STEEL & GALLOWAY
[2012] FamCAFC 25
•22 February 2012
FAMILY COURT OF AUSTRALIA
| STEEL & GALLOWAY | [2012] FamCAFC 25 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal from a decision of a Family Court judge that the child live with the father and spend only supervised time with the mother, with provision for the mother to have unsupervised time after a year – In circumstances where the child was living with the mother at the time the orders were made – Whether the trial Judge relied uncritically on the report of the Single Expert and/or gave it inappropriate weight – The trial Judge dealt appropriately with the evidence of the Single Expert – Whether the trial Judge failed to apply the provisions of s 140(2) of the Evidence Act 1995 (Cth) and the “Briginshaw principles” – The trial Judge applied the correct standard of proof when making the findings he did – Whether the trial Judge erred by failing to make a “Jones v Dunkel” inference arising from the father’s failure to call a witness – There was no basis upon which a “Jones v Dunkel” inference could have been drawn against the father. FAMILY LAW – APPEAL – CHILDREN – Whether the trial Judge erred in his findings concerning the costs of supervision – Appellable error established in finding that there would not be any significant expense associated with the mother spending time with the child and in failing to give reasons why the mother should meet all of the costs – Appeal allowed in part – The proceedings be remitted for rehearing concerning the responsibility for the costs associated with the supervision arrangements – Rehearing if practicable to be conducted by the same Judge who made the orders appealed – No order as to costs in relation to the appeal – Costs certificate granted only to the respondent for the appeal, but to both parties for the rehearing. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 Coulton v Holcombe (1986) 162 CLR 1 Finlayson v Finlayson & Gillam (2002) FLC 93-121 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Qantas Airways Ltd v Gama (2008) 167 FCR 537 R v TA [2003] NSWCCA 191 Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] 68 ALJR 304 |
| APPELLANT: | Ms Steel |
| RESPONDENT: | Mr Galloway |
| FILE NUMBER: | SYC | 6615 | of | 2007 |
| APPEAL NUMBER: | EA | 90 | of | 2011 |
| DATE DELIVERED: | 22 February 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace and Murphy JJ |
| HEARING DATE: | 30 January 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 July 2011 |
| LOWER COURT MNC: | [2011] FamCA 550 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr de Robillard |
| SOLICITOR FOR THE APPELLANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Wheelhouse SC |
| SOLICITOR FOR THE RESPONDENT: | Slade Manwaring Solicitors |
Orders
The appeal against the orders made by the Honourable Justice Fowler on 8 July 2011 be allowed in part.
Paragraph 4 of the orders made on 8 July 2011 be set aside.
The proceedings be remitted for rehearing concerning responsibility for the costs associated with the supervision arrangements contained in paragraph 3 of the orders made on 8 July 2011 (and, if appropriate, variation of those arrangements).
The rehearing be conducted by the Honourable Justice Fowler if practicable.
The orders made by the Honourable Justice Fowler on 14 September 2011 continue in full force and effect until the commencement of the rehearing.
There be no order for costs in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to both parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to both parties in respect of the costs incurred in relation to the rehearing of the application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Steel & Galloway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 90 of 2011
File Number: SYC 6615 of 2007
| Ms Steel |
Appellant
And
| Mr Galloway |
Respondent
REASONS FOR JUDGMENT
This is the mother’s appeal against orders made by the Honourable Justice Fowler on 8 July 2011 concerning the child J, the four-year-old son of the mother and the father.
The child was living with the mother at the time the orders were made, but the trial Judge determined it was in his best interests to live with the father. The orders allow the mother only short periods of supervised time with the child, with provision to move to longer, unsupervised, periods after a year.
The orders made by the trial Judge are similar to those sought at trial by the Independent Children’s Lawyer, who did not seek to be heard in the appeal.
Background
The mother is 38 years of age and the father is 40 years of age.
The parties commenced a relationship in 2004, which ended in September 2006. They never lived together on a full-time basis.
J, the only child of the relationship, was born in February 2007.
The mother and father lived in Sydney until September 2007, when the mother relocated to the Town 1, south of Sydney. She lives near to the home of the father’s estranged brother and his wife.
In July 2008, “final” orders were made providing for the mother and father to have equal shared parental responsibility, and for the child to live with the mother and to have increasing periods of time with the father.
In October 2009, the mother began socialising with Mr C, whom she had met at her church. Mr C has a conviction for fraud, having embezzled money from a school where he worked. The mother denied any romantic interest in Mr C. The mother said she and Mr C did “kid things together”, and she agreed that Mr C had “a very close relationship” with J (Transcript, 2 February 2011, page 117; 4 February 2011, page 254).
The mother asserted that J’s behaviour deteriorated towards the end of 2009, and that he began exhibiting sexualised behaviour in around February 2010. On 1 March 2010, the child punched Mr C and urinated on his bedroom floor and on a toy given to him by Mr C.
On 29 March 2010, the mother contacted the statutory child protection agency because of her concerns about the child’s behaviour. The mother says she was advised the child was at risk of harm and that his behaviour was typical of an abused child. She was informed the matter would be reported. On the same day, the mother was told that the child’s pre-school intended to have him assessed by a psychologist because of his behaviour towards other children.
Mr C gave evidence that he had twice cared for J in the mother’s absence. He said the first time was “in March 2010”, and the second time was a day or two later. On the second occasion, which was on either 31 March or 1 April 2010, Mr C said he had removed his shirt while watching a movie with the child. He claimed that J had then taken off his own shirt, climbed into Mr C’s lap and proceeded to behave in an overtly sexual way. Mr C claimed that the child told him that “Daddy takes his pants off and I take my pants off for Daddy”.
Mr C said he “felt compelled to tell [the mother] what had happened because of my background”, by which he said he meant his fraud conviction, and his background as a “youth worker over [a] number of years” (Transcript, 4 February 2011, page 237).
The mother reported the incident described by Mr C to the child protection agency and then immediately suspended the child’s time with the father. The father thereupon commenced the proceedings that ultimately gave rise to this appeal. On 11 June 2010 an order was made permitting the father to have supervised time with the child.
An order was also made on 11 June 2010 preventing Mr C from coming into contact with the child. Prior to that order having been made Mr C claimed that the child had put his hands up his (Mr C’s) shorts and touched his genitals. Mr C also said that he observed the child, on 13 May 2010, throwing a knife towards the mother and then towards him.
Following an investigation by the child protection agency and the police, no further action was taken. The child protection agency concluded:
Due to insignificant [sic] evidence, it cannot be substantiated that [J] has been a victim of child sexual assault. However, given his partial disclosures, which are consistent with his overt sexualised behaviour proposes [sic] that it is highly probable that sexual harm has occurred. It is on this basis that the investigation is deemed to be inconclusive. (Exhibit 11, page 56)
On 18 August 2010, after the mother had again suspended the father’s time with the child, the father filed an amended application seeking an order for the child to live with him.
On 11 June 2010, orders were made for Dr W (“the Single Expert”) to be appointed as the Single Expert and to provide a report to the Court. The report was provided on 1 November 2010.
The matter proceeded to trial over seven days in February, March and April 2011.
The trial Judge’s reasons for judgment, extending over 56 pages, were published on 8 July 2011. On the same day his Honour made the orders giving rise to this appeal.
The trial Judge’s reasons
The trial Judge commenced his reasons by noting he had to consider allegations of physical and sexual abuse against the father, and he had to determine whether there was an unacceptable risk of harm to the child in the father’s care. His Honour recorded it was also necessary to determine whether the mother posed an unacceptable risk to the child in light of the Single Expert’s assessment that the mother and child had “an insecure and anxious attachment”. The trial Judge commented that the latter issue assumed “greater significance for this child who has shown signs of oppositional behaviour in the mother’s care to a greater extent than in the father’s care, and where the single expert’s opinion is that the father’s parenting style best deals with such a behavioural disorder”.
Having noted that the present arrangement involved the child spending time with the father each Saturday, from 9.00 am until 6.00 pm, under the supervision of the paternal grandmother, the trial Judge set out other background facts. Amongst these was the fact that the child had demonstrated “signs of very aggressive behaviour towards other children” and that the pre-school had to obtain advice from a psychologist as to how to deal with his behaviour. His Honour referred to other evidence about the child’s aggressive and sexualised behaviour and other signs of disturbance. His Honour also outlined earlier orders, and the occasions when the mother had not complied with orders allowing the father to spend time with the child.
The trial Judge set out in detail various assertions made in the affidavits of the parties and their witnesses. Amongst these was an affidavit of the father’s brother, from whom the father is estranged. The brother’s affidavit dealt with issues concerning his parents, including his understanding that his father had sexually abused his mother prior to their marriage. His mother was said to have been 12 or 13 at the time, while his father was “in his 40’s”. The brother also gave evidence concerning a vague recollection he had of being present when the father in these proceedings was sexually assaulted by an older boy. He also gave evidence of other recovered memories, and referred to his wife’s recovered memories of being sexually abused.
The trial Judge recorded that the father denied he had “ever behaved in a sexual manner” in the presence of, or towards, the child. His Honour noted that he accepted that evidence. We were advised by counsel for the mother that this finding was not challenged.
His Honour then spent 11 pages of his reasons referring to the evidence of the Single Expert. He recorded the Single Expert’s view that the child’s behaviour was typical of a “pattern associated with Oppositional Defiant Disorder”, the management for which was “parental counselling”. Importantly, his Honour recorded the Single Expert’s view that a “structured, fair, firm and consistent environment…produces more compliant responses and behaviours” in children with such a disorder. He also recorded the Single Expert’s conclusion that “the child demonstrated a secure attachment with the father and an insecure and anxious attachment to the mother”.
The trial Judge noted the Single Expert’s opinion that the mother was “not willing to adequately facilitate a relationship between the child and the father”, whereas the Single Expert found it “hard to fault the father’s attitude” which was a “predictor of the likelihood of the father being more likely and willing to facilitate the child’s relationship with the mother rather than vice versa”.
In concluding his discussion of the Single Expert’s evidence, his Honour said:
278.If the Court, he says were to determine that there was an unacceptable risk of abuse of the child at the hands of the father then he says that orders along the lines of those presently in place involving supervision might be considered appropriate.
279.Were the Court to find that there is no unacceptable risk and that the mother is an anxious and overprotective parent, and if it was further to find that the allegations had arisen because of some combination of the mother’s obsessive anxiety compounded by input from…the father’s brother and his wife and, if coupled with that finding there was satisfactory evidence that the mother could accept an alternative explanation for [the child’s] behaviour and could be less influenced by [the father’s brother] and his wife and was prepared to undertake appropriate parenting counselling, then it would be a better outcome for [the child] to remain living with his mother and spend time with his father.
…
281.If the Court makes the findings that there are no unacceptable risks of harm and as to the nature of the mother’s parenting, but finds that the mother is unable or unwilling or it is unlikely that there will be a change in the mother’s attitude and belief concerning the father nor to the misguided advice she might receive from other parties, then in [the Single Expert’s] view it would be likely that there will be further disruptions to the time [the child] spends with his father if he continues to live with his mother in her home.
282.Under those circumstances [the Single Expert] says his behavioural problems will likely persist and may become worse. For that reason he says in his view the orders that the father seeks would probably be preferable and would also have the advantage of placing [the child] with the parent who seems to have the better parenting skills and hopefully would be more supportive of [the child’s] relationship with his mother than vice versa.
His Honour next considered the credit of both parties. He found the father to be “a witness of truth”, whereas he made negative findings concerning the mother’s credibility.
In dealing with the credit of the father’s brother, his Honour found that although his evidence had been “given in a fairly straightforward fashion”, it demonstrated “an obsessive preoccupation with the issue of sexual abuse”. His Honour found the brother’s evidence was not to be preferred to that of the father (or the paternal grandmother who had given evidence on this issue). His Honour expressed a similar view of the evidence of the brother’s wife.
Having set out the relevant law (about which no complaint is made in this appeal), his Honour turned to consider the factors requiring consideration under s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
In dealing with the first of the primary considerations in s 60CC(2) (the benefit to a child of having meaningful relationships with both parents), the trial Judge found that it was “axiomatic that a child benefits from a positive, supportive and helpful relationship with each parent where each parent has the opportunity of contributing to the development of the child to that child’s full potential”. His Honour went on to observe there was:
…clear evidence of present and past difficulty in the sustaining of that relationship, but hopefully, with the gaining of some insight, time and outside help, particularly for the mother, this child will have the benefit of having a meaningful relationship with each parent.
In dealing with the second of the primary considerations (the need to protect the child from physical or psychological harm), his Honour said the first issue to determine was whether there was evidence which would sustain a finding that the father had sexually abused the child. His Honour recorded that “the evidence has to be such as meets the Briginshaw Test”.
The trial Judge went on to find that the evidence did not sustain such a finding, commenting that the “disclosures by the child are equivocal and some are inherently unbelievable”. His Honour further recorded that “the behaviour of the child is not in the view of the single expert, and the Court so finds, necessarily indicative of sexual abuse nor indeed of physical abuse”.
His Honour next dealt with the evidence of the father’s brother, which had been relied upon to support an assertion that the father had been abused and therefore was more likely to engage in abuse. His Honour found the evidence of the brother was “vague and lacking in detail to say the least and even if true could only give rise to the possibility of some concern if the father remembered being abused and falsely denied that he had been abused”.
His Honour then considered the context of the assertions made by the father’s brother concerning the childhood abuse of the father, which was said to have occurred at Sydney Suburb 4. His Honour made these findings:
308.It was suggested that the evidence of [Ms SZ] supported [the brother’s] version but the Court accepts the evidence could readily be understood in terms of the explanation given for it as being a recall by [Ms SZ] of a conversation had by the father with her in the absence of his brother when both of them went to [Sydney Suburb 4] in an endeavour to investigate the brother’s recall. In the circumstances the Court does not accept it as being of any weight in support of an allegation that the father was abused and knew it and denied it.
309.In any event the Court finds the father to be credible and a witness of truth in the giving of his evidence and accepts his denials that he has no such recollection of events along the lines proposed by the father’s brother.
The trial Judge then made the following important findings, a number of which are the subject of either direct or collateral challenges in this appeal:
312.The allegations have to be put into a context of the dispute between these parties which is long standing and involves a significant measure of distrust of the father by both the mother, his brother and his brother’s wife who have been supportive of the allegations being made and who appear to have an almost singular preoccupation with the problems of sexual abuse.
…
315.The interview of the child by the Department of Community Services as it then was, was clearly a flawed interview.
…
318.The mother presented to [the Single Expert] as being anxious. She indicates a high level of suspicion that the child could be manipulated by his father.
…
323.The attempt to draw some connection to the father’s adult sexual practices and the alleged abuse is not a connection which is supported by the Independent Expert.
324.The consensual sexual practices of the father in adult relationships carry in the mind of the expert small weight and in the mind of the Court on the evidence almost none.
325.The Court finds that the evidence does not enable it to find that the father was sexually abused, that he knew of it and that he has falsely denied it.
326.The Court finds that there is no evidence which would sustain the assertions of sexual or physical abuse and also finds that the evidence does not convince it that there is an unacceptable risk of harm in the care of the father.
His Honour then turned to consider whether there was an unacceptable risk of harm to the child in the care of the mother. Amongst important findings his Honour made were these:
330.The mother has no doubt that the child’s misbehaving conduct is the product of abuse by the father yet she refers to such conduct arising at about the same time as a friend [Mr C] came into her life. Notwithstanding this, it is the father alone who is the target of her convinced view that something untoward has happened.
331.The child’s statement said by the mother to be made, “Mummy I do it I do it I do it I tickled him I tickled the man”, was made after the child had been in the presence of [Mr C] and had put his hand up a shorts leg and touched [Mr C’s] genitals. Yet the mother refers to the child’s statement as evidence of sexual abuse by the father.
…
336.Importantly, [the Single Expert] notes the mother’s lack of ability to be consistent in relation to dealing with her child’s behaviour and to prevent a continuation of his disorder. This stands in stark contrast with the ability of the father to control the son’s behaviour.
337.The child seeks to manipulate the mother but not the father. He is constantly testing limits with the mother.
338.The mother cannot accept it seems that it is her parenting style which is inappropriate for this child and the cause of his behaviour. She seems to continue to adhere to the view that his behaviour is solely the result of abuse by the father.
339.The mother’s faith in her view, found by the Court to be unsustainable that the child was in any danger from the father, is supported in her by her continuing relationship with and encouragement from the father’s brother and his brother’s wife who seem to have an idée fix in relation to the issue of child abuse.
340.The mother can only bring herself to say that the child’s ordered behaviour in the father’s care is occasioned by fear of the father, a view which is neither shared nor demonstrated by the supervised contact observations nor the observations of [the Single Expert] whose description of the relationship betokens no such fear.
341.[The Single Expert] says of the child’s behaviour that if the behaviour was not contained for the majority of the time that would have major implications for [the child’s] social relationships and capacity to benefit from the school environment as he grows up.
342.It could, he says, extend to other problems with learning because his bad behaviour will dominate and he could become disruptive in class, he might be isolated in those circumstances or placed in a special class and that would take him out of the mainstream. Looking further down the track he says there could be consequences with delinquency and relationships in teenage and adult life.
343.[The Single Expert] is not sanguine of the mother accepting that it is her parenting style which is causative of the problem. He also notes that “the mother remains living in [Town 1, south of Sydney] environment and that that environment has an unhealthy preoccupation and lack of discrimination about risk”. The mother, he says, has a lack of confidence in parenting, a lack which is not shared by the father who possesses it appropriately.
344.The household of [the father’s brother] seems to be an environment of adult people with a common obsession in the adults in relation to child abuse. In that environment [the father’s brother’s] children are excluded from a proper relationship with their grandparents on flimsy grounds.
…
348.It seems probable that if the child is permitted to continue to live with the mother and spend most of his time with her, given her unyielding attitude to the father, that the child will continue to be barraged perhaps non-verbally with an attitude of fear emanating from the mother of the care of the father for him. Such an indoctrination of fear, perhaps unknowingly provided, has the propensity to destroy the child’s relationship with his father.
349.The Court concludes on the evidence that it is more probable than not that the mother cannot shift her attitude to the father.
350.In the circumstances referred to above the Court finds that there is a significant risk of harm to this child (increased by reason of him suffering from Oppositional Defiant Disorder) in the continuing care of the mother.
351.If there could be a change in the mother’s insight and ability to parent and ability to promote on a normal basis a relationship between the child and the father things might be different but the Court is left with concern that at least for the time being that is not possible.
352.The likelihood of long-term damage to this child in a continuation of the current arrangements for his care is such that a change in those arrangements is clearly required to serve his best interests and those benefits override the perceived short-term problems associated with such a change.
His Honour next dealt with the “additional considerations” in s 60CC(3) of the Act. It is unnecessary to consider his findings in detail, but it is worthy of comment that in discussing the child’s relationship with each parent his Honour recorded it was clear from the evidence of the Single Expert that the child’s primary attachment was to the mother. However, his Honour again recorded the Single Expert’s view that the child had “a rather anxious insecure attachment to his mother whereas his attachment to his father had the features of a secure attachment”.
His Honour went on to find:
355.The evidence of [Ms Y] however, as to the child’s ability currently to detach from the mother at pre-school and his happiness in return to her, suggests a warm relationship with the mother. [We interpolate that [Ms Y] was the director of the child’s pre-school].
356.The evidence of the contact supervisors indicates a clearly warm and loving relationship with the father as does the observations of [the Single Expert].
357.The Court agrees with the submission of the Independent Children’s Lawyer that the child would have the benefit of a loving relationship with each of his parents, but that he is more likely to be better off considering all matters in his father’s care because of his superior ability to deal with the child’s problems.
In dealing with the likely effect of changes in the child’s circumstances, his Honour noted the evidence of the Single Expert that, apart from the beneficial effects arising out of a change in residence, there would also be an adverse effect for the child. This was described by the Single Expert as “one of pining and sadness”, albeit he considered it would be of “relatively short term duration”. The Single Expert considered that the child would “require support, understanding and insight from the father”, which the Single Expert believed, and his Honour agreed, the father could provide.
In concluding this part of the discussion, the trial Judge found:
384.This case is one where the Court is obliged to make orders which protect this child from a danger far more real than that imagined by the mother. That danger lies in ineffective parenting of a child with his Oppositional Defiant Disorder. A failure to provide effectiveness in that parenting could lead to the significant deficits for this child in his life adumbrated by [the Single Expert] in his commentary.
The trial Judge then explained why it would be in the child’s best interests for there to be an order for equal shared parental responsibility.
In discussing other parenting orders proposed, his Honour said it appeared that, “for a period at least, in order to allow the child to settle, he should live with the father and not spend time with the mother”, but “thereafter, there should be a period during which the time spent by the child with the mother increases on a gradual gradient consistent with an improving situation for the child”.
His Honour concluded by saying he hoped that:
…with the passage of time and the overcoming of the child’s disorder and the continuation of the help for the mother to improve her parenting skills and to gain some insight into the child’s needs, things might be restored to a situation where the child can happily spend more time with the mother.
The trial Judge’s orders
The orders made by the trial Judge relevantly provided for:
· equal shared parental responsibility, with a mechanism to deal with disagreements (Order 1);
· the child to live with the father (Order 2);
· the mother to spend time with the child twice each week (five hours each Sunday and from after pre-school/school until 5.30 pm one day each week), commencing one month after the orders and continuing for a period of 12 months (Order 3); and
· the mother’s time to be supervised by S Family Services, with a report to be prepared “following each period of time spent by the child with the mother”, with the mother to meet the costs of the supervision and the reports (Order 4).
The orders provided for the parents to have counselling on specified topics. After the expiration of eight months the Single Expert was to provide an updated report, following which the parties would review the parenting arrangements. Unless otherwise agreed or ordered, after 28 days had elapsed from the publication of the report, the mother was to commence spending unsupervised time with the child. This included three nights each alternate weekend and each Wednesday afternoon, as well as other periods, including half of school holidays when the child commenced school.
The appeal and the variation of the orders
The mother’s appeal was filed on 4 August 2011.
On 25 August 2011, the mother filed an application for a stay, which was refused on 2 September 2011; however, on 14 September 2011 the trial Judge made orders varying the supervision arrangements.
The orders made on 14 September 2011 provided that, “pending Appeal”, the child was to spend time with the mother for four hours each Saturday and three hours each Thursday at the W Contact Service. The order did not specify who was to pay the costs, if any, associated with this arrangement, nor did the order provide for the preparation of reports following the visits.
Although counsel for the mother informed us that the reason for the change in arrangements was because the mother was unable to afford the cost of supervision by S Family Services, we were not provided with the formal reasons given by Fowler J for ordering the variation.
Appellate principles
Absent complaints about procedural fairness or adequacy of reasons, the mother must establish that the trial Judge acted upon a wrong principle, allowed extraneous or irrelevant matters to affect his decision, mistook the facts, failed to take into account a material consideration or reached a result that is unreasonable, unjust or plainly wrong: House v The King (1936) 55 CLR 499.
As Stephen J stated in Gronow v Gronow (1979) 144 CLR 513 at 519 - 520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In the present appeal, counsel for the mother sought to advance matters not raised at trial. The circumstances in which such propositions can be entertained on appeal were discussed in Coulton v Holcombe (1986) 162 CLR 1, where Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7 - 8:
…To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish…In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd (1950) 81 C.L.R. 418, at p. 438; Bloemen v The Commonwealth (1975) 49 A.L.J.R. 219. In O'Brien v Komesaroff (1982) 150 C.L.R. 310, at p.319, Mason J., in a judgment in which the other members of the Court concurred, said:
“In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v Kavanagh [1892] A.C. 473, at p. 480; Suttor v Gundowda Pty. Ltd. (1950) 81 C.L.R. 418, at p. 438; Green v. Sommerville (1979) 141 C.L.R. 594, at pp. 607-608). However, this is not such a case. The facts are not admitted nor are they beyond controversy.
The consequence is that the appellants’ case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.”
In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this Court (University of Wollongong v. Metwally [No 2] (1985) 59 A.L.J.R. 481, at p. 483) the Court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:
“the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court”.
These principles have been routinely applied by this Court. For example, in Finlayson vFinlayson & Gillam (2002) FLC 93-121 the Court said at 89,267 (original emphasis):
There is ample authority for the proposition that a party cannot raise on appeal a point not raised at trial if it could possibly have been met by calling evidence below: see Water Board v Moustakas (1988) 180 CLR 491 at 497; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally [No. 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; and O’Brien v Komesaroff (1982) 150 CLR 310 at 319. The same principle, founded as it is on the necessity to ensure procedural fairness to the parties, must preclude a trial Judge from deciding a case on a basis not raised by the pleading or submissions of the parties before him or her without at least giving the parties an opportunity to address the issue by making further submissions and, if then sought, to adduce further evidence relevant to the issue. As the trial Judge did not give the parties (and, in particular, the husband) such an opportunity in this case, the essential question is whether, had she done so the husband might possibly have been able to adduce some evidence which answered the point.
We accept that principles designed to provide procedural fairness should be applied with care in matters involving the welfare of a child, even where the child is independently represented. However, we are not persuaded we must entertain each of the new propositions advanced by counsel for the mother merely because we are dealing with proceedings under Part VII of the Act, which counsel for the mother submitted imposed on us an obligation to “protect the best interests of the child”.
In rejecting the argument of counsel for the mother, we consider the following observations of McHugh J in Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] 68 ALJR 304 at 310 have as much application to proceedings involving the welfare of children as they do in other civil litigation.
…the principles which govern the raising of new points [on appeal] ‘have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice’. We live in an era where the cost of litigation is beyond the means of ordinary citizens and where awards of party and party - and even indemnity - costs cannot fully compensate a party for the cost and worry of litigation. Because that is so, it is as important as ever that the established principles concerning the raising of new points be strictly applied…
The hearing of the appeal
The mother was represented on the hearing of the appeal by Mr de Robillard of counsel and the father was represented by Mr Wheelhouse of senior counsel.
The mother provided a Summary of Argument prior to the hearing of the appeal. It is unclear whether this document was prepared by counsel or the mother herself. In any event, it failed to comply with the basic requirements of the Family Law Rules 2004 (Cth) (“the Rules”), as it made no attempt to link the “submissions” to the grounds of appeal. It also sought to agitate issues not raised by any ground of appeal. The document amounted to nothing more than a written version of the free-ranging, unhelpful, narrative upon which counsel for the mother embarked after he arrived, late, for the hearing of the appeal.
In making his “submissions”, counsel for the mother was unable to take us to those parts of the record which he claimed would support his “armchair” criticisms of the trial Judge’s reasons. Counsel’s primary duty is to the Court. That duty embraces a number of matters, but is not confined to honesty. The duty of counsel to a client will sometimes necessitate criticising – sometimes criticising trenchantly – a trial judge. But, it is not for a party, much less counsel, to embark upon criticisms of a judge that have not been framed advisedly after a careful and thoughtful consideration of the evidentiary bases for those criticisms. That is all the more so when the subject matter is as grave as that which attends the current matter.
Given the gravity of the issues, we gave permission to counsel to provide, after the hearing concluded, the transcript references he had been unable to provide when requested. We directed these to be supplied on the afternoon of the hearing, and we later granted a request to extend the time to the following day. The transcript references were not provided.
In the course of argument, counsel for the mother also referred us to a “decision of Chief Justice Spiegelman” which he submitted would establish that, in proceedings relating to the best interests of children, it was open to an appellant to advance arguments not advanced at trial. When we asked counsel to provide the citation of that decision, given that the proposition appeared in conflict with the High Court authorities to which we have referred, counsel was unable to do so, but assured us the citation would be provided later.
Ultimately, what was provided was a decision of the NSW Court of Criminal Appeal in R v TA [2003] NSWCCA 191. That decision related to the obligations of a trial Judge to provide a level of protection to the alleged victim of a sexual assault in a criminal trial. Its relevance to the subject matter of this appeal, or to the principles enunciated in the decisions of the High Court, is not apparent.
The grounds of appeal
The mother’s further amended Notice of Appeal filed on 17 November 2011 contains eight grounds of appeal, one containing many sub-grounds.
Only one complaint has any merit.
Ground 1(a) – relying uncritically on the report of the Single Expert
By this ground it is asserted that the trial Judge “should not have relied uncritically on the [Single Expert’s report and on his] unqualified opinions”. It was submitted that a “substantial part” of the trial Judge’s reasons consisted of “cut and paste” statements from the report. A schedule of such statements was attached to the mother’s Summary of Argument.
We accept that the trial Judge’s reasons contain many paragraphs that quote from or rely upon the report of the Single Expert. However, it should be recorded that the report was lengthy (47 closely typed pages) and it is clear his Honour distilled only what he saw as the most important parts. That fact alone indicates that the report was not accepted “uncritically”, since the process of sifting the most pertinent material from the less pertinent is, in itself, a method of scrutiny.
None of the submissions advanced on behalf of the mother satisfied us that his Honour relied “uncritically” on the Single Expert’s report. It is true his Honour accepted the evidence and opinion of the Single Expert, but that is not unusual in a case where an expert has not been successfully challenged in cross-examination.
Much was made by counsel for mother about the fact the trial Judge incorrectly recorded the date of the mother’s move to Town 1, south of Sydney as having occurred in May 2008, when in fact she had moved in September 2007. Nothing turned on this discrepancy, save for the fact that the same error appeared in the report of the Single Expert. It was therefore suggested that this was evidence of the trial Judge relying uncritically on the expert’s report.
What counsel for the mother failed to draw to our attention was that the incorrect date also appeared in the chronology provided by the Independent Children’s Lawyer. It is readily apparent from the trial Judge’s reasons that, in constructing a chronology of events, his Honour used the chronology of the Independent Children’s Lawyer as an aide memoire, which is entirely legitimate in dealing with issues that were not controversial.
It was further submitted that various “positive statements” made by the Single Expert about the mother were not reproduced in the judgment. Attached to the mother’s Summary of Argument was a two and a half page schedule of such statements. It is, of course, difficult to reconcile this with the mother’s assertion that the expert was “partisan” and lacked “independence”. In any event, a trial Judge is not obliged to refer to each and every part of the evidence of a witness. In this context we record again that the Single Expert’s report ran to 47 pages, and we note his oral evidence occupied 83 pages of transcript. We are not persuaded the trial Judge overlooked any evidence of any substance.
Specific complaints about failure to comply with the Rules
By Ground 1(a)(i) complaint is made about the fact that the Single Expert’s report was not verified by affidavit, as is required by Rule 15.62(1)(c). No complaint was made about this at the trial, and the Single Expert swore (transcript, 31 March 2011, page 42) to the accuracy of the report in his oral evidence. The complaint therefore borders on vexatious.
Ground 1(a)(ii), which asserts failure by the trial Judge to comply with another Rule, was shown to be erroneous and was therefore abandoned.
By Ground 1(a)(iii) it is asserted that the Single Expert’s report did not comply with Rules 15.63(a), (b) and (c). No complaint was made at trial about this alleged non-compliance. In any event, we observe that Rule 15.64 deals with the consequences of non-compliance with rules, none of which prevented his Honour from relying on the report.
Ground 1(b) – weight to be given to the report of the Single Expert
By this part of the ground, it is asserted that the Single Expert’s report should have been given little or no weight for a variety of reasons. We will examine each briefly.
Failure to state qualifications
Attention was first drawn to the failure of the expert to state his expertise, other than identifying himself as a “consultant psychiatrist” in his report, and as a “child and family psychiatrist” in his oral evidence.
We accept that Rule 15.63(c)(i) provides that the qualifications of a Single Expert should be stated in their report; however, we again observe that nothing in Rule 15.64 prevented his Honour from relying on the report because of the failure of the expert to comply with this requirement.
The Single Expert’s qualifications were not challenged at trial and he was appointed at the request of both parties. His Honour was entitled to infer that the expert had the required qualifications.
Expertise of the Single Expert to comment on adult sexual issues
It is asserted there was no evidence that the Single Expert was a “sexologist” (whatever that might be), nor was there any evidence that he had “any expertise regarding adult sexual issues”.
We again record that no challenge was made at trial concerning the Single Expert’s expertise to give evidence about the “adult sexual issues”, which the expert found were within “the normal range of consensual adult sexual behaviours”.
In any event, the trial Judge independently determined that “the consensual sexual practices of the father in adult relationships” carried almost no weight in his mind. No ground of appeal complained about this finding.
The Single Expert’s assessment of the child
It is claimed there was no evidence that the Single Expert was “better qualified” to diagnose the child’s medical/psychiatric condition than were other practitioners who had arrived at different views about his condition.
None of the practitioners referred to by name in this complaint was called to give evidence. The Single Expert considered the views expressed by other professionals who had seen the child and arrived at his own assessment, which he was entitled to do.
Failure of the Single Expert to speak to medical practitioners
Complaint is made concerning the failure of the Single Expert to consult with any of the medical professionals who had seen the child, leading to the assertion that the Single Expert had not provided “any justification (other than his self-assessed expertise) to reject the opinion of his fellow-practitioners”.
The terms of reference given to the Single Expert do not suggest that he was required to meet with any of the 23 practitioners who had seen the child. In fact, it may have been inappropriate for him to have done so in circumstances where ultimately none of those practitioners (save for one, who was the mother’s General Practitioner) was called to give evidence.
In any event, the Single Expert commented on, and gave consideration to, the reports of a number of the other medical practitioners in his report.
Expertise relating to processes of the child protection agency
Complaint is also made that the Single Expert failed to provide evidence of his expertise when rejecting the findings of the child protection agency and the police. It was further submitted there was no evidence, other than that of the Single Expert, that the enquiries into the mother’s allegations “were not undertaken in accordance with pre-established and accepted policies and practices”.
Once again we observe there was no challenge to the expertise of the Single Expert to give his opinion about the investigation by the authorities. Furthermore, the Single Expert explained clearly, and in detail, why he had concerns about the investigation. Amongst the many concerns expressed was the use of leading questions with such a young child.
Time spent by the Single Expert with the child
This part of the complaint draws attention to the absence of evidence concerning the time the child had spent with the Single Expert.
We were taken to no part of the record to demonstrate it had been put to the Single Expert that he had spent insufficient time with the child before arriving at his opinion. Nor was any submission made which would suggest the expert would have arrived at a different view had he spent more time with the child.
Methodology in conducting interviews
It is asserted that the Single Expert conducted his interview with the father in a manner different to the way he conducted his interview with the mother. We were not persuaded the interviews were conducted in a materially different way. Even if they were, the time to take issue with the methodology was at trial. The issue cannot now be raised for the first time on appeal.
Expertise to comment on facial expressions
The final complaint in this ground is that there was no evidence of the Single Expert’s expertise to interpret the mother’s behaviour in rolling her eyes during the interview.
The Single Expert did record that the mother rolled her eyes during the interview process. It should be noted, however, this was but a very small part of his comprehensive description of what occurred during his interviews with both parties. In our view it was entirely appropriate for the Single Expert to record what he observed, and we note he did not express any conclusion from what he observed. There is no substance in this grievance.
Ground 2 – independence of the Single Expert
This ground asserts that the trial Judge “failed to properly assess whether [the Single Expert] was in fact ‘independent’ [and] if his Honour did so he failed to provide adequate Reasons”.
The Single Expert ended his report by stating, as required by the Rules, that the opinions expressed in his report were “independent and impartial”. He was not challenged on that assertion.
In the mother’s Summary of Argument it was submitted that the Single Expert “provided partisan evidence in favour of [the father]”. To support this proposition, reference was made to portion of the transcript where the Single Expert acknowledged that he had made comments to senior counsel for the father outside the courtroom suggesting that the father was “a little slick” and that “he was a person that you would have…[to] be on guard to trust completely”.
As we understand the proposition, it is submitted that these remarks were in some way in conflict with the Single Expert’s evidence. We are not persuaded this proposition was established, but even if it was, it does not lead to a finding that he was anything other than independent.
We find this attack on the court appointed expert to be entirely scurrilous.
Grounds 3 and 4 – standard of proof
Ground 4 is incomprehensible. When we asked counsel for the mother to explain Ground 4, he did so by essentially repeating what had been said in Ground 3. We propose therefore to discuss only Ground 3.
By Ground 3 it is asserted that the trial Judge had failed to apply the provisions of s 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”) and the “‘Briginshaw’ principles” when making various findings.
The findings referred to were characterised by the mother’s counsel as constituting acceptance by the trial Judge that the mother was “unfit” to care for the child. Nowhere in his reasons did his Honour say or indeed imply that the mother was “unfit”. To roll up his measured findings in this way does no credit to the argument. In any event, it was submitted that the findings had grave consequences, and should only have been made by reference to the “Briginshaw Test”, to which his Honour had made reference when rejecting the assertion that the father had sexually interfered with the child.
It is unnecessary for us to discuss the differences (if any) between s 140 of the Evidence Act and the “Briginshaw principles”. It is sufficient to record that although s 140(2) is sometimes seen as a restatement of the Briginshaw test, it has also been suggested that reference to that test might lead a judge into error. (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 480 [31] and Qantas Airways Ltd v Gama (2008) 167 FCR 537 at 571 [110] and 576 – 577 [139]).
Nothing advanced by counsel for the mother persuaded us that the trial Judge failed to apply the correct standard of proof when making the findings which are the subject of this ground.
Ground 5 – mother’s anxiety
By this ground it is asserted his Honour had “no basis other than [the Single Expert’s] unqualified opinion that the mother suffered from anxiety”. The ground goes further in asserting that “the evidence from the treating practitioners and the pre-school staff is to the contrary”.
We have already found that there is no substance in the assertion that the Single Expert was unqualified to give evidence. As a consultant psychiatrist it was clearly open to the expert to find that the mother was “anxious”.
When we asked counsel for the mother to take us to the record to demonstrate how the Single Expert’s opinion conflicted with that of “treating practitioners” we were taken only to paragraph 8 of the affidavit of a General Practitioner, who said that the mother “exhibited no anxieties regarding her parenting role, her relationship with her son or her ability to maintain adequate income to support herself and her son”. Counsel for the mother omitted to draw our attention to paragraph 4 of the same affidavit, where the GP said he had observed that the mother was “stressed”. The GP then went on to give his explanation for why the mother was suffering from “anxiety and stress” (our emphasis).
Counsel for the mother was unable to take us to any other evidence contrary to the evidence of the Single Expert that the mother was “anxious”. The best he could do was to draw attention to affidavits of witnesses who had not said the mother was anxious.
There is no substance in this ground.
Ground 6 – failure to take into account relevant matters and taking into account irrelevant matters
Although Ground 6 was not formally abandoned, there is no basis upon which we could consider it, given that no particulars were provided of any of the matters his Honour was said to have failed to take into account, or irrelevant matters that he did take into account.
Ground 7 – costs of supervised contact
By this ground it is asserted that the trial Judge erred by finding the “the mother would have no difficulty in meeting the expenses associated with supervised contact”. The ground goes on to assert that the evidence was to the contrary”, and that “the finding is unreasonable to the Wednesbury standard”.
The finding sought to be impugned was that contained in paragraph 370 of the reasons where the trial Judge found, when dealing with s 60CC(3)(e):
The father and the mother in this matter do not have attendant upon the child spending time with them any significant expense or practical difficulty which will affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Consistent with the entirely unsatisfactory manner in which the appeal was presented, the finding is misrepresented in the ground. It will be observed that at no point did the trial Judge find that the mother “would have no difficulty” in meeting the costs associated with supervision of contact.
It was properly conceded by senior counsel for the father that his Honour made no specific findings in relation to the mother’s capacity to pay the costs associated with supervised contact. It was also conceded there was no evidence of the costs of such supervised contact, and the reports which were to be prepared after every visit. We do note, however, that the father had given evidence in an affidavit that it had been costing him $1,540 per month when he was seeing the child for just 10 hours a month under the supervision of S Family Services. The father also said in cross-examination that the cost of supervision had caused him “huge financial strain”. (Transcript, 1 February 2010, page 58). This would have provided a basis for his Honour to have concluded that the cost of supervision was likely to be very expensive.
It is important to recognise that the proposal that the mother’s time with the child should be supervised arose only during the final stages of the trial, after both parties had given their evidence. The penultimate day of the trial was 1 April 2011 and the last day was 8 April 2011. The Independent Children’s Lawyer’s Minute of Orders, which first proposed supervision, was dated 6 April 2011. The father’s Minute seeking similar orders was handed up on 8 April 2011.
We accept that no submissions were made in closing addresses at trial to suggest the mother was incapable of meeting the supervision costs. However, the evidence indicates that the mother had not worked since before the birth of the child and had spent her termination payment on legal fees. The mother is also said to be receiving benefits of only $300 per week, while paying rent of $280 per week. The evidence also established that the father owned a number of properties in Sydney, and it was conceded before us that he was a man of some financial substance.
Thus, although the issue of the mother’s ability to meet the costs of supervision was not agitated before the trial Judge, we consider his Honour erred in finding, at paragraph 370, that there would not be “any significant expense” associated with the child spending time with the mother. In our view the evidence, such as it was, does establish there was likely to be significant expense associated not only with the supervision, but also with the preparation of reports after each visit. Whilst we can surmise why the trial Judge may have considered it appropriate for the mother alone to be required to meet the costs involved, his Honour did not give any reasons for so ordering.
Senior counsel for the father recognised that there was potential difficulty in defending this ground of appeal. Accordingly, he advised us that he could obtain instructions to give an undertaking that the father would meet the costs of the supervision of the mother’s time at the W Contact Service.
The difficulty with that proposed undertaking was that the order for supervision to occur at the W Contact Service was made only “pending appeal”. In the event the appeal was dismissed, the original order for supervision by S Family Services would spring back into effect. No undertaking was foreshadowed to meet the costs of supervision by S Family Services. In any event, it may no longer be appropriate for that service to be used in circumstances where the child has presumably become accustomed to attending a different service.
Whilst the proposed undertaking could therefore not resolve this issue on appeal, it appears that it could provide a sensible basis for resolution of the matter between the parties, thereby avoiding the rehearing we intend to order directed to this discrete issue.
Ground 8 – Jones v Dunkel inference
This ground asserts that his Honour had erred in “refusing to draw any Jones v Dunkel inference” arising out of the father’s failure to call Ms SZ to give evidence pertaining to the alleged incident at Sydney Suburb 4. It was said the father was in “direct contact” with Ms SZ during the trial and had failed, in cross-examination, to explain her non-attendance.
In the mother’s Summary of Argument it was submitted that “[Ms SZ’s] recollection of her conversations with the father contemporaneously with the alleged incident was vital”. This submission is apt to mislead since it was not suggested Ms SZ was in attendance at the time of the alleged assault, but rather happened to be speaking with the father about the topic many decades after the assault was said to have taken place.
The possible importance of Ms SZ as a witness arose out of an allegation made by the father’s brother in which he claimed to have recovered a memory (whilst in therapy) that he had been present when the father was sexually assaulted by an older boy in a home at Sydney Suburb 4. The father’s brother said in cross-examination that he would have been about 6 or 7 years of age at the time of the incident, and the father was 15 months younger. When pressed for the degree of certainty he felt that he had in recalling these observations, the father’s brother said “80 per cent”. (Transcript, 31 March 2011, pages 10, 11).
In any event, the brother went on to say in his affidavit:
I told [the father] of the memory and he said:
“I have no memory of that but I’d like to go to the house and investigate
Do you know where it is?”
I said yes and described it.
We then found the house. There was noone home. We spoke to the neighbours and found the house had been owned by a family known as [family’s name]. They were family friends of both my parents.
I looked through the window and it was as I’d recalled it.
Subsequently [the father] said to me:
“I ran into an old girl friend [Ms SZ]. I told her what we’d done to find the house and why we’d gone there. She said stop. You’ve told me this before. You woke up in the middle of the night and told me about this incident in the house with one of your father’s friends”
[The father] said to me “[Ms SZ] was able to tell me the other half of the story”.
The father acknowledged he went to Sydney Suburb 4, but did so only “to support [my brother] in exploring his repressed abuse memory as this was obviously very distressing for him”. The father gave further evidence in these terms:
98. …
9. Some years ago [my brother] rang me and said to me words to the effect of:
“I am struggling with a memory and have been doing so for sometime and I’m not sure if I should tell you or not… I remember you being sexually abused by some teenage boys whilst staying in a house at [Sydney Suburb 4].”
Sometime later [my brother] and I went to [Sydney Suburb 4]. We went to a house that we both remembered being the home of a family friend. We holidayed there as a family when [my brother] and I were children. When we went to the home there was no one home. The area that [my brother] had described the incident occurring was nothing like how he had described it. For example, as best as I can recall he described it as a garage when in reality what we observed when we attended the house was a number of rooms and a bathroom. I have never been sexually abused.
10. On that day at [Sydney Suburb 4] I did run into an old girlfriend of mine from 20 years ago, [Ms SZ]. [Ms SZ] asked me:
“What are you doing down here, it’s not like you to be down at [Sydney Suburb 4]?”
[Ms SZ] and I have been in touch throughout our lives and I explained to her what we were doing there and the circumstances surrounding [my brother’s] repressed memory. It was a short conversation and not much detail was given.
In a phone conversation with [Ms SZ] some months later I bought this up again as it had become a real obsession for [my brother]. She said:
“I remember you speaking about this previously.”
I mistakenly took this as she meant I had spoken about something like this occurring from when we went out some twenty years earlier. However, much later when I spoke to her about this she said words to the effect of:
“No – you’ve misunderstood me. I meant I remember you telling me about it when we were at [Sydney Suburb 4]. Other than that time, you never said anything to me about anything like this.”
I did have a conversation with [my brother] after [Ms SZ] first told me she remembered me speaking about it. My comment to him was that [Ms SZ] did have a memory of me speaking about this. There was no detail given.
The father gave evidence that he had contacted Ms SZ during the trial to “chase up” an affidavit she had told him she had sent to his solicitor’s office. The affidavit had not been received. (Transcript, 1 February 2011, page 24).
The trial Judge accepted the father as a witness of truth. The father had offered an explanation as to why an affidavit had not been provided by Ms SZ. He had given evidence about what she had said to him in their conversations on this topic. There was no basis upon which a Jones v Dunkel inference could be drawn against the father.
It is also submitted that the trial Judge failed “to address the fact that the mother mentions the [Sydney Suburb 4] rape incident in her diary – having been told certain things by the father in the early days of the relationship”. Our own examination of the transcript reveals that the document in question was entitled “Private Thoughts for Wednesday, 17 October 2007”. (Transcript, 4 February 2011, page 288). The parties had ended their relationship more than a year before that document was prepared, and it was conceded by senior counsel for the mother that it was not a contemporaneous record. (Transcript, 4 February 2011, page 293). It is therefore unsurprising that the trial Judge failed to mention it in his reasons.
In this regard we note that the mother claimed in her affidavit that some time after March 2006, after a session with a counsellor, the father had said:
It’s all come back. I remember being bent over and gang raped by Dad’s friends. [My brother] was locked in a cupboard. He was going to be next. I have a sense that this really happened to me.
The father conceded in cross-examination that he had a conversation with the mother about this topic, but when asked why he had such a conversation he said, “Because it was something that [my brother] was absolutely fixated about, but I have no recollection of that ever happening to me”. He went on to “vehemently” deny that he had ever said to the mother that he had been raped as a child. (Transcript, 1 February 2011, page 27, 59).
The trial Judge preferred the father’s evidence to that of the mother, as he was entitled to do.
The outcome
Only one ground of appeal has been made out, and this concerns only a discrete issue. The appeal will therefore be allowed only in part.
We will direct a rehearing on the issue relating to the costs of supervision. In the course of determining that issue it may be necessary to consider arrangements for an alternative form of supervision to that provided for in the orders which are the subject of this appeal. Our orders will allow for this.
In our view, it would be desirable for Fowler J to conduct the rehearing, given his familiarity with the matter, especially those issues which we assume were agitated before his Honour on 14 September 2011, when different supervision arrangements were made pending the determination of the appeal.
Costs
Counsel for the mother sought costs in the event the appeal succeeded – and a costs certificate for the appeal and for any rehearing if we determined that it was not appropriate for the father to pay costs.
As the appeal has failed on all but one, fairly minor, issue, there is no proper basis upon which the father should be ordered to pay the mother’s costs.
The father sought costs in the event the appeal was dismissed and, although not expressly articulated, we proceed on the assumption he would continue to seek costs if the only basis upon which the appeal was allowed was Ground 7.
We are not prepared to make an order for costs against the mother in circumstances where her financial position is clearly inferior to that of the father, and in circumstances where we accept the appeal was brought bona fide. We also take into account the serious consequences of the orders his Honour made, which led to the child moving from his primary carer.
We propose to grant a costs certificate to the father for the appeal, but not the mother. The presentation of the appeal by counsel for the mother was not deserving of monetary compensation. In any event, we note that counsel for the mother appeared pro bono on the application for security for costs.
We will grant costs certificates to both parties for the rehearing. We should note, however, that our granting of certificates does not automatically mean that the Attorney General will see fit to provide funds pursuant to the certificates. It may well be that the Attorney General would only see fit to authorise a contribution from the public purse if the parties first make a bona fide effort to resolve the issue before proceeding to a rehearing.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Murphy JJ) delivered on 22 February 2012.
Associate:
Date: 22 February 2012
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