Stone and Stone & Anor
[2016] FamCAFC 141
•4 August 2016
FAMILY COURT OF AUSTRALIA
| STONE & STONE AND ANOR | [2016] FamCAFC 141 |
| FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders that the children neither see nor have direct communication with the maternal grandmother – Where the maternal grandmother asserted the orders made were not in the best interests of the children – Where the trial judge’s findings were open on the evidence – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – Where the maternal grandmother appealed a property order as between the father and the mother – Where the maternal grandmother was not a party to the property proceedings and the order appealed does not bind her – Where the maternal grandmother lacks standing to appeal this order – Appeal dismissed. FAMILY LAW – CROSS APPEAL – CHILDREN – Where the trial judge made orders that the children neither see nor have direct communication with the mother – Where the experts’ recommendations that the children spend time with the mother must be viewed in the context of the totality of the evidence – Where the mother alleged the trial judge failed to consider allegations of family violence and abuse – Where the trial judge made adverse credit findings against the mother – Cross appeal dismissed. FAMILY LAW – CROSS APPEAL – PRACTICE AND PROCEDURE – Where the trial judge refused an adjournment of the trial based on the evidence before him – Cross appeal dismissed. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Ms S Stone |
| RESPONDENT: | Mr Stone |
CROSS APPELLANT: | Ms Stone |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Geysen |
| FILE NUMBER: | BRC | 1645 | of | 2011 |
| APPEAL NUMBER: | NA | 10 | of | 2015 |
| DATE DELIVERED: | 4 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray & Ainslie Wallace JJ |
| HEARING DATE: | 8 June 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 January 2015 |
| LOWER COURT MNC: | [2015] FamCA 14 |
REPRESENTATION
| APPELLANT: | In person | ||
| In person | ||
| COUNSEL FOR THE CROSS APPELLANT: | Mr Edwards (direct brief) | ||
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody | ||
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family Law |
Orders
The appeal against the orders of Forrest J made on 22 January 2015 is dismissed.
The cross appeal against the orders of Forrest J made on 22 January 2015 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone & Stone and Anor has been approved by the Chief Justice pursuant to s 21(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)) or to record a variation to the order pursuant to r 17.02, Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 10 of 2015
File Number: BRC 1645 of 2011
| Ms S Stone |
Appellant
and
| Mr Stone |
Respondent
and
Ms Stone
Cross Appellant
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms S Stone (“the maternal grandmother”) and her daughter, Ms Stone (“the mother”) separately appeal against parenting orders made by Forrest J on 22 January 2015. The maternal grandmother also sought to appeal against property orders made between the mother and Mr Stone (“the father”). The Independent Children’s Lawyer and the father both resist the appeals.
The parenting orders relate to the children of the mother and the father, namely B born 2005 and C born 2006 (“the children”). The orders relevantly provide that the father have sole parental responsibility for the children, that they live with him, and that the children spend no time with either the mother or the maternal grandparents. The orders further provide for limited communication between the children and the mother and maternal grandparents in the form of letters, cards and presents, provided that the father is satisfied that the contents are suitable to be given to the children. The father is obliged to inform the children that they may send letters and presents to their mother and maternal grandparents, and if suitable he must send that correspondence.
The mother does not challenge the order that the children live with the father.
The property order the maternal grandmother seeks to appeal against is Order 12 which relevantly provides:
That the mother shall indemnify the father against any and all liability to her parents or either of them, howsoever arising.
Also before the Court was an Application in an Appeal by the maternal grandmother that the appeal proceed without recourse to the transcript. We deal with this below.
It is necessary to traverse the background of the matter taken from his Honour’s reasons so as to give context to the appeal and the trial judge’s orders.
Background and procedural history
The mother and father met in England and married in 1999, moving to Australia in 2004. The children were born in 2005 and 2006, and after the birth of the second child the maternal grandparents moved to Australia and began living on the mother and father’s property.
The couple separated in May 2010 and the father spent time with the children by agreement on an irregular basis until December 2010. At this time the mother stopped facilitating contact between the children and the father and he commenced proceedings seeking orders that the children spend time with him.
On 20 June 2011 orders were made by Federal Magistrate Jarrett (as his Honour then was) providing that the children spend overnight time with the father beginning with two day only visits followed by the commencement of alternate weekend visits. After the second weekend visit, which the mother attended, the mother stopped allowing the children to spend time with the father as he refused to allow her to accompany the children.
Despite further orders being made allowing for the children to spend time with the father over Christmas, the mother did not comply with the orders.
On 1 February 2012 a Family Report was released which contained a recommendation that the court consider ordering the children to live with the father. On 2 February 2012 the matter came before the court but the mother did not attend. On that day, the Federal Magistrate made orders that the children spend time with the father from 3 February 2012 onwards. The father arranged for the local police to assist him with the collection of the children, but the children and the mother could not be found.
On 10 February 2012 the matter was again before the court. The mother appeared and asserted that she would not disclose the location of the children. The mother asserted that the children were in danger in the father’s company, and alleged that he might kill them. On 10 February 2012 the Federal Magistrate made orders that the children live with the father and also made a recovery order. The mother failed to produce the children and they could not be found by the Federal Police.
In June 2012 the matter was first before the trial judge, and the mother asserted that she did not know where the children were currently living. His Honour encouraged the maternal grandmother to intervene in the proceedings and seek orders that the children live with her. The maternal grandmother took this course and became a respondent to the proceedings.
On 7 August 2012 his Honour made interim orders suspending the orders made by the Federal Magistrate that the children live with the father, and instead ordered that the children live with the maternal grandmother at the former family home. After his Honour made that order, the children were delivered from hiding and commenced living with her. At the same time, his Honour made orders that provided for the children to spend supervised time with the father.
The maternal grandmother facilitated some, but not all, of these visits.
As well as the mother’s failure to facilitate time between the children and the father and the serious issue of the disappearance of the children for some six months, his Honour’s reasons set out a history of allegations of hostility and violence between the parties, some of which were the subject of findings by his Honour including:
·The maternal grandparents both “made calls to the father and cruelly taunted him about [his] inability to be able to see the children” when the mother failed to facilitate his time with the children in 2011 (at [15]);
·The mother alleged that the youngest child was not the biological son of the father. On 23 January 2013 his Honour made orders that the mother and father submit to parentage testing to settle the issue. The mother failed to facilitate the test and his Honour accepted evidence that the DNA samples had been tampered with and that the evidence suggested that “the mother, the maternal grandmother or even the maternal grandfather were responsible for the tampering” (at [39]); and
·On 10 April 2013, the week before the trial, the mother and maternal grandfather were involved in an incident with the father where they alleged that the father attacked them after they were walking away from a court hearing on that day. The father recorded the incident with a video on his motorcycle helmet and his Honour was satisfied that this recording supported the father’s version of events, namely that it was the mother and maternal grandfather who instigated the assault. The mother and maternal grandfather are currently awaiting trial on assault charges against the father in relation to this incident (at [64]).
The matter then came before his Honour on 15 April 2013. The mother sought an adjournment of the hearing, alleging that she could not participate in a trial due to injuries she alleged she had sustained in the 10 April 2013 incident. The trial judge dismissed the application for adjournment after hearing evidence from the father and the Independent Children’s Lawyer and watching the video recording of the incident we referred to above. His Honour was satisfied that the mother was seeking to obtain an adjournment by false pretences (at [64]).
Thus the hearing commenced on 15 April 2013. Overnight between the second and third days of the trial, his Honour made an ex parte order that the Federal Police collect the children from school the next morning and deliver them to the court, and subsequently into the father’s care. His Honour expressed concern that the children would likely be taken into hiding again if any order was made requiring the children to be delivered to the father (at [82]).
On 18 April 2013 when the hearing was to be stood over part heard, his Honour made further interim orders that the children live with the father and not spend time with, nor communicate with, the mother or maternal grandparents.
His Honour noted that during the hearing, the maternal grandmother withdrew from participating in the trial seeking orders in her favour. She thereafter supported the orders sought by the mother. His Honour indicated that at the conclusion of the hearing, the maternal grandmother sought orders in her favour providing for the children to spend time with her (at [86]).
His Honour delivered his reasons for judgment and made final parenting orders on 22 January 2015.
The appeal
Documents sought to be filed by the mother
At the outset of the appeal the mother sought to file two documents, the first being a letter from the mother’s doctor asserting that “she has most likely an aggressive brainstem cancer” with a poor prognosis, and the second a letter from her psychiatrist asserting the same, based on what the mother had told the psychiatrist.
We determined that the material sought to be filed by the mother should be viewed as an application to adduce further evidence in the appeal, and that the application would be dismissed. We indicated we would provide reasons for this decision.
Counsel for the mother contended that had the information contained in the documents been known at the time of the trial the trial judge may have made orders for the children to spend time with the mother. It was submitted that the Full Court could take this evidence into account on appeal and make orders providing that the children spend time with the mother on a re-exercise of the trial judge’s discretion.
The father and the Independent Children's Lawyer both argued that the proper forum for this information to come before the court would be before a trial judge on the application of the mother for a variation of the orders. The evidence could then properly be tested. For example, the affidavit from the psychologist refers to a report from the mother’s doctor – one that the court has never seen and the mother has never put into evidence.
The power of an appeal court to admit further evidence on appeal is circumscribed. The court in CDJ v VAJ (1998) 197 CLR 172 said at 85,448:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
There may well be a dispute about the medical evidence concerning the mother which will require cross examination. Such controversies can only realistically be dealt with at trial level. We will thus not receive the evidence.
Thus the mother’s application must be dismissed.
The maternal grandmother’s application regarding transcript
By Application in an Appeal filed 8 February 2016 the maternal grandmother sought a direction that the appeal proceed without recourse to transcript, as she could not afford to obtain it. That direction was made.
We did however have the benefit of an extract of the transcript from the trial, the evidence of the single expert appointed in the matter, Professor E, given on 17 April 2013.
Although the maternal grandmother was the appellant in the proceedings, and the mother the cross appellant, it was agreed by the parties that the mother should argue the cross appeal first as she had the assistance of counsel. We propose that our reasons deal with the matter in the same course.
The mother’s cross appeal
The mother’s Amended Notice of Cross Appeal contained 22 grounds of appeal, though many merely referred to sections of the Family Law Act 1975 (Cth) (“the Act”) and did not allege any error by the trial judge. The Notice of Cross Appeal had clearly been drawn by the mother when acting for herself. At the commencement of the appeal the mother was granted leave to amend the grounds on which she sought to rely. The grounds of the cross appeal were thus that her Honour erred in:
1.Failing to make orders reflecting the recommendations of the report writer that the mother have contact with the children;
2.Failing to give the mother time to read Dr [E’s] report prior to her cross-examination;
3.Making an order that the children be removed and live with the father in circumstances where the trial judge had not heard the mother’s evidence;
4.Failing to give sufficient weight to or give proper consideration of evidence of abuse; and
5.Failing to have any regard to a medical certificate tendered by the mother on the first day of the trial when she was self-represented.
In accordance with the reformulated grounds of appeal the mother also relied on the written submissions handed to the bench by her counsel, rather than her Amended Summary of Argument.
Failure to make orders consistent with the recommendations of the report writer that the mother have contact with the children
The recommendations to which this ground refers are those of Ms D, a Family Consultant who interviewed the parties and provided a Family Report in April 2013. In her report she said:
234. The following recommendations are not intended to be prescriptive. They are offered as a means of assisting the parents, the Independent Children's Lawyer and the Court in reaching an outcome that is in the best interests of [the children].
…
(c) That [the children] should live with their father contingent on and supported by [the father’s] undertaking to work voluntarily with the Department and undertake any requirements of interventions such as attendance at particular support agencies or courses.
(Family Report April 2013, page 52)
She then recommended:
(a) That [the children] spending unsupervised time with their mother be contingent on and supported by [the mother’s] undertaking to:
i. Attend domestic violence counselling to minimise the risk of placing her children in any at risk situations and to develop her insight into her own role in her past dysfunctional relationships and how this has impacted on her children.
ii. seek a referral from her General Practitioner to a suitably qualified mental health practitioner to assist her in an ongoing manner in dealing more constructively and appropriately with her negative feelings towards [the father]
iii. To provide the Independent Children's Lawyer with a copy of confirmation of her attendance at such counselling.
iv. Not to contact the children at school during the time they are with their father
v. Not to attend the father’s home or be in the vicinity of the father’s home
vi.Ensure that her parents do not go to [the father’s] home or be in the vicinity of the father’s home
vii. Demonstrate over the next six months that she is able to have civil communication with [the father] in relation to the children by attending mediation with [the father] to work out strategies to assist them to do this.
(Family Report April 2013, page 53)
Further, counsel for the mother relied on the evidence of Dr E in support of this ground. During the mother’s cross-examination of the expert the following exchange occurred:
And what of the position whereby the children – what’s the effect on the children if they were to lose their mother? --- I think it would be a terrible thing for the children to not have a meaningful relationship with their mother, just as it would be terrible not having a meaning [sic] relationship with their father. Children need both.
(Transcript 17 April 2013, page 32 line 46-47, page 33 line 1-2)
It is, of course, necessary to put this evidence of the expert into context.
In his report for the court filed 16 April 2013, the expert said:
(ii) On the data available the mother has significant personality vulnerability and moreover this appears to be of an extent that would constitute disorder of personality. The personality configuration is of a mixed (non-specific) type. There is marked dependency on her parents suggesting that dependent traits are very significant. I also note some histrionic traits and narcissistic traits in that she is unable to see things other than from her own perspective or more importantly from the perspective of the children. She assumes that her own needs are the needs of the children. It is probable that she seeks a highly enmeshed relationship with them mirroring her own relationship with her parents.
(iii) The mother can be said to have absorptive capacity which allows her to recreate reality such that she sees things the way she wants to.
(iv) As pointed out in my comments with respect to the report of Ms [D], perhaps of greater importance than the mother’s individual psychopathology is the pathological relationship she has with her parents. This is more than dependency on her parents stemming from the fact that she is the only child. It seems that all three individuals re-construct reality including the past so they would have a particular view of issues involving the father. The situation can be likened to a “folie au trois” with the important distinction that there is apparently no psychotic process involved or delusional thinking in any of the three. Strictly speaking I can only make this exclusion with respect to the mother as I have not assessed her parents.
(Single Expert Report filed 16 April 2013, page 20-21)
Dr E continued and noted that he was sceptical whether the mother would benefit from any psychotherapy as suggested by Ms D unless she was to make a decision to live away from her parents. He added that he was not optimistic that the mother is a good candidate for psychotherapy.
The mother questioned Dr E about what could happen if the communication improved between the parties. Dr E said:
…If you’re asking me can the situation between you and your former husband be repaired in some therapeutic way for the benefit of the children, my answer is, at the present time, no. … Down the track, once there’s been – once you’ve become your own person away from the power of the family dynamics, maybe with assistance of therapy, then it may be possible, but at the present time, I think any therapeutic endeavour would have a snowball’s chance in hell of working.
(Transcript 17 April 2013, page 31 line 13-20)
His Honour, after noting at [108] that in the adjournment of the hearing the mother had engaged with a psychologist who gave evidence during the trial, said:
119. In all of the circumstances of this case, I am quite satisfied that the boys are being appropriately cared for by their father and that it is in their best interests to continue to live with him. I accept all of the expert evidence about the mother’s lack of insight into her attitudes and behaviour, including the evidence adduced from the mother’s own treating psychologist in the concluding part of the trial. The mother has not admitted her wrongdoings in this matter. Despite having said “I am sorry your Honour” so many times during the course of her appearances before me that it became unduly distracting, she never once, in my view, demonstrated genuine remorse for her insidious behaviour in respect of her co-parenting relationship with the father or for the lies she was telling the Court.
120. Without any acceptance of her wrongdoings, without any inkling of genuine remorse, without any evidence of the development of insight, to order that the boys spend any unsupervised time with the mother would simply place them at unacceptable risk of further emotional and psychological harm. I am also satisfied that the risk that the mother would put the boys into hiding again is real and completely unacceptable. I am satisfied the risk that she would again attempt to seriously influence the boys negatively against their father is, given their current ages, unacceptable. I am satisfied the risk she would attempt to fabricate some story against the father in an attempt to force change to the parenting arrangements is unacceptable.
We first observe that Dr E cast doubt on the likelihood of the mother being a suitable candidate for psychotherapy, one of the conditions precedent to Ms D’s recommendations. Further, Dr E’s evidence about the situation for the children if the mother is removed from their lives needed to be seen in context of his conclusions about the mother and the impact of her relationship with her parents on her relationship with the father and the children.
His Honour’s determination of the issues before him extended beyond the evidence and recommendations of the experts. As his reasons illustrate, his Honour carefully considered all of the relevant issues before coming to his determination. He accepted the evidence that the children wanted to see the mother, but concluded that their views were not determinative of the issues at [123].
It was further argued in written submissions that his Honour failed to give any or any sufficient weight to the “evolving situation”. The thrust of this argument is that his Honour declined to consider making interim orders to enable the mother to address some of the issues of concern to his Honour nor did his Honour make orders that provided for the children to spend time with the mother but with “protocols to cover possibilities including the mother ceasing close contact with her parents and living apart from them.” (Mother’s written submissions, page 2). It was argued for the mother that her being able to disentangle herself from her parents and their views was “eminently foreseeable”.
The genesis of this complaint arose during the examination of Dr E by counsel for the Independent Children's Lawyer:
[COUNSEL:] … And then finally, what evidence would need to be before the court where to say to the court – everything’s fine with the mother and unsupervised time happily can proceed. … --- I think the mother would need to be reassessed and I would think she would need to have to say that she has – she would need to show some insight. Even if it’s false insight – to say, I realise what harm I’ve done to the children by attempting to alienate them from their father – I realise this wasn’t right – I made up things – I was too much not my own boss in these actions and I need to develop myself as a person away from my parents. I would like to see that kind of change.
…
[COUNSEL:] And I hate to impose this upon you, but do you think that you might be the appropriate person to assess both the maternal grandparents and the mother in a future stage, given your knowledge of the matter?
[HIS HONOUR:] I wonder where this is headed, [counsel]. Certainly not real keen on the idea if it’s heading towards submitting to me that I should only make interim orders. … You will have to do a lot of work to persuade me in this case that any orders I make at the end of it are interim.
(Transcript 17 April 2013, page 13 line 43-47, page 14 line 1-20)
It is important to observe that, as his Honour recorded at [102], the mother attended on a psychologist in the period between the adjourned dates of the hearing. A report from that psychologist was before his Honour and she said that she had been engaged to “provide therapeutic intervention for the mother and specifically to address various issues raised in Ms [D’s] and Dr [E’s] written reports.”
His Honour noted that the mother had attended three appointments with the psychologist and referred to her evidence about the mother’s attendance and the content of their discussions. He continued, observing the evidence of the psychologist was that there “might be a limit to the amount of insight the mother might be able to gain in the longer term.” His Honour noted that the psychologist thought she might be better able to express an accurate opinion on the mother’s capacity to gain insight after therapy of six months rather than three sessions (at [107]).
His Honour concluded that it was in the mother’s interests to continue therapy and that she had done so following the conclusion of the hearing, however he said:
108. …I am not confident that she would have though, particularly given her failure to attend the last appointment before the trial concluded and her untruthful evidence about that.
His Honour was required to make orders that were in the best interests of the children and part of that determination required his consideration of whether he should bring finality to the issue. His Honour said:
124. I accept the submission made by counsel for the ICL that I could not be satisfied that the mother demonstrates the necessary insight or capacity for appropriate change. I am not persuaded at this point in time that she does. As a consequence, I have determined not to order any supervised time. I consider that without that insight and demonstrated capacity for change, even with supervision, time with the mother would present these boys with an unacceptable risk of emotional and psychological harm. I also find that there is an unacceptable risk of the mother and/or the maternal grandparents assaulting, abusing, threatening or harassing the father if they are able to come into contact with him through supervised contact visits. I also find that there is an unacceptable risk of one or more of the three of them hiding and following the father from a place where supervised contact might take place and then abducting the children and taking them into hiding again. I am satisfied that the consequences of that would be far more harmful to the children than not spending any time with the mother at this point in time in their lives. I will make no order for supervised time.
Clearly, his Honour considered the suggested possibility that the mother may be able to develop sufficient insight as to make a change, but concluded that it was unlikely.
His Honour’s conclusion and the orders he made were in the exercise of his discretion. Appeal courts will only interfere with the exercise of discretion, so quintessentially a part of the trial judge’s function, if it can be shown that the decision is “plainly wrong” (Gronow v Gronow (1979) 144 CLR 513 at 519). This has not been shown here.
This challenge to his Honour’s orders is not made out.
Refusing to give the mother time to read Dr E’s report
Unfortunately, because the Full Court did not have the advantage of the whole transcript of proceedings before his Honour, this point is somewhat difficult to consider. As we have indicated, we had before us only the transcript of evidence of Dr E.
Counsel for the mother submitted, on his instructions, that the mother first saw Dr E’s report just before he commenced his evidence and that she sought time to read the report before examination of the witness which was refused by his Honour. However, counsel for the Independent Children's Lawyer who appeared on the appeal and at the trial had no recollection of there being any application by the mother for time in which to consider the report.
It is apparent from the court file that Dr E’s report was filed on 16 April 2013 and he was examined by the mother immediately after the lunch break on 17 April. Counsel for the mother said he was instructed that the mother did not receive the report until 2.00 pm on the day Dr E gave his oral evidence.
We note, and counsel for the mother conceded, that there is nothing in the transcript of the evidence of Dr E where the mother raised any objection to his Honour about only just then having received the report and needing time to read it. On the contrary, a reading of the mother’s cross‑examination of the witness suggests that she was well aware of the content of the report and was not struggling to frame pertinent questions.
This challenge is not made out.
Ex parte orders made during the trial
As we have indicated, on the afternoon of the second day of the trial, his Honour made ex parte orders requiring the production of the children to the court registry. His Honour took that step because he was satisfied that any order that the children be placed in the father’s unsupervised care would be “wilfully disobeyed by the mother, with the support and encouragement of her parents.” He further considered that if that occurred, the mother and her parents would take the children into hiding again (at [82]).
It was argued that his Honour erred in making that order because he had not heard the mother’s evidence about the parenting matter and the incident in which the children were removed and their whereabouts not revealed for some months.
No submission was made as to the relevance of this asserted error to his Honour’s final orders. Nonetheless it was contended that he erred in making this order.
His Honour’s reasons make it clear that he was concerned with the history of the matter and in particular the actions that led to the children being hidden for some months. As he indicated, he was acting to protect them from that occurring again if he made an order that they live with the father.
While it is not necessary for the disposition of this challenge to his Honour’s orders, the reasons which follow [82] clearly demonstrate that his Honour’s expressed concerns had foundation.
This challenge is not made out.
Failing to give weight to the evidence of abuse or to make a proper consideration of that evidence
The thrust of this ground as argued by counsel for the mother was that his Honour failed to give any or any proper consideration to evidence contained in documents which were before other courts on this issue. Further, it was argued that his Honour erred in failing to give sufficient weight to the mother’s assertions of family violence perpetrated by the husband.
Dealing first with the documents said to have formed part of the evidence in other proceedings, counsel for the mother conceded that the documents from those other courts were not in evidence before his Honour. However, counsel for the mother argued that his Honour ought to have enquired about whether they existed because he was aware that there had been earlier domestic violence applications. It was also argued that these documents would have been of considerable importance to the determination.
Counsel conceded that there was no rule of procedure or any authority to support this argument and we reject it.
Moving then to the mother’s assertions of family violence, following the hearing of the appeal, with leave, counsel delivered to the court a note of the relevant appeal book references in relation to the issue of family violence.
There is no doubt that on a number of occasions the mother made very serious allegations of family violence against the father.
The mother’s allegations were considered in detail in Dr E’s report. He said that, if one accepted the mother’s account of the father’s behaviour, the personality issues were suggestive of “serious psychopathology”
(Single Expert Report filed 16 April 2015, page 13). Dr E then considered the documents that were provided to him as part of his referral. He then concluded:
It seems on the data available that the father’s apparent persecutory ideation as noted in the interview and mental state examination with respect to the actions of the mother and maternal grandparents has some basis. Thus I would withdraw any implication that the father has a paranoid personality of any other disorder that could give rise to persecutory ideation.
(Single Expert Report filed 16 April 2015, page 20)
Dr E then said of the mother: “The mother can be said to have high absorptive capacity which allows her to recreate reality such that she sees things the way she wants to.” (Single Expert Report filed 16 April 2015, page 20).
It is thus necessary to consider this argument against the background of those findings and his Honour’s own findings about the mother’s credibility throughout the judgment, but particularly at [57] and [98]. His finding about the mother’s evidence together with the evidence of the father and the experts who assessed the parties provided a powerful basis for his Honour to reject her evidence, as he did.
We thus reject the assertion that his Honour failed to give proper consideration to the mother’s allegations of family violence and this ground is not made out.
Failing to take account of the medical certificate tendered by the mother
This ground concerns a medical certificate tendered by the mother during the trial in which she claimed that due to injuries sustained in an attack on her by the father on 10 April 2013 it was impossible for her to attend the hearing commencing on 15 April 2013. His Honour rejected the application noting that it was opposed by both the father and the Independent Children's Lawyer.
The thrust of this challenge is that his Honour did not give attention to the medical certificate which said that the mother was not fit to attend court, arguing that it was not open to his Honour to disregard the medical certificate.
The certificate was under the hand of Dr P and dated 11 April 2013 and asserts:
This is to certify that [the mother] is receiving medical treatment and for the period 10/04/2013 to 18/04/2013 inclusive she will be unfit to attend court or travel to Brisbane.
(Exhibit 1, tendered 15 April 2013)
His Honour also considered the film of the alleged assault taken by the father who had a small camera on the front of his motorcycle helmet.
His Honour returned to this issue in his reasons for determination. He first noted at [45] that the mother had given a statement to the police to the effect that while walking away from court on the day of the alleged assault she noticed the father in front of her and also that her father was on the other side of the road. She said:
…I saw [the father] walk up beside and stand to the right of my father. I could not tell or hear if anything was said. I saw [the father] turn and face towards my father and then lunge at him as if he was going to rugby tackle him.
I’m not sure what happened but my dad fell to the ground and [the father] was leaning over the top of him. I ran up and stopped to the side of [the father]. [The father] then grabbed my arm and I think tried to throw me over his shoulder in some type of Judo move. I’m not sure what happened then but I fell to the ground and landed on my right shoulder. [The father] fell on top of me.
His Honour then noted at [46] that the mother alleged that as a result of the assault, she “sustained a broken rear rib and dislocation of my right shoulder.”
The mother’s account of the father’s assault on her was corroborated by her father who also gave a statement to the police to the same effect.
His Honour then turned to the father’s account of the assault, which was that the maternal grandfather attacked him with what looked like a taser and then the mother attacked him from behind (at [51]). His Honour then said:
53. I have watched the video taken by the secreted camera many times. The visual and audio recording that it depicts is completely consistent with the factual matters contained within the father’s statement. It is not consistent with the critical factual matters contained within the mother’s statement and the maternal grandfather’s statement. …
His Honour concluded at [59] that he did not believe the account of either the mother or her father and was satisfied that the mother and maternal grandfather mounted a planned attack on the father.
It is against these findings, and with regard to a medical discharge report from the Royal Brisbane Hospital, where the mother had been taken after the incident on the day, that his Honour said:
63. The mother did not suffer any broken rib in the incident. Painful rib or ribs were not even mentioned to the doctor at the hospital she was taken to. No x-rays were taken that day. No diagnosis of broken rib or dislocated shoulder was given to her by the hospital doctor.
64. The next day, Thursday, 11 April 2013, the mother saw her GP on the Sunshine Coast and told her she and her father had been assaulted by the father in Brisbane the day before. X-rays were taken that day. The x-rays revealed no broken ribs or other broken bones and did not reveal anything that supports the assertion that she had a dislocated left shoulder. Despite this, the mother maintained to police when she gave her statement a couple of days later that she had suffered a broken rib and a dislocated shoulder. She maintained that to her barrister who she instructed to ask for an adjournment and that was maintained, without any expert evidence being adduced to support the mother’s assertion, at the adjournment application that was refused. It was a false assertion. I am satisfied that it was asserted by the mother knowing it to be false. I am satisfied that she was seeking to obtain an adjournment of the trial by false pretences, aided and abetted by her father and her mother. I am satisfied that she and her father conspired to assault the father and then to have him wrongfully charged with assault. Fortunately for the father, they apparently did not consider that he would have a concealed video camera in his helmet. Otherwise, the outcome for him could potentially have been quite different.
It was argued that his Honour erred in disregarding the medical certificate, and further argued that because the certificate merely asserted that the mother was unfit to attend court but did not specify a reason, the mother may have been unfit to attend court by reason of a psychological state rather than as a result of her asserted injuries. Given that the adjournment application was made by the mother on the basis of injuries suffered by her through the father’s assault and that these documents were tendered in support of that argument, this submission is entirely without foundation.
His Honour’s reasons demonstrate why he refused the adjournment and did not consider the medical certificate to be conclusive of the issue. No error has been shown.
The ground must fail, as must the mother’s appeal.
The maternal grandmother’s appeal
The maternal grandmother’s Amended Notice of Appeal contained five grounds of appeal which were consolidated orally at the appeal hearing to two main issues in respect of the parenting orders, namely that the orders were not in the best interests of the children and that that the maternal grandmother posed no risk to the child.
She further contended that the trial judge failed to give proper consideration to the evidence of domestic violence orders.
The maternal grandmother also wished to press her appeal in respect of Order 12 of the property orders.
The best interests of the child and there being no unacceptable risk to the children from spending time with the maternal grandmother
Although the maternal grandmother raised two challenges to his Honour’s orders, they were argued together and there is commonality between them that facilitates them being considered together.
The maternal grandmother argued that the orders which prevent her from having any contact with the children were not in their best interests because she had not abused them at all and posed no unacceptable risk to the children.
His Honour’s reasons note at [128] that the maternal grandmother sought orders in the trial that would allow her to see the children monthly and communicate with them through Skype. He then said:
129. As I have observed, I am quite satisfied that the maternal grandparents, including the maternal grandmother, have been significantly responsible for many of the difficulties that emerged in this case that prevented the boys having a meaningful relationship with their father for a long time. As with the mother, I am not satisfied that the maternal grandparents have demonstrated remorse for their actions or that they have the capacity to develop insight and to change. The maternal grandmother’s unwavering support of the mother and the maternal grandfather’s story about the North Quay assault on the father, even in the face of the weight of the evidence to the contrary, does her no credit. Her support for her husband’s version of the assault on Mr [A] in June, 2012 does her no credit. Her attempts to make contact with the boys at the school they were attending in 2013 and her brazen attempts at denying and covering that up also do her no credit.
His Honour had earlier in his reasons made trenchant criticisms of the maternal grandmother, finding at [22] that she and her husband, the maternal grandfather, had assisted the mother in concealing the children from the father. Nor did he accept her evidence that she and the maternal grandfather were not living with the mother (at [111]). Further his Honour’s findings about the maternal grandmother’s application must be read in light of the evidence of the experts about the nature of the relationship between the mother and her parents and their views about the father.
He concluded his consideration of the maternal grandmother’s application thus:
131. I am satisfied that these two grandparents have significant psychological pathology and that, whilst that continues to determine their actions in life it is not in the boys’ best interests to be seeing them or having direct contact with them as a couple or, indeed, with either of them individually. It is beyond the point of this Court having to order the grandmother “to be assessed by a professional”. As with the mother, I expect a lot of very good psychotherapy from a very competent and experienced psychiatrist or psychologist would be required to make any difference to the maternal grandparents’ attitudes and behaviour. The father made it clear that it will take years before he might ever trust the maternal grandparents again. That is, in my view, a reasonable position on his part. Until then, or until the maternal grandmother and/or her husband are able to persuade this Court that they are worthy of trust and would be a beneficial influence in their grandsons’ lives, I will not be making an order for the boys to be spending any time with either of them, in any setting. I will not be making an order that provides for the boys to be communicating directly with them either.
In essence, it was the maternal grandmother’s case that Dr E had accepted the word of Ms D in coming to his conclusions and, because he had not interviewed the grandmother and the grandfather, his conclusions were unreliable. Thus she argued that the trial judge was wrong to conclude that there was a risk to the children if they had time with her.
The maternal grandmother argued that the trial judge’s findings about her contributions to the difficulties experienced by the children were false and she said that she had taken the children to a contact centre to facilitate time between the children and the father.
As to the trial judge’s failure to give sufficient attention to the evidence of domestic violence orders, the maternal grandmother referred to an order in which the paternal grandfather was the complainant. After discussion, the maternal grandmother conceded that this evidence was relevant to the issue of where the children lived, and not related to her application which was to have time with them.
Essentially, the maternal grandmother wishes to see the children.
His Honour’s findings about the maternal grandmother and her role in the difficulties faced by the children, the evidence of the experts, and his Honour’s conclusion that it was not in the children’s best interests to spend time with her drive the conclusion to which his Honour came, namely that there be no order that the maternal grandmother spend time with or communicate with the children.
We see no error in his Honour’s order and the challenges to his Honour’s orders are not made out.
Appeal against property order
Finally, the maternal grandmother sought to appeal against Order 12 made by the trial judge in the property settlement proceedings between the father and mother. That order provided:
(12) That the mother shall indemnify the father against any and all liability to her parents or either of them, howsoever arising.
The maternal grandmother submitted that she attempted to intervene in the property proceedings between the mother and father but her application was rejected. She asserted that had she been permitted to intervene “all the paperwork would have come forward” by which we understand her to argue that the evidence before his Honour was incomplete.
We observe that during the hearing before his Honour, the mother was declared bankrupt.
The maternal grandmother was not a party to the property proceedings between the mother and father. The order about which she now complains does not bind her in any way. As she is therefore unaffected by the decision, she lacks standing to appeal.
Thus the maternal grandmother’s appeal against his Honour’s orders will be dismissed.
Costs
We were advised that no orders would be sought in the event the appeal and cross appeal were dismissed. We will thus make no order for costs.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Ainslie-Wallace JJ) delivered on 4 August 2016.
Associate:
Date: 4 August 2016
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