, most of the grounds raised on appeal were insubstantial in nature. That, the nature of the proceedings and the result in our view favour an order for costs.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 12 June 2009
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