SWEFFORD & TARBELL
[2012] FamCAFC 80
•13 June 2012
FAMILY COURT OF AUSTRALIA
| SWEFFORD & TARBELL | [2012] FamCAFC 80 |
| FAMILY LAW ─ APPEAL ─ Appeal against interlocutory orders in parenting proceedings for supervision of the time the child is to spend with the mother ─ Where the mother complained that the trial Judge had erred by failing to order that the child spend time with her either unsupervised, or supervised by a Contact Service other than that to which the trial Judge had ordered ─ Where the Court was not referred to any evidence before the trial Judge which established that the exercise of his discretion to continue the orders for supervision of the time the mother spent with the child which had operated for some time was vitiated by material factual error ─ Nothing to which the Court was referred to established any of the recognised and long established grounds for appellate intervention ─ Appeal dismissed. FAMILY LAW ─ APPEAL ─ Where the mother challenged the trial Judge’s refusal to alter the interlocutory orders made by the trial Judge with respect to the time and the circumstances which the child was to spend with each of the parties ─ Where the Court was not referred to any error of fact or of discretion, or of principle ─ Where the findings, and conclusions made by the trial Judge had not been shown to be other than reasonably open to his Honour in the context of an interlocutory hearing ─ Appeal dismissed. FAMILY LAW ─ CROSS-APPEAL ─ Parental Responsibility ─ Where the father complained that the trial Judge erroneously failed to make an order for sole parental responsibility in his favour on an interim basis ─ Where the father had made no submission to the trial Judge in support of an order for sole parental responsibility being made in his favour pending further order of the Court ─ Where the trial Judge would have denied the mother natural justice had he made an order for sole parental responsibility in favour of the father ─ Cross-Appeal dismissed. FAMILY LAW ─ CROSS-APPEAL ─ Where the father challenged the orders made by the trial Judge with respect to the substitution of the single expert ─ Where the father complained that those orders were made on the sole basis that the mother objected to the previous single expert continuing as the court appointed expert ─ Where the father submitted that the trial Judge’s reasons for removing the single expert and appointing another was inadequately revealed ─ Where the Court accepted the submission of Counsel for the father that, in isolation, the fact that a party to proceedings has an unfounded lack of confidence in a court appointed expert would not normally be a basis for the removal of such an expert, and that doing so potentially creates a very undesirable precedent ─ Where the Court was not persuaded that the trial Judge made the order he did solely on the basis asserted on behalf of the father ─ Where the father would not be denied the opportunity to seek to rely upon the evidence of the previous single expert if he considered that to be appropriate ─ Where the Court was not persuaded that any provision in the trial Judge’s order was other than reasonable ─ Cross-appeal dismissed. |
| Family Law Act 1975 (Cth) Part VII; ss 60CC, 93A, 117(2A) |
| B v B (1988) FLC 91-978 De Winter & De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 M v M (1988) 166 CLR 69 |
| APPELLANT/CROSS-RESPONDENT: | Ms Swefford |
| RESPONDENT/CROSS-APPELLANT: | Mr Tarbell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| APPEAL NUMBERS: | EA | 143 | of | 2011 |
| EA | 24 | of | 2012 |
| DATE DELIVERED: | 13 June 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Rees JJ |
| HEARING DATE: | 2 May 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 22 November 2011 2 February 2012 |
| LOWER COURT MNC: | [2011] FamCA 1016 [2012] FamCA 72 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT/CROSS-RESPONDENT: | Ms Merkin |
| SOLICITOR FOR THE APPELLANT/CROSS-RESPONDENT: | A J Law & Company |
| SOLICITOR FOR THE RESPONDENT/CROSS-APPELLANT: | Mr Holmes, KDB Holmes Solicitors |
| COUNSEL FOR THE ICL: | Mr Berry |
| SOLICITOR FOR THE ICL: | Legal Aid NSW Sydney Central Family Law |
Orders
That the appeals EA 143/2011 and EA 24/2012 be dismissed.
That the cross-appeal be dismissed.
That the applications for leave to adduce further evidence be dismissed.
That there be no order for costs of the appeals or of the cross-appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell 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 Numbers: EA 143 of 2011 and EA 24 of 2012
File Number: SYC 889 of 2008
| Ms Swefford |
Appellant/Cross-Respondent
And
| Mr Tarbell |
Respondent/Cross-Appellant
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
introduction
By Amended Notice of Appeal filed 1 March 2012 Ms Swefford (“the mother”) appealed against interlocutory orders made on 22 November 2011 by Loughnan J in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) between herself and Mr Tarbell (“the father”).
In essence, the mother complained that the trial Judge had erred by failing to order that the child of herself and the father, D Tarbell (“the child”), spend time with her either unsupervised, or supervised by the K Contact Service.
By Notice of Cross-Appeal filed 2 February 2012, the father challenged Loughnan J’s order of 22 November 2011 discharging the appointment of Dr W as the single expert for the purpose of the proceedings and appointing in his place Dr Q. The father sought that the appointment of Dr Q be set aside and that Dr W’s appointment be revived.
The father also asserted in his Notice of Cross-Appeal that the trial Judge had erroneously failed to make an order pending further order for sole parental responsibility for the child in his favour.
By Notice of Appeal filed 1 March 2012, the mother also challenged Loughnan J’s refusal on 2 February 2012 to alter the orders with respect to the time the child was to spend with each of the parties, and in what circumstances, which he had made on 22 November 2011.
Each party resisted the other party’s challenges to the trial Judge’s orders.
The Independent Children’s Lawyer (“the ICL”) resisted both the mother’s appeals and the father’s cross-appeal.
Each of the mother and father filed applications for leave to adduce further evidence pursuant to s 93A of the Act. For reasons which will emerge, neither application for leave to adduce further evidence is entitled to succeed.
background
The father was born in 1953 and is thus aged 59.
The mother was born in 1962 and is thus aged 50.
The parties commenced cohabitation in 2003, married in August 2004, and separated on 1 January 2008.
The one child of their relationship, D, was born in August 2004 and is accordingly approaching eight years of age.
On 18 February 2008 the father commenced proceedings in this Court seeking sole parental responsibility for the child, and for the child to live with him.
On 29 February 2008 the Court made orders, the substance of which was that the father spend time with the child supervised by the C Contact Centre.
On 3 April 2008 a report by Dr W was completed. The report of Dr W resulted from orders made by Watts J on 29 February 2008.
In late April 2008, the mother removed the child from Australia.
On 1 May 2008 and 7 May 2008, the father made applications for orders to secure the child’s return to the jurisdiction.
On 15 September 2008 an order was made:
1.That the father have Sole Parental Responsibility for all issues relating to the passport or other travel-related documentation in the name of the child [D Tarbell], born … August 2004 (“the child”), including the making of requests for the cancellation of any current passport held by the child.
In early September 2010 the mother was arrested in City X, and the child was placed in a Dutch child protection facility.
On 27 October 2010 an application was made to the State Central Authority in the Netherlands for the return of the child.
On 7 December 2010 pursuant to Court orders made in the Netherlands, the child was released into the father’s care.
On 14 December 2010 the Court in City X ordered the return of the child to Australia pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”).
The father and the child returned to Australia on 24 January 2011.
The mother was extradited to Australia on 10 March 2011, and released on bail from A Prison on 3 June 2011.
On 18 August 2011, orders were made by this Court, the substance of which was that the mother spend time with the child supervised by the S Contact Centre for two hours each week. Orders for telephone communication were also made.
On 22 November 2011, for reasons which he then published, Loughnan J ordered that, pending further order of the Court, the child continue to spend time with the mother on a supervised basis.
The trial Judge also ordered that the appointment of Dr W as the single expert witness made in 2008 be discharged, and that Dr Q replace Dr W as the single expert witness.
the mother’s appeal
As is apparent from the written submissions of her learned Counsel, the mother raised numerous complaints in relation to the trial Judge’s treatment of, and reliance upon, the expert opinion evidence of Dr W, a consultant psychiatrist, as it emerged from his reports of 3 April 2008 and 27 May 2008.
Although it was less than entirely clear from the oral submissions of her Counsel, the mother’s enduring complaints with respect to the parenting orders made by the trial Judge appear to be that his Honour erred in continuing the requirement of supervision of the mother’s time with the child or that, if his Honour did not erroneously continue that requirement, he erred by failing to order that such time be supervised by K Contact Service.
For reasons which will become apparent, it is unnecessary for present purposes to refer in detail to many of the assertions contained in the written submissions of Counsel for the mother filed 2 April 2012, or to the submissions filed in Court on 2 May 2012 in support of the mother’s complaints.
A major focus of those submissions related to the trial Judge’s treatment of and reliance upon the report of Dr W. As the mother successfully sought before the trial Judge that Dr Q replace Dr W as the court appointed expert, the only significance that his Honour’s treatment of, and reliance upon the evidence of Dr W can assume is in the context of the mother’s challenges to the parenting orders made by him.
Counsel for the mother ultimately acknowledged during the course of debate that, as Counsel for the ICL confirmed that he would call Dr W to give evidence and be cross-examined at trial, none of the matters complained of with respect to the admissibility, or, weight appropriate to be given to Dr W’s evidence raised in the context of the interlocutory proceedings before the trial Judge, could possibly adversely or unfairly impact upon the mother’s case at the final hearing of the parenting proceedings.
In the light of the concessions ultimately, and sensibly made by her Counsel, it is unnecessary to consider complaints made by the mother asserting that the trial Judge had denied her natural justice, failed to afford her procedural fairness, or otherwise failed to deal appropriately with her as a litigant in person in relation to the evidence of Dr W, or her desire to cross-examine Dr W in relation to the reports which he had prepared more than three and a half years earlier. The issue in relation to Dr W is whether the trial Judge erroneously relied upon, or gave impermissible weight to his expert opinion.
In support of her challenge to the trial Judge’s order with respect to the supervision of time to be spent by the child with the mother, two complaints were agitated on her behalf. The first complaint was not articulated in either of the two outlines of argument prepared and filed by her Counsel. In oral submissions however, Counsel for the mother submitted that the trial Judge had erroneously placed undue weight upon the evidence of Dr W when determining the interim parenting orders he had made, in circumstances where the mother had not been afforded the opportunity to cross-examine Dr W.
The facts referred to in the submissions of Counsel for the ICL are fatal to this complaint. Those submissions recorded:
b. Ground 2
i.The question of Dr [W] attending for cross-examination was dealt with by orders made by the Honourable Justice Loughnan on 4 October 2011.
ii.There is no copy of the orders of 4 October 2011 included in the appeal books although if leave is granted for the appellant to file her amended notice and grounds of appeal the appellant is appealing orders 8 & 9 of the orders of 4 October 2011.
iii.Orders 8 & 9 made on 4 October 2011 are as follows:
8.That subject to his availability and subject to his fees being paid or secured, leave is granted to the mother to cross-examine Dr [W] on 22 November 2011 AND the Court requested that the Independent Children’s Lawyer make arrangements for that attendance if practicable.
9.Leave is granted to Dr [W] to attend by telephone on 22 November 2011 AND the Court further noted that if Dr [W] is available the mother must pay an amount set by Dr [W] for that appearance into Legal Aid NSW Trust account in advance of 22 November 2011.
iv.There is no issue that the appellant paid no money into the Legal Aid NSW Trust account.
v.The ICL otherwise agrees with the respondent’s summary of argument (pages 3 & 4). [Summary of Argument of ICL: 2].
An application for leave to appeal out of time against the orders of 4 October 2011 was filed on 19 April 2012. The amended Notice of Appeal handed up in Court by Counsel for the mother on 2 May 2012 contained within it challenges to orders 8 and 9 of the orders of 4 October 2011. The utility of seeking to appeal against those orders is not apparent to us, but nothing ultimately turns on that.
The mother clearly did have the opportunity to cross-examine Dr W before the trial Judge. We accept that the mother may not have been able to avail herself of that opportunity. How cross-examination of Dr W may have impacted upon the weight which the trial Judge could have given to her evidence in interlocutory proceedings has not been identified. Nor has anything in the evidence before the trial Judge to which we have referred. As will be seen, even if the mother did not realistically have that option, a balanced reading of his Honour’s Reasons for Judgment in relation to the interim parenting orders does not reveal that his Honour placed excessive weight upon the expert opinion evidence of Dr W.
In his Reasons for Judgment, the trial Judge recorded:
10.The main issue – the most important issue, I think, is the question of the parenting arrangements for the child between now and the final hearing..
His Honour also recorded:
12.To be euphemistic about it, the parties do not have a good relationship. I don’t think it would be practicable in the short term for them to have equal shared parental responsibility. In any event, it would not be in the best interests of the child.
13.The presumption is excluded and that excludes the requirements to consider things such as equal time and substantial and significant time. The Court is left on the authorities with an obligation to make orders in the best interests of a child. The legislation sets out how one determines that in section 60CC of the legislation. It is acknowledged in Goode & Goode that in interim proceedings it might not be possible for the Court to make findings of fact in relation to any particular matter. That arises because the hearings are conducted on the papers. Albeit that the mother herself is happy with some assessments that Dr [W] has made and not others, there is no agreement to accept the untested expert evidence filed in the proceeding to date. The parties have filed affidavits and they disagree in terms of the inferences to be drawn, and they disagree in many cases in relation to the background facts of the case. The Court must do the best it can.
14.In relation to child abuse, the issue before the Court is not whether something happened or did not happen, but the focus of the Court’s inquiry would normally be whether there is an unacceptable risk in relation to abuse or other serious allegations. Traditionally, and this is acknowledged in Goode & Goode the Court has behaved in a conservative way in interim proceedings because of the very matters that I have identified including the fact that it is often not possible to make findings of fact on disputed issues. There are authorities about how one makes findings of fact in relation to hearings on the papers, and, as a general proposition, the Court is not at liberty to make a finding of fact on a disputed issue of fact unless there is independent evidence that excludes one version of events or wholly supports another.
Neither party disputes the accuracy of the trial Judge’s identification of the issues before him in these paragraphs. Nor is the accuracy of the trial Judge’s summary of the evidence before him capable of being controversial for present purposes. The trial Judge’s approach to the issues requiring determination has not been shown to have been erroneous in law, and was consistent with authority.
In the light of his introductory observations, the trial Judge turned to consider the provisions of s 60CC of the Act. Those provisions relate to determining “best interests”. His Honour recorded in that regard that:
16.… probably one would be safe to say that the mother has been the primary caregiver of the child. Certainly, because of the removal, the child has predominantly lived with her since separation. The observations from the contact centre suggest a lovely interaction between the child and each of the parents, and suggest, as a general proposition no indication of a reluctance to separate from one parent to the other, and a joyful reunion on each parent and the child coming back together. …
For reasons which the trial Judge further articulated, he concluded that the Court could have some “comfort in relation to there being a meaningful relationship between each parent and the child”. His Honour proceeded to record:
18.In relation to physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence, some terrible things have happened to the child. I deliberately will refrain from talking about the circumstances of the mother’s removal of the child. She was at pains to try and explain to me the precise reason why she sought to remove the child, I think in an effort to encourage me that the circumstances will not arise again. The mother is facing a trial in relation to these issues and it seems to me that it is inappropriate for me to say more than I have about that issue.
19.In any event the child has experienced extraordinary changes in his life as a result of him travelling overseas in 2008, and he has been separated from his parents as a consequence of that, each of them in turn, for significant periods.
Referring to the allegations by the mother that the father had sexually abused the child prior to her removal of him from Australia in April 2008, the trial Judge recorded:
21.At or about the time of the removal, advice was provided from the Joint Investigations Response Team (an organ of the Department of Community Services and the police) that their investigation had been concluded, and that no action would be taken by the authorities. In his preliminary report, Dr W, expressed the opinion that he didn’t think there had been any abuse.
22.The problem is, whether it is examined under this provision or elsewhere, there is no doubt the child has been subjected to psychological harm. The issue for the ultimate trial will be as to whether the source of that can be identified, or whether there is an unacceptable risk of that harm from a particular source.
His Honour then recorded:
23.The boy is currently observed by compellable notifiers. Each school week he attends the [H] Public School and [AC]. [AC] is [a child and adolescent mental health service]. The teachers and counsellors are compellable notifiers, and there is no evidence of an escalation in concern in relation to him. There were very worrying aspects of his behaviour referred to in the initial referral to [AC] by the school, in around May 2011. There is evidence that in about August, the then 7 year old child tried to run away and suggested that he would cause harm to himself. Thankfully, the child is physically well and there is no evidence that he has come to harm of the sort that was threatened. From the [C Contact Centre] notes and the school material, there is a suggestion that he may well be settling down to some extent.
Having acknowledged, in some detail (pars 24 and 25), the reality that the mother challenged the opinion of Dr W that “he didn’t think there had been any abuse” (par 21), the trial Judge observed that:
25.… One of the outcomes of the mother seeking to impugn the opinion of the single expert is that I am left without any specific expert. There is just the background fact that the child seems to be, if not doing well, then not in as serious a circumstance as he has been.
As the trial Judge clearly recognised, if Dr W’s opinion in relation to the alleged abuse of the child was rejected, or given no significant weight, that did not, as the submissions of Counsel for the mother effectively assert, mean that a finding that abuse had occurred would, or should, be made. The trial Judge could have declined to make a finding that the father had not abused the child without reliance upon the opinion evidence of Dr W (see M v M (1988) 166 CLR 69 and B v B (1988) FLC 91-978). Whilst the trial Judge’s inability to make an affirmative finding in relation to allegations of sexual abuse was supported by Dr W’s opinion, it did not depend upon that opinion, as his Honour’s reasons clearly reveal.
Lest there be any suggestion that the trial Judge rejected the abuse allegations, his Honour reiterated:
26.I don’t want to underestimate the concerns that were raised that led to the [AC] reference. The fact alone, that a child of his age would be four days a week at [AC][ and not with his cohort at the [H] primary school, suggests that there were very real concerns for [the child]. One can read in the notes of the school, the concerns and frustrations of the staff, concerns for other students and concerns for the boy himself.
As the trial Judge clearly recognised, there were allegations of risk in relation to both parents. His Honour thus recorded:
29.… The father’s concerns include the fact that the mother removed the child from him for more than two years. We don’t as yet have any expert evidence that can be tested in relation to these things. I have heard from the mother directly, and she seems to be a very intelligent person. I have not heard directly from the father because he has been represented. I just don’t know about the nature of their relationships. There is some evidence about the mother’s extended family and a relationship there, but not much. Obviously, the mother’s action caused the boy not to see those relatives for more than two years.
Ultimately the trial Judge found:
30.… I can find that irrespective of her intention, the mother’s actions demonstrated no willingness or ability by her to facilitate the boy’s relationship with the father.
His Honour also recorded, accurately there is no doubt:
31.The effect of any changes in the child’s circumstances: the child has been separated from both parents, from the father and extended family, for more than two years at the mother’s hands, and, as a result of that and the consequential proceedings, he was then separated from her and the mother’s extended family for long periods since then.
The evidence of each of the parties was considered by the trial Judge to have raised “concerns” about the capacity of each parent to meet the child’s “emotional needs”, which was the issue about which expert evidence was required.
Having thus considered the relevant issues, and evidence in relation to them, the trial Judge concluded:
44.This is not a case where there is a clear safe course. There are risks in terms of the competing proposals. The current arrangement protects in relation to the child being removed from or within the Commonwealth. The mother addresses that by saying, “Well, although I haven’t said it in my affidavit, the circumstances are different now.” The inference is that the mother would not remove the child again. I do not understand the logic of that position. The system is fairly complete. If an order is made, then you comply with it. You don’t have to like it. If you don’t like it, you can appeal against it. If you don’t like the decision made on the appeal, you can appeal against that decision. The Court is available 24 hours a day, 365 days a year to respond to urgent circumstances. There is a capacity to invoke the welfare agencies to be involved in proceedings. As Winston Churchill said about democracy. It may not be the best system, but it’s the best system we know about. This is a matter that the mother might be taking up in the other proceedings and I don’t want to extend into there for risk of doing more harm to her. Nevertheless, I do not understand why the circumstances today are any different, to the circumstances in April 2008.
This issue was revisited when the trial Judge said:
47.It follows in terms of the competing proposals that, although this is far from ideal and I accept that there has been real harm done to this child by the circumstances, I can’t be confident that it is a better answer for me to make orders that the mother has sought. I didn’t allow further submission to be made in relation to her alternate proposal. The mother has proposed the child live with her but formally with her brother and his wife. They don’t ask for that order. That is fairly important. I assume that they would agree with it but they don’t ask for it. …
His Honour accordingly left “the current arrangements in place”.
Notwithstanding the, at times, sweeping and emotive assertions of Counsel for the mother to the contrary, no finding of fact made by the trial Judge to which we have referred in the paragraphs of his Honour’s reasons which we have recorded above has been shown to have been other than reasonably open to his Honour. Nor has it been demonstrated that his Honour placed excessive or inappropriate weight upon the contested evidence of Dr W. On the contrary, as the passages of his Honour’s reasons which we have set out above make clear, the trial Judge carefully avoided placing significant weight on Dr W’s opinion in relation to the possible abuse of the parties’ child.
Sensibly and properly, the trial Judge reached his conclusion with respect to “best interests” by reference to other matters, relying, where it was available, upon direct or circumstantial evidence which was not capable of being controversial.
We have not been referred to any evidence before the trial Judge which establishes that the exercise of his discretion to continue the orders for supervision of the time the mother spent with the child which had operated for some time was vitiated by material factual error. Nor has it been demonstrated that the exercise of his Honour’s discretion miscarried or was vitiated in any other way. The submissions on behalf of the mother that the trial Judge erred in concluding that supervision continued to be appropriate are little short of disingenuous, and cannot be accepted.
Consistent with accumulated judicial wisdom and the authorities, the trial Judge made orders which, albeit as he readily acknowledged as being less than entirely satisfactory, were, on balance, on the untested evidence before him, consistent with the child’s best interests. Nothing to which we have been referred establishes any of the recognised and long established grounds for appellate intervention (see House v The King (1936) 55 CLR 499, Lovell v Lovell (1950) 81 CLR 513, De Winter & De Winter (1979) FLC 90-605 and Gronow v Gronow (1979) 144 CLR 513).
The second aspect of the mother’s complaints relates to the trial Judge’s refusal to change the place of the mother’s supervised time with the child to K Contact Service. The complaint on behalf of the mother in both sets of written submissions filed on her behalf was:
9.The authorities state that the first question is whether the error was material and then whether the error affected the conclusion: De Winter & De Winter (1979) FLC ¶90-605. The court decided that the [C] Contact Service was appropriate for the purposes of supervised contact for the mother, but the factual error lay in the assumption that her family was funding her legal fees. The material error lay in the evidence that the costs of the [C] Contact Service were $60 per hour, when the mother had proposed a contact centre she could better afford, at a cost of $30.00 per hour at [K Contact Service]. The error affected the conclusion because the decision of the court left her at the [C] Contact Service on the assumption that her family was funding her “legal fees” when in fact this was not so and there was no evidence adduced and tested that it was a situation that existed. But for that error, the mother could have been enjoying contact more regularly and at a substantially reduced rate at [K Contact Service] to the benefit of the child’s best interests pursuant to the Family Law Act 1975, s 60CC(1).
10.The “security requirements” for the [C] Contact Centre also raised matters as factual errors in that the mother was deemed to need strict supervision based on the premise that she was a flight risk. However, the [C] Contact Service Centre is not “secure”. The gated fence around the centre is only waist high such the mother’s child often jumps the fence to retrieve his ball. Children and even toddlers have been known to escape through the gate and have had to be retrieved by the supervising staff. The centre is not appropriate to the orders as made by the court. Moreover, the conclusion by the court forcing the mother to continue with the services of [C Contact Service] are disadvantageous to the best interests of the child as the mother has sought to change the supervising venue to a more affordable service, thereby being able to take advantage to afford more time with the child. But for the factual error that the mother requires ‘strict’ security at [C Contact Service] the mother’s application to change orders for more affordable service would have been better placed.
11.The court has made a factual error in ascribing to the mother the continuing proposition that she is a flight risk when circumstances have significantly and substantially changed. Continuing to persist with ascribing the mother as a flight risk is a material error of fact because the supervision between her and the child is premised on this ‘flight risk’ but the child’s passport is secured. She cannot take flight with the child and she has not been given the opportunity to swear that she will not take flight with the child. Therefore, the error of fact has affected the conclusion to order supervised contact on the basis of the error of a material fact that the time between the mother and the child must be supervised due to her flight risk. [Summary of Argument on behalf of the Appellant Mother: 4-5, pars 9-11].
The trial Judge recorded in relation to the need for supervision of the mother’s time with the child:
38.The supervisors raised that with the mother, asking her to speak up so they could hear her interchange with [the child] and the mother repeated: “You need to tell everyone what you want to happen. I will be telling people what I want.” This little boy is seven years of age. He needs to get on with being seven years of age. His biggest problem should be what he eats, not being an advocate in the dispute between his parents. If these decisions were up to him, we wouldn’t need the court system; we could just ask him. I am not a forensic psychiatrist and it may be that there is a benign explanation for that, but it seems to me to be of concern, particularly, as I say, when the mother is on notice that she is being observed. It trite to say that there would not be any brake on that sort of conduct if the mother was not being observed. The mother has not advanced a case as to why that would be an appropriate thing to say. It could only lead, presumably, to both parties badgering the boy about what he should say. It is hard to see how that could lead to a good outcome.
…
45.There has been a reference today to the fact that there is a bond in place in relation to the other proceedings. I suppose that might be a deterrent t [sic] a further removal. I cannot help thinking that if the situation was reversed and the father had taken the child to South America for two years, the mother would be outraged if I was to order unsupervised time between the father and the child. I would think that an order I made for unsupervised time in those circumstances wouldn’t survive appeal by more than about five minutes.
46.The other aspect is that notwithstanding she is being supervised, the mother has on a number of occasions had to be reminded of the need to stay away from certain topics when she’s dealing with the boy, not to confuse the boy. She seemingly has not taken that advice. …
The submissions made on behalf of the mother (pars 9, 10 & 11) in relation to “security requirements” conveniently overlook a number of matters. We have not been referred to any evidence before the trial Judge of the security arrangements at K Contact Service. Nor have we been referred to any evidence that security at the C Contact Centre had been, was, or would become problematic for the mother and child in these proceedings. We have not been referred to any evidence before the trial Judge in relation to financial matters which rendered his Honour’s decision erroneous. Where the trial Judge referred to the mother’s need for “strict” security has not been identified, and we have found no reference to it for ourselves in his Honour’s reasons.
The trial Judge said in relation to this issue:
48.It follows that I’m going to leave the current arrangements in place. The mother said that she’s not happy with the [C] Contact Service. That is an understatement. After I pursued that with her, however, she would prefer that to not having time with the child. I will leave the [C] Contact Service arrangement in place, and an additional arrangement is suggested on behalf of the child, and I will make that order. There is no detail spelled out and that was the subject of complaint on behalf of the father. I am told that the additional facility would be available only once a fortnight. The result will be three times a fortnight rather than twice.
Neither by reference to the evidence before the trial Judge, nor to the further evidence sought to be relied upon by the mother has it been established that the trial Judge erred in declining to change the existing orders in relation to supervision of the mother’s time with the child. His Honour may have acceded to the mother’s application, but that is not the test for present purposes.
The mother’s challenge to the trial Judge’s refusal on 2 February 2012 to vary the orders he had made on 22 November 2011 can be swiftly disposed of.
The trial Judge recorded the dispute which came before him on 2 February 2012 in the following terms:
5.So there are two broad categories. One is the change in the contact centre and the other is these other category of orders. It is said on behalf of the father and on behalf of the child that no further orders should be made today on the basis that the court has conducted an interim hearing in relation to the child’s living arrangements and subject to the fact, of course, that there are ongoing proceedings as a result of those orders the court shouldn’t now entertain a further application in relation to interim matters.
There is no doubt that his Honour there accurately defined the ambit of the dispute.
The mother’s case on 2 February 2012 was accurately recorded by the trial Judge in the following terms:
6.The mother seeks a change in the contact service because [C Contact Service] has had a physical change of accommodation and that there is now a smaller and less satisfactory area available. The new area is said to restrict the mother and, more importantly, the child in relation to the activities that can be conducted on the supervised visits. Next, that the mother cannot afford the existing fees for [C Contact Service] and, in any event, could not afford any additional fees for more time with [C Contact Service]. Finally, the mother complains that the father has compromised the independence of [C Contact Service] by things that he has said, the contact that he has had, and by demonising the mother and members of her family to the staff at [C Contact Service].
Having referred, accurately, to the evidence upon which the mother relied in relation to the substitution of K Contact Service for the C Contact Centre the trial Judge said:
11.I suppose there are two issues. A decision has been made about supervised time, for better or worse, and I am not literally able to make a different decision today unless something substantial has occurred. There is not evidence before me on the basis of which I could find that anything substantial has occurred. For all the reasons that the parties are aware of and the reasons that I alluded to in my judgment on 22 November 2011, the current situation is far from ideal circumstances or even acceptable circumstances for this little boy. In a perfect world there would be services available without cost; there would be unobtrusive supervision arrangements. I suppose, in a perfect world, the parents mightn’t find themselves and [the child] mightn’t find himself in this position. But this is simply where we’re up to.
The trial Judge proceeded, in some detail, to consider the assertions of the mother, and his Honour’s responses to them. Those paragraphs reveal:
15.I don’t quite understand the mother’s case about it but the mother corrects the record in relation to – or tries to correct the record in relation to what she has said to [the child] at the [C] Centre. I don’t really follow the nature of the distinction she makes but her evidence is that [the child] said:
My only problem is that I want to be with you every day, mummy.
The mother deposes:
I told [the child] I wanted to be with him every day too and replied, “Tell your school teacher that you want to be with me every day and tell other people.
Then she says:
I did not coach [the child].
16.And she says that the supervisor has incorrectly interpreted the conversation. I must say, to the extent that the supervisor did, then perhaps I have fallen into the same error. It might be that the single expert who takes up the role in the case ultimately will say that what the mother told the child was proper and a sensible thing for the mother to say to the child. I can’t help thinking if there was evidence that the father had said those words to the child, the mother might be aggrieved about it. I may be wrong.
17.It might be that there’s a distinction that I’m missing but having some experience in parenting cases over 16 or so years in this court, without that assistance, that’s the sort of communication that we would normally try and avoid occurring between an adult and a child who is the subject of proceedings in the court. So, as I say, it might be that there’s some particular thing – a nuance that I’ve missed. Coming back to the abduction that is not an unremarkable thing to be euphemistic about it. So the problem is the mother’s assessment about the qualities of a supervisory agency aren’t necessarily going to be the same – as that of the father and may well be out-of-step with what an objective observer would say would be the necessary level of supervision.
18.As to the cost, there’s no background evidence about it and it’s not a finite, nil sum issue. The mother says that she is receiving some support from members of her family. One would be careful before giving away important supervision arrangements on the basis that there were problems with the payment. You could imagine the court would be criticised in those circumstances.
19.There is no evidence about what efforts have been made to secure funds on a short-term basis by a loan, by advance, by whatever. In those circumstances I do not consider that I should revisit the supervision arrangements on the basis of cost or the adequacy of the physical environment or the suitability of the [C] Centre.
We have not been referred to any error of fact or of discretion, or of principle in any of the paragraphs set out above. The trial Judge may have made other findings, or reached other conclusions, but that is not the test. The findings, and conclusions based upon them of the trial Judge have not been shown to have been other than reasonably open to his Honour in the context of an interlocutory hearing.
We accordingly do not find any of the mother’s complaints to have been established. The mother’s appeals accordingly fail. Nothing emerging from the further evidence sought to be filed in the mother’s appeals changes our conclusions with respect to the appeals.
the cross-appeal
The cross-appeal agitated two complaints. The first was that the trial Judge erroneously failed to make an order for sole parental responsibility in favour of the father on an interim basis.
It was conceded by Counsel for the father that:
1.Neither the Mother’s Application for interim parenting Orders (AB1/72) nor the interim Orders sought by the Father in his Response (the amended interim Orders sought by the Father being contained in his Summary of Argument – 22 November 2011 – at AB1/649) sought Orders in relation to parental responsibility. [Respondent/Cross Appellant Summary of Argument: 10, par 1].
Not surprisingly in those circumstances, at the completion of the hearing before the trial Judge, Counsel for the father, who was the same Counsel as appeared for the father before this Court, made no submission to the trial Judge in support of an order for sole parental responsibility being made in the father’s favour pending further order of the Court.
In the circumstances, as acknowledged by Counsel for the father, the trial Judge would have denied the mother natural justice had he made an order for sole parental responsibility in favour of the father. It is unnecessary to say more about this complaint.
As the written outline of argument on behalf of the father, and the oral submissions of his Counsel on the hearing of the cross-appeal make clear, the father’s real complaint before this Court relates to the discharge of the order appointing Dr W as the court appointed expert and the replacement of him by Dr Q.
It should be recorded, clearly and unequivocally, that no part of this issue, or the trial Judge’s order, involves any express or implied finding adverse to the skill, experience or qualifications of Dr W. Nor does it involve any such findings in relation to Dr W’s methodology. Dr W is a well known and respected psychiatrist whose evidence has assisted the Court in determining children’s best interests for several decades.
As is not in doubt, the discharge of the order appointing Dr W as the court appointed expert does not and will not mean that Dr W will not give evidence. Counsel for the ICL confirmed his intention to call Dr W to give evidence at trial. Any challenges to the admissibility of Dr W’s opinion evidence and/or the weight appropriate to be given to it if it is admitted into evidence will then be able to be raised, and determined by the trial Judge.
As suggested to Counsel for the father, the intention of the ICL to call Dr W to give evidence as a witness in his case at trial means that Counsel for the father will be able to cross-examine a witness who he perceives to be favourable to his client’s case, both with respect to any challenge to the admissibility of Dr W’s evidence or, if admitted, its substance.
The crux of the complaint on behalf of the father with respect to the substitution of Dr Q for Dr W, as Counsel’s written outline and oral submissions confirm, was that the sole basis upon which his Honour so ordered was that the mother objected to Dr W’s continuing as the court appointed expert. Notwithstanding that contention, it was submitted that the trial Judge’s reasons for removing Dr W and appointing Dr Q were inadequately revealed.
The trial Judge commenced his consideration of this issue by recording:
50.…. The mother’s attack is on all grounds. She says that he is not an expert in the sense of Makita & Sprowles, that he is not an expert in the area of expertise which is, in this case, child abuse and, therefore, he is not qualified to express an opinion. She says that his opinion has been contaminated by errors of fact and there have been private communications between the father and the expert and that the inferences that he has made from things that he has observed are impermissible inferences.
His Honour also recorded:
52.I am not satisfied on the basis of the assertions that the mother has made. They contradict themselves to some extent. The mother identified, for example, Dr [W] giving a paper in relation to other peoples’ research in respect to child abuse evidence in child abuse cases. I will not make a finding that Dr [W] was not an appropriate expert. He was appointed by Watts J and that decision was not challenged. I am not free just to make a different decision. Dr [W] falls within a category of persons qualified to give this evidence.
53.That isn’t the end of the inquiry. Because the single expert holds such an important place, it is not an irrelevant consideration, it seems to me, that one party has absolutely no confidence in that expert for whatever reason. Now, as I said, Dr [W] i [sic] not on his own in this case. The mother, I think, doesn’t have confidence in any or most of the agencies that I’ve identified. Watts J was asked to disqualify himself recently. But it seems to me, at the end of the day, without any disrespect to Dr [W], that it will be in [the child’s] best interests if another expert is appointed.
The trial Judge explored the implications of so concluding and recorded:
54.Happily, that doesn’t make much difference to the financial cost of the proceedings. Happily it doesn’t make much of a difference in terms of the systems abuse concerns in respect of [the child]. His life has been devastated over the last few years. If he’s involved with a new expert, not having any significant involvement with Dr [W], no harm is done, or no additional harm is done. There will be some inefficiencies in that process, but Dr [Q] has given an estimate in relation to cost of a similar order to Dr [W], for example.
55.Nothing is said against Dr [W]. The father’s submission would be that a psychiatrist associated with [AC] - Dr [T] would be an appropriate alternative. The ICL has discovered that Dr [T], is not available. It seems to me that in circumstances where there is no criticism from about her appointment; no suggestion that Dr [Q] is not an expert qualified to give an opinion in these circumstances, that there is a greater likelihood that the parties might be assisted by Dr [Q’s] advice/opinion. There are less likely to be further interlocutory issues in relation to the expert’s opinion, and less opportunity for complaint that the ultimate decision was contaminated by reference to the expert opinion.
We accept the submission of Counsel for the father that, in isolation, the fact that a party to proceedings has an unfounded lack of confidence in a court appointed expert would not normally be a basis for the removal of such an expert, and that doing so potentially creates a very undesirable precedent. If that were the only basis upon which the trial Judge concluded as he did with respect to Dr W, of whom, properly, no adverse finding whatsoever was made, appellate intervention would be enlivened. We are not persuaded however that the trial Judge made the order he did solely on the basis asserted on behalf of the father.
As is not in doubt, Dr W’s reports were completed prior to June 2008. Since that time, as the trial Judge accurately recorded, many significant events have occurred in the life of the child, both in the Netherlands and in Australia. The child’s relationships with each of his parents have undergone significant disruption and changes during that period, quite apart from the fact that the child is himself four years older than he was at the time of Dr W’s earlier reports.
As is not in doubt, whatever opinions Dr W formed in relation to the likelihood or otherwise of abuse, they could not be, and were not advanced by him as conclusive of the issue. That was, and remains, an issue for the trier of fact: the Court. Moreover, as the High Court has made clear, although an important and potentially decisive issue in a case such as this appears to be, the question of sexual abuse is not necessarily determinative of parenting proceedings (see M v M (supra) and B v B (supra)).
On any view of it, as Counsel for the father ultimately appeared to concede, the child, and each of his parents will inevitably have to re-engage with appropriate professionals. Given the issues which have been raised in the proceedings, we cannot accept that the trial Judge erred in concluding that it is preferable that those professionals have expertise in child psychiatry. His Honour could have reached other conclusions, but that it not the test.
Albeit by way of alternate submission, Counsel for the father suggested an expert other than Dr Q. Nothing to which we have been referred establishes either any asserted or other basis for rejecting the appointment of Dr Q. The issue is whether Dr W should have been removed.
As the trial Judge correctly recorded, and particularly in a case which has the unusual features which this case undoubtedly has, the fact that a party had, prior to trial, lost all confidence in the court appointed expert was not “an irrelevant consideration” (par 53) in an application to replace such expert. The implications of doing so, or not doing so, in terms of the interests of the child, delay, and cost, to which his Honour referred, were also relevant to the exercise of his discretion.
Whilst the trial Judge could have concluded otherwise, the matters to which he referred in the paragraphs of his reasons which we have recorded above provide adequate, logical, and factual support for his conclusion. Whilst so doing was unusual, and not a course which would or should be regularly or lightly embraced, in the particular circumstances of this case, as identified by him, we are not persuaded that his Honour erred in substituting Dr Q for Dr W.
In his affidavit sworn on 31 January 2012, in support of the further evidence application in aid of his Notice of Cross-Appeal, the father deposed, or perhaps more accurately, submitted:
4.At most, all that is needed is an updated Report and that can be done, if needed, by one of the Family Court’s Family Consultants. My son should not have to attend upon another medical practitioner to start this investigation, as wanted by the Respondent, all over again.
5.Since this case started in December 2007, my son has been subjected to extensive investigations; intensive psychiatric and psychological assessments; lengthy periods of observation by mental health professionals, and on-going professional counselling by psychiatrists; psychologists; child welfare agencies and related mental health professional and government officials on both sides of the globe. All of these people in Australia are required by law to report any concerns they might have about any form of abuse or neglect. Annexed hereto and marked with the letter “A” is a list of the practitioners and organisations who have assessed [the child].
6.A diagnosis of [the child] has recently been made by the Medical Director at … a children’s psychiatric unit …. The Medical Director is a fully-qualified Child and Family Psychiatrist who has been closely monitoring my son since June 2011. I have obtained a copy of that diagnosis and I now annex hereto and mark “B” a copy of the diagnosis.
7.I am no longer of the view that any further assessments of [the child] are in his best interests. I am of the view that the continuation of another, now new to the case, Court Expert amounts to abuse of my son. If another Report is still required by this Court before it can make a parenting decision then a Family Consultant’s report is sufficient or in the alternate Dr [W] ought to be asked to give a brief update only to his Report, if that is necessary. (Original emphasis).
The diagnosis, referred to in annexure “B” of the father’s affidavit sworn 31 January 2012, was provided by a Dr G, Medical Director at the child and adolescent mental health service to a Ms J, Principal at H Public School by letter dated 5 December 2011. Dr G diagnosed the child with “Oppositional Defiant Disorder, Anxiety disorder and Attachment disorder” and suggested that she “strongly support[s] the provision of additional resources to assist [the child] in the school environment”. This letter, and the other annexures to the father’s affidavit which consisted of a list of the practitioners and organisations who have assessed the child (history of interventions), and information about the child and adolescent mental health service Residential Program, were sought to be adduced as further evidence to establish that the order to replace the court appointed expert was erroneous.
Counsel for the father submitted that:
1.The psychiatric diagnosis of the child was not available at the Trial and could not using reasonable diligence have been discoverable or made available at that time (the diagnosis in a letter dated 5 December 2011 and the Orders were made 22 November 2011). It is a diagnosis by the child’s treating psychiatrist. In deciding this Cross-Appeal – whether or not this child should have further psychiatric interventions by other psychiatrists for the purposes of these proceedings - it would fail to serve the best interests of the child to reject such evidence.
2.The undisputed evidence of the history of the interventions upon this child will be a relevant consideration to the Full Court in determining the Cross-Appellant’s argument, in essence, which is that this child, as a result of Orders for further psychiatric interventions, is now being subject to abuse – systems abuse of this child. [Quoted passage from CDJ v VAJ (1998) 197 CLR 172 omitted].
3.A consideration of the further evidence of the Father will, it is respectfully submitted, lead to the conclusion that this child’s best interests were not served by the Orders appointing a second Single Expert Witness and that the matter now warrants a Final Hearing with the Expert evidence as it currently stands and possibly with the benefit of nothing more than a short Report by a Family Consultant from within the Court, not dealing with psychiatric matters or sexual abuse matters. What is respectfully submitted is needed, like in Re: W and W (see below) is an assessment of the relationship between the child and his parents, something a Family Court Consultant can do, with the added benefits of lessening the financial burden on the parents as they prepare for Final Hearing.
Nothing raised by the submissions, we have set out above, or the further evidence sought to be adduced on behalf of the father establishes that the order of the trial Judge with respect to the court appointed expert was erroneous. The submissions to which we have referred appear somewhat contradictory. Matters relied upon to impugn Dr W’s removal, and the consequences of doing so, were nevertheless relied upon in support of the application to adduce the further evidence which the father had procured, and wished to rely upon.
Whilst the Court strives to minimise the extent to which children are interviewed, or observed by appropriately qualified health professionals for the purpose of parenting proceedings, each case turns upon its own facts and circumstances. The circumstances of this case are, thankfully, unusual. The child the subject of these proceedings has been “under the microscope” for some years. It is not in doubt that he will continue to be for some time. The issue is not whether the child will be further interviewed and observed, but by whom. On balance, the substitution of Dr Q for Dr W is likely to reduce rather than increase the potential for excessive or stressful interviewing of the child, for reasons which are readily apparent, to which the trial Judge alluded. So doing will not deny the father the opportunity to seek to rely upon the evidence of Dr W if he considers that to be appropriate.
Counsel for the father also complained that the terms of reference for Dr Q’s report were erroneous, notwithstanding that, as Counsel for the father conceded, they were, save in one respect, identical or almost identical to the orders made on 29 February 2008 appointing Dr W as a single expert witness.
As is not in doubt, the order of the trial Judge (order 7 made on 22 November 2011) replicated most of the provisions of s 60CC of the Act. Order 7(k) provided:
7.…
k)your opinion concerning the allegations of sexual abuse of the child as alleged by the mother;
The order was, sensibly, conceded by Counsel for the father to reproduce the substance of order 7.4 and 7.5 of the orders made 29 February 2008.
The provisions of Order 7(l) made by the trial Judge, which provided:
7.…
l)to consider with whom the child shall live with and spend time with factoring in the following:
i.if the mother is not sentenced to a term of imprisonment;
ii.if the mother is sentenced to a term of imprisonment; and
iii.if sentenced on the mother’s release
were reasonable, if not necessary, having regard to the evidence that the mother was awaiting trial as a result of her removal and/or retention of the child the child in the Netherlands from 2008 – 2010.
We are thus not persuaded that any provision in the trial Judge’s order was other than reasonable.
It ought not to be forgotten that Dr Q was “requested” by the trial Judge to consider the various matters referred to in Order 7. Dr Q was thus not obliged to address the particular matters to which the order referred her. Nor was Dr Q prevented from exploring any issue not referred to in the order which she considered was relevant to the child’s best interests. We thus find this challenge lacks merit.
The cross-appeal will be dismissed.
costs
Counsel for the ICL sought an order for costs of the appeals and cross-appeal against each of the mother and father. The quantum of the costs sought by Counsel for the ICL was not disputed.
Counsel for the mother opposed the making of any order on the basis that the mother was impecunious, having no assets, and being dependent upon social security benefits. Those assertions were not seriously challenged.
Counsel for the father conceded that, provided both parties were ordered to and did pay the ICL’s costs, the sum sought by Counsel for the ICL was reasonable. However, it was submitted, in reliance upon s 117(2A)(a) on behalf of the father that to order him to pay half the ICL’s costs in circumstances where the mother would not make any payment in that regard would be inappropriate, particularly having regard to the costs which the father had already paid with respect to expert opinion evidence and would have to pay in the future.
Properly in our view, beyond recording that he was instructed to seek costs, Counsel for the ICL refrained from making any submissions in response to those of Counsel for the father.
With respect to the parties and those advising them, and as Counsel for the ICL suggested in his outline of argument, it is regrettable that the parties have not focussed on progressing towards the final hearing of their parenting dispute.
The appeals and cross-appeal to this Court were both wholly unsuccessful. In the circumstances to which we have referred, however we are not of the opinion that an order for costs should be made.
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 (Coleman, May & Rees JJ) delivered on 13 June 2012.
Associate:
Date: 13.06.2012
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