TAB & RGP

[2006] FamCA 38

[2006] FamCA 38

JFTABRGP

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 44 of 2005
File No. NCM 889 of 2004

IN THE MATTER OF:

TAB

Appellant/Mother

- and -

RGP

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:  Faulks DCJ, Finn and Coleman JJ
DATE OF HEARING:         28^th day of July 2005
DATE OF JUDGMENT:     10^th day of February 2006

APPEARANCES:                 Mr Maiden of Counsel, (instructed by Kim Monnox and Associates, 27a Murray Street, Hamilton NSW  2303) appeared on behalf of the appellant mother.

Ms Faloon of Counsel, (instructed by Brett Wiggins and Associates, 19 Mitchell Drive, Greenhills NSW  2323) appeared on behalf of the respondent father.

Mr Stewart of Counsel, (instructed by Legal Aid Newcastle, 51-55 Bolton Street, Newcastle NSW  2300) appeared on behalf of the child.

Name of Appeal  TAB & RGP
Appeal Number  EA 44/2005
Date of Appeal hearing  28^th day of July 2005
Date of Judgment  10^th day of February 2006
Coram  Faulks DCJ, Finn, Coleman JJ

Catchwords:   Appeal against orders of Federal Magistrate changing residence of child from mother to father.

Federal Magistrate erred in refusing to allow into evidence report of psychiatrist expressing opinions with respect to child’s Separation Anxiety Disorder and residence dispute – rejection of evidence not justified on grounds of prolonging proceedings – Federal Magistrate misconceived nature and potential significance of evidence, which evidence may have resulted in a different outcome of proceedings. 

Appeal allowed.

Matter remitted to Federal Magistrates Court for re-hearing to enable parties to adduce further evidence prior to re-exercise of discretion –– Allesch v Maunz (2000) 203 CLR 172 followed.

Appeal allowed.
Costs certificates for appeal and re-hearing.

1. By Amended Notice of Appeal filed 13 July 2005 the mother appealed against orders made by Federal Magistrate Coakes with respect to the child of her former relationship with the father in contested proceedings in relation to residence of the said child. 

2. The learned Federal Magistrate made orders on 22 March 2005, after hearing evidence and submissions on 1, 2 and 23 December 2004, 1 February 2005 and 21 and 22 March 2005.  The effect of his Honour’s orders was to grant residence of the child, who had resided with the mother since the separation of the parties in January 2000, to the father with contact to the mother.  On 5 July 2005 the learned Federal Magistrate published reasons for his decision of 22 March 2005. 

BACKGROUND FACTS

1. The parties cohabitated from 1995 to January 2000.  The child was the only child of the relationship and was born on 14 July 1996.  Subsequent to the separation of the parties, and pursuant to orders of the Family Court made in Newcastle on 15 November 2000, the child resided with the mother and had contact with the father.  Thereafter, until 2004, there were no proceedings between the parties with respect to residence or contact of the child. 

2. On 16 April 2004 the mother filed an application in the Federal Magistrates Court  seeking the temporary suspension of the contact orders of 15 November 2000 to enable the child to have counselling and enable the appointment of a Child Representative.  The father filed a response to such application on 23 June 2004 in which he sought that contact between himself and the child be defined in the terms there set forth.  On 1 November 2004, the father amended his application to seek residence of the child. 

3. On 21 July 2004 the learned Federal Magistrate ordered the preparation of a Family Report.  There was received into evidence by him at that time, with the consent of the parties, the report of a psychiatrist, Dr S dated 18 May 2004.  Orders for interim contact were also made on that day. 

4. Contact in accordance with Court orders commenced on 26 August 2004 and continued until December 2004.  There had not been contact between March 2004 and August 2004. 

5. The proceedings in relation to residence, which had originally been listed for a one day hearing with respect to contact, commenced on 1 December 2004.  The Family Report ordered on 21 July 2004 in relation to the residence dispute and dated 29 November 2004, issued on 30 November 2004. 

6. On 23 December 2004, the third day of the hearing of the proceedings before him, the learned Federal Magistrate refused to receive into evidence a further report, dated 17 December 2004, of Dr S.  Counsel for the mother sought to tender Dr S’s report, a course not opposed by counsel for the child but opposed by counsel for the father.

7. On 22 March 2005 the learned Federal Magistrate made the residence order in favour of the father which is the subject of this appeal and on the same day refused to stay that order.  An appeal against the refusal of such stay was heard on 24 June 2005.  For the reasons given on 27 June 2005 such appeal was dismissed.

THE FEDERAL MAGISTRATE’S JUDGMENT

10.In his judgment, prepared subsequent to receipt of the mother’s Notice of Appeal, the learned Federal Magistrate provided 88 pages (415 paragraphs) of reasons for his decision of 22 March 2005.  For reasons which will become apparent, it is preferable that a review of such reasons for judgment focus on the expert evidence before the learned Federal Magistrate and the evidence of Dr S which he rejected on 23 December 2004.

11.Having accurately recorded the background to the proceedings and identified the issues before him, the learned Federal Magistrate identified “The Evidence” before him and stated “The relevant law” in relation to the proceedings.  A “Synopsis” of the case advanced by each party was provided, the accuracy of which has not been challenged.  His Honour then thoroughly reviewed the evidence of each of the parties. 

12.In the course of his review of the evidence of the mother, a number of critical findings were recorded about the matter (particularly in paragraphs 50, 51, 59, 61, 66, 84, 88, 115). 

13.In addition to those findings the learned Federal Magistrate observed that the child’s maternal grandmother was:

… unable to answer quite straight forward questions and I concluded that there were aspects of her evidence which are unreliable.  I was left with the distinct impression that she was doing the best to help her daughter . (Judgment, paragraph 159)

14.His Honour concluded:

The significance of this evidence is that I find, on the balance of probabilities, that the maternal grandmother does nothing to promote the child’s relationship with her Father. On the evidence, I find that the child is particularly close to her Maternal Grandmother. It seems to me, and I so find, that the combination of the Mother and the Maternal Grandmother together provide a formidable barrier to the child feeling that she can say freely to either of them anything at all about her relationship with and those aspects of her time with her Father which she enjoys. From the evidence of the Mother and the Grandmother, it seems that the child only tells them of her complaints. In all probability, the child perceives those are the matters that her Mother and her Maternal Grandmother give particular attention. (Judgment, paragraph 177) 

15.The maternal grandfather gave evidence, his Honour concluding that he “did his best to answer the questions asked of him and I accept his evidence”.  Relevantly, the maternal grandfather’s evidence included his:

… opinion that the child will benefit if she has an ongoing relationship with her Father and that he can provide her with a male perspective. The maternal grandfather said that the Father obviously loves his daughter and that although the child has made some complaints about his driving at times he would hope that he would try and keep her safe. He found the Father's tenacity a factor which would provide a positive role model for the child. Whilst acknowledging that he had not had a great deal of contact with the Father since the parties had separated, he said the Father had been positive in the way he had interacted with the child when playing and in caring for her. He believed such conduct had continued. (Judgment, paragraph 192) 

16.The evidence of Ms B, who had given the child “relaxation therapy” from March 2004, was briefly referred to by his Honour (paragraph 195). 

17.The evidence of the father was reviewed by his Honour who noted that:

Under cross examination by Ms Burns, Counsel for the Mother the Father agreed that in the period leading up to March 2004 he had more contact than the orders provided and there was a degree of flexibility in arranging contact. After a time arrangements for contact were made between the Father and the child with the Mother's subsequent approval. If the Father had not telephoned the child to make arrangements then she would telephone him. (Judgment, paragraph 199)

18.The learned Federal Magistrate recorded:

The Father said the Mother had done an exceptional job in so far as the child’s physical health was concerned and although there were a few things that he did not agree with she generally had done a very good job. The Father could not make any comment as to the Mother's care of the child’s mental and emotional development. (Judgment, paragraph 225)

19.He further recorded:

The Father agreed later during the course of his cross examination that his negative views of the Mother could have been conveyed to the child from his behaviour and body language.

As to the sudden change in the child’s relationship with the Father in March 2004 the Father said he had considered that it was possible it was related to the child’s fear of him. (Judgment, paragraphs 226-7)

20.His Honour found the father to be “evasive in relation to some of the questions asked of him in relation to his income” (paragraph 233), a number of illustrations in that regard being provided.  The learned Federal Magistrate referred to evidence of the father in which he:

… acknowledged that such a change [of residence] for the child would be extremely distressing for her and that she has a close and strong attachment to her Mother and Maternal Grandparents. (Judgment, paragraph 252) 

21.Numerous positive findings in relation to the father were recorded (see paragraphs 202, 214).

22.The paternal grandmother gave evidence and was cross-examined, the substance of which the learned Federal Magistrate clearly accepted as no negative findings were recorded by him in that regard.

23.Reference was made to the Family Report prepared by a “Child and Family Counsellor” Ms T.  As is clear from a number of passages in his judgment, his Honour accepted Ms T’s evidence both with respect to factual matters therein referred to and opinions expressed by her.  Ms T’s report was generally regarded by his Honour as unfavourable to the mother, as emerges from a number of passages of his judgment, such as paragraph 304:

Ms T concludes that the child is parentified in her relationship with her Mother and concludes that the Mother would not be able to rectify this, in the near future but it is possible it could come about following long term therapy and counselling for her.

and, although less so, somewhat critical of the father, as paragraph 307 illustrates:

As to the Father, Ms T concludes the Father was naïve as to protection of the child when she was young in relation to exposure to an adult neighbour who may have been involved in paedophilia. Ms T suggests that the Father has a more realistic attitude in relation to family members so far as concerns physical abuse of a Child. Ms T concluded that it was unlikely the Father had been physically abusive to the child, as claimed by the Mother. (Judgment, paragraph 307)

24.In her report Ms T expressed:

… her opinion that the child suffers from a genuine anxiety disorder which has as its focus her relationship with the Father but that it is evident from the six occasions of supervised contact that this anxiety does not manifest itself when the child is in direct and physical contact with her Father. The anxiety returns upon physically leaving the Father and returning to the Mother's care and escalates between occasions of contact with the Father. (Judgment, paragraph 302)

25.It was apparent (paragraph 275) that Ms T had, prior to completing her report, seen Dr S’s report of 18 May 2004.  There is no issue that Ms T accepted Dr S’s diagnosis, as a number of references in his Honour’s consideration of “The oral evidence of Ms T” confirm. 

26.In the course of her oral evidence, Ms T expressed her opinion as to the likely psychological implications of the child’s residence being changed or not changed (see paragraphs 312, 313, 314, 315).  The learned Federal Magistrate recorded the concession of Ms T that a change of residence to the father “may cause the child some distress [but] it may not cause any long term damage as it would for a younger Child”, the child being “beyond the age of long term damage due to attachment theory” (paragraph 331). 

27.The learned Federal Magistrate referred to the affidavit of Dr S of 22 December 2004 to which was attached Dr S’s report of 17 December 2004 and his “refusal to admit it into evidence”.  His Honour made no express reference to Dr S’s report of 18 May 2004 which was in evidence before him with the consent of all parties.

28.His Honour referred to the application of counsel then appearing for the mother to file the affidavit of Dr S of 22 December 2004 and attached report, and recorded:

At the conclusion of evidence on the third day, and after fixing a further day for hearing, I heard submissions from Ms O’Rourke in relation to Doctor S. Ms O’Rourke did not object to the admission of the affidavit and required the Doctor for cross-examination. Ms O’Rourke said that the Child Representative’s position was that it would be a matter of weight to be given to Doctor S’s opinion taking into account he had not interviewed the Father or observed the Father and the child together and had not interviewed other significant family members. Ms O’Rourke was in favour of Doctor S being given a copy of the Family Report. Mr Sundstrom maintained his objection but indicated that if the Doctor’s affidavit was to be admitted then the Doctor should read the Family Report and be invited to provide a fresh report based upon his views on having read the Family Report. (Judgment, paragraph 342)

29.His Honour accepted the submission of counsel then appearing for the father that the doctor’s opinion “would have no value at all in assisting the Court” and to the fact that “the child no longer sees Doctor S” (paragraph 344).  Having referred to the circumstances surrounding the Family Report ordered on 21 July 2004, he  noted that “No request had been made of the Court either on 1 December or 2 December 2004 or at any stage prior to the third day of hearing on 23 December 2004 to release a copy of the Family Report to Doctor S” and recorded that:

The Court was thus placed in a position, at the end of the third day of hearing of being faced with the possibility of Doctor S’s affidavit being admitted into evidence and a further delay whilst Doctor S considered the Family Report and then prepared a further report himself. (Judgment, paragraph 348)

30.His Honour further recorded:

The fact remained that Doctor S had not seen the child since 18 May 2004. He was not her current treating psychiatrist and it was not proposed on the evidence that he be a continuing treating consultant psychiatrist for her. In fact, the Mother during her evidence indicated that Doctor S had told her that he could assist no further. (Judgment, paragraph 349)

31.The learned Federal Magistrate thus concluded:

It seemed to me that the weight of the evidence which he may be able to give was limited as it would be confined only to a commentary from him on the Family Report. The fact remained, which was significant, that he had not seen the Father and had not seen the Child with the Father and there was no proposal for this to occur. Even if such proposal had been made I was not of the view that it was appropriate, and given the child’s apparent opposition to contact and the fact that orders had been made by consent on 2 December 2004 for the child and both parents to see Ms H. (Judgment, paragraph 350)

32.He further concluded

It seemed to me that if I were to allow Doctor S’s Affidavit into evidence with a further affidavit from the Doctor then it would have only prolonged the hearing unnecessarily. I was of the opinion that it was not in the child’s best interests to adopt this course when the weight that could be attached to Doctor S’s response to the Solicitors, it seems to me, would be limited.

I took the view that the opportunity for Doctor S to provide further evidence had been missed. I was of the opinion that it was not appropriate for the hearing time to be extended any further given that on the next occasion there would be evidence from the Counsellor occupying a day. If Doctor S was admitted as a witness then there was the real possibility of his evidence occupying at least another 2 or 3 hours or possibly more. (Judgment, paragraph 351-2)

33.Ultimately, the learned Federal Magistrate:

concluded that the necessity to conclude the hearing as soon as possible and the evidence before me far outweighed the benefit of any evidence which, in my view, Doctor S may have been able to give. I was conscious of the fact that Doctor S had prepared a report of 18 May and made a diagnosis. Further, Doctor S’s findings had been dealt with in considerable detail in the report by Ms T. (Judgment, paragraph 353)

34.The submissions made by counsel for the parties and the child were referred to and s 68F(2) of the Family Law Act 1975 (Cth) (“the Act”) was discussed in the light of the findings which his Honour had detailed earlier in his reasons. The child’s wishes were considered, the finding being that “the child does have a wish to see her Father as evidenced not only by her behaviour but also by her remarks to the Father during some of the sessions” of counselling and/or contact. The child was found to have a “close attachment to both her parents” (paragraph 374).

35.Under the heading “Likely effect of a change in the Child’s circumstances”, the learned Federal Magistrate concluded that there would “be a substantial change if the child resides with her Father” (paragraph 377), that the child’s schooling would not change if residence were to be changed (paragraph 378); that as “[t]he parents live in relatively close proximity” “the implementation of contact has not presented any difficulty in the past” (paragraph 379); that the mother “does not propose any change in the child’s present circumstances” (paragraph 380); and that the Court would “need to be satisfied that a change in the child’s place of residence will advance her best interests” (paragraph 381). 

36.The capacity of each parent was referred to by the learned Federal Magistrate who concluded:

On the other hand, there is evidence that the Mother is not able to meet the child’s emotional and intellectual needs so far as concerns the relationship with her Father and, to a lesser extent, the Paternal extended family. Further, I am not able to ignore the evidence of and the opinion expressed by Ms T as to the parentificaton of the child’s relationship with her Mother and the Mother's somewhat enmeshed relationship with the Maternal Grandparents. In this respect, it seems to me the Mother is denying the child an unfetted [sic] opportunity to develop emotionally. (Judgment, paragraph 387) 

37.His Honour further concluded:

I find on the evidence that the child has an emotional need to have a relationship with her Father and which the Mother has not been able to promote. I take into account the opinion of Ms T that the Mother, consciously or subconsciously supports and encourages the Child's fear and anxiety in relation to her Father. I find on the evidence that the child’s intellectual needs will be promoted by having a relationship with her Father. The Father gives evidence of the activities which they enjoy together some of which relate in particular to writing and music. I find on the evidence of the observation sessions with Ms T that the Father and the child relate well together and could well have a challenging relationship likely to promote and develop the child’s intellect. (Judgment, paragraph 388)

38.His Honour referred to the fact that:

I take into account that the child has not lived with her Father for any extended period since separation. The status quo as to her residence lies clearly with her Mother. The child has stayed overnight with her Father only during periods of weekend contact. There have been, as I understand the evidence, no extended periods of contact with the Father since separation. (Judgment, paragraph 395)

39.He concluded with respect to the father’s capacity that:

As to the Father's proposal that he live with his parents, and although the Paternal Grandfather has not been interviewed or given evidence in these proceedings, there is nothing in the whole of the evidence before me which leads me to the conclusion that it is inappropriate to consider the child residing with her Father for that reason alone. (Judgment, paragraph 397)

40.In the course of his consideration of “The attitude of the parents to the Child and responsibility of parenthood demonstrated by each of the parents”, the learned Federal Magistrate referred to the “anxiety identified by Doctor S in his report of 18 May 2004”, noting that “[w]hilst Ms T and Doctor S did not agree on the precise diagnosis, each of them found the child suffers from a genuine anxiety disorder” (paragraph 403). 

41.His Honour criticised the mother, concluding that:

It seems to me that the Mother, to meet her own needs first, was reluctant to put into place the recommendations made by both Ms B and Doctor S. This is consistent with the Mother’s inability to obtain expert assistance for the child. Her reluctance to do so is part of the inherent problem the Mother faces in being able to bring herself to permit the child to have a relationship with her Father. (Judgment, paragraph 405)

42.He was also critical of the father, recording:

It seems to me the Father can be criticised for having done very little to put measures into place himself to obtain psychological assistance in the form of appropriate therapeutic counselling when he became aware that this was recommended. It was not enough merely to speak to the school principal at the end of March and suggest counselling by the school Counsellor, which ultimately the Mother declined. It seems to me there was some lack of insight on the part of the Father focusing on the Mother being the cause of contact not occurring rather than considering the wider possibilities.

As to the Father, it is quite possible that he has, at times, given priority to other events rather than having consistent contact with his daughter. (Judgment, paragraph 406-7)

43.Under the heading “Conclusion”, the learned Federal Magistrate suggested, having determined that “the best interests of the child are met by an order that she live with her Father and have contact with the Mother”, that:

I take into account in particular the evidence of Ms T as to the effects, both short term and long term for the child if she remains living with her Mother and if she lives with her Father. (Judgment, paragraph 413)

44.He further said:

I am satisfied that if I were not to make such an order, which I have no doubt will cause the Mother significant distress, the possibility of the child being able to resume a relationship with her Father and benefit from such relationship will possibly “be lost”, or, at the very least, be very seriously impaired. (Judgment, paragraph 414)

GROUNDS OF APPEAL

45.Whilst the mother’s Amended Notice of Appeal contained 51 grounds, her counsel sensibly argued the grounds in a number of groups, some of which were not pursued at the hearing. 

46.For reasons which will become apparent, it is convenient to deal first with the challenge to the learned Federal Magistrate’s refusal to accept into evidence the affidavit of Dr S of 22 December 2004 to which was attached the doctor’s report of 17 December 2004.  Although the challenge finds expression in a number of the grounds contained in the mother’s Amended Notice of Appeal, it is most squarely and clearly raised in grounds 9, 11, 16, 17 and 20.  Those grounds provided:

9.The Order is manifestly unjust as the hearing did not include evidence by Dr S sworn 22 December 2004. 

…

11.The Order is manifestly unjust as the matters raised by Dr S in the affidavit sworn 22 December 2004 are of significant importance and central to the issue as to where the child should live.

…

16.It was a breach of procedural fairness not to admit the report of Dr S.

17.It was not in the interests of the child to refuse to admit the report of Dr S.

…

20.The Federal Magistrate erred in finding that the report of Dr S of 17 December 2004 was of no value or irrelevant, in that the report was an opinion of a child psychiatrist, an appropriately qualified person, and he made a recommendation that the child continue to reside with the mother and for treatment of the child’s separation anxiety disorder.

47.Counsel for the mother relied upon the fact that on 21 July 2004 and in the trial of the proceedings which commenced on 1 December 2004, the learned Federal Magistrate had been invited to receive Dr S’s report of 18 May 2004.  It was submitted correctly, that the diagnosis therein contained was never challenged by or on behalf of any party or the author of the Family Report, Ms T.  The thrust of the submission on behalf of the mother was that “it was critical to this case” that Dr S’s “evidence be allowed to be heard as there was no other person qualified to give the expert evidence required as to the risk to the child of the change from mother to father” (Appellant’s Submissions, paragraph 23).  In his oral submissions, counsel for the mother conceded that, at trial, there had been no challenge to the qualifications of Ms T to give the evidence she gave or to the foundation for any evidence which she had given. 

48.It was submitted by counsel for the mother that the report of 18 May 2004 having been accepted, as had the diagnosis therein referred to, Dr S’s later report should have been received into evidence as it was capable of being probative of a major issue in the proceedings, namely the likely impact upon the child of any order for a change of her residence. It was submitted that, independent of any challenge to the qualifications of the Court Counsellor to express opinions in that regard, Dr S undoubtedly was thus qualified, and his opinions had at all times been accepted by the Court Counsellor.  

49.Counsel for the mother asserted that the sequence of events, whereby the proceedings changed from being a dispute with respect to contact to a dispute with respect to residence and contact after the trial of the contact dispute had been set, reinforced his contention that the rejection of Dr S’s second report was erroneous.

50.Counsel reminded the Court that the father had first amended his application to seek residence on 1 November 2004 and that the counsellor’s report did not issue until a few days prior to the trial commencing.  As the transcript confirms, the mother had little opportunity to consider the report before the trial began.It was fairly conceded by learned Counsel for the mother that no other natural justice point raised on behalf of the mother could properly be regarded as having substance, but that to deny the mother the opportunity to rely upon the second report of Dr S, whatever weight it might ultimately have been given, constituted a denial of natural justice to the mother.  As the proceedings continued for another three days, the learned Federal Magistrate’s reliance upon the potential for the proceedings to be prolonged if the report was to be admitted was submitted to have been an extraneous consideration, or one which did not justify denying the mother the chance to tender Dr S’s second report in evidence.

51.On behalf of the father, in oral submissions, it was submitted that the “real issue in the case” was the “anxiety disorder of the child” which had been “well understood by the Federal Magistrate”.  It was submitted on behalf of the father that:

His Honour’s concern, as at 23 December 2004, was that it was not in the child’s best interests for the hearing to be unnecessarily prolonged. Allowing in Dr S’s affidavit, and what His Honour surmised would be a further affidavit of Dr S “can only prolong the hearing…and is not in the child’s best interests when the weight that can be attached to it, it would seem in any event, is limited. (Respondent’s Submissions, page 8) 

52.It was further submitted that:

At no time was there any challenge to Dr S’s diagnosis of the child’s condition. The Family Report writer was aware of the diagnosis. His Honour in making the orders that he did was mindful of the effect on the child of separation from the mother. He said in his reasons: “…with the child living with the Father and having no contact with the Mother for a period of time Ms T agreed that the Child would be likely to go through a severe grief reaction akin to a death. (Respondent’s Submissions, page 8)

53.It was conceded that:

There was no issue that the child suffered from an anxiety disorder. Ms T was not contending anything contrary to the report of Dr S dated18 May 2004. (Respondent’s Submissions, page 9)

54.It was thus submitted that the learned Federal Magistrate had not erred in refusing to allow the further report of Dr S into evidence and had not thereby denied the mother natural justice or otherwise erred.  Implicit in the submissions of counsel for the father was the proposition that, even if there had been a denial of natural justice, the report could not have changed the outcome of the proceedings, essentially on the basis that Ms T accepted, as did the learned Federal Magistrate, Dr S’s diagnosis of 18 May 2004.

55.At trial, counsel then appearing for the separate representative had not opposed the receipt into evidence of Dr S’s second report.  On the hearing of the mother’s appeal, counsel then appearing for the separate representative submitted that the learned Federal Magistrate had not erred in rejecting Dr S’s report and had given reasons which were “appropriate” and “open to him”.  It was submitted by counsel for the separate representative that:

… it is clear that both Dr S and Ms. T both agreed that the child suffered from an anxiety disorder.  It was the existence of the disorder itself that was of major concern to His Honour.  It is submitted that the findings made by His Honour concerning this issue were open to him on the evidence. (Child Representative’s Submissions, paragraph 36)

56.In the course of his oral submissions, counsel for the separate representative submitted that the weight which could have been given to Dr S’s second report justified the learned Federal Magistrate’s refusal to receive the report into evidence.  Counsel for the separate representative referred the Court to a number of passages in the transcript of evidence at trial in relation to Dr S’s second report in support of his contention that the learned Federal Magistrate’s refusal to receive such report into evidence constituted neither error nor a denial of natural justice.  Some of these passages we have referred to earlier.  Others are considered later in these reasons. 

57.As is apparent from the transcript (Appeal Book Volume 2, page 318), the “updating report” of Dr S was first raised by counsel then appearing for the mother on 23 December 2004.  Counsel then appearing for the father objected to the report’s being received into evidence.  In the course of his submissions, counsel for the father suggested that:

… apart from anything else, your Honour, apart from the fact that it’s late, apart from the fact that it doesn’t apply to section 177 of the Evidence Act in any way, and apart from the fact that it carries no probative weight, or including the fact that it carries no probative weight, your Honour, in my submission the document shouldn’t be received. (Transcript of 23 December 2004, page 132)

58.After further discussion the learned Federal Magistrate observed:

That’s right, but you see, if that was thought to be significant leave could have been sought for that purpose on the last occasion, and generally I take the view that where there’s a specialist involved, and Dr S has had some previous involvement, unless there’s opposition which persuades me to the contrary, a family report should be made available if it’s a matter of calling the expert. (Transcript of 23 December 2004, page 133)

59.Later, the learned Federal Magistrate observed:

But it may be that if the case doesn’t finish today for some reason – and I’ll hear submissions about this – but you’ll have the opportunity to send him a copy of the family report, and he can report upon that and he can do an affidavit in the ordinary way and give evidence. So I’ll send that back down to you at this stage. It’s only my preliminary view at this stage, Mr Sundstrom. (Transcript of 23 December 2004, page 134)

60.The fate of Dr S’s further report again arose for consideration subsequently, at the completion of the mother’s case.  The following exchange occurred between the learned Federal Magistrate and counsel then appearing for the separate representative:

FEDERAL MAGISTRATE: Ms Burns’ application is that such affidavit should be filed now and that Dr S be called as a witness in the mother’s case. To summarise it this way, Mr Sundstrom objects to such affidavit for two reasons; first, it’s filed very late and second, perhaps more importantly, it doesn’t refer to Dr S having had the opportunity to read the whole of the family report. It’s summarised in a sense in the letter from the mother’s instructing solicitors to the doctor and the doctor then expresses a view. I expressed a view this morning, subject to you looking at the documents, that in my view for that witness to be able to give evidence appropriately he would need to see the family report and the whole of the family report, not just a summary.

MS O’ROURKE: Yes, that would certainly date the issue of the weight to be given to his opinion that’s expresses [sic].

FEDERAL MAGISTRATE: That’s so. At this state I’m against – my preliminary view was I wouldn’t permit the late filing of such affidavit unless he had the opportunity of course to see the family report, that is. And Ms B wasn’t able to tell me this morning as to his availability. What I’m concerned about is the hearing being prolonged even further because the reality at this stage, I would’ve thought, is that we won’t get to Ms T today. Even if we do, her evidence won’t be completed and the hearing will then need to be adjourned part heard to a day in the new year. Now, I’m quite happy to leave the issue of Dr S with you over the lunch time period and you can tell me your informed view when you’ve had time to think about it at 2.15 if you wish.

MS O’ROURKE: Thank you, your Honour.

FEDERAL MAGISTRATE: Because there’s another issue as far as Dr S is concerned and that is that he hasn’t seen the father, as I understand it and nor the child with her father. And that seems to me to be an important consideration as to whether that evidence should be admitted. So, you may like to think about that, too, if you’d be so kind please, during the lunch time adjournment. (Transcript of 23 December 2004, page 190-1)

61.The matter did not again arise until the completion of proceedings on 23 December, by which time, as the transcript confirms, it was apparent that the case would not be completed that day.  The learned Federal Magistrate enquired of counsel for the separate representative “what’s the position now with Dr S?”, to which counsel for the separate representative replied:

It certainly would be preferable if Dr S read a copy of the report prior to being required for cross-examination. The child’s representative’s position is that Dr S’s opinion will be a matter of weight and, of course, taking into account the fact that he has not interviewed the father or observed the father and the child together, nor has he had the benefit of interviewing the other significant family members (indistinct). (Transcript of 23 December 2004, page 263)

62.The learned Federal Magistrate then asked “Is it your suggestion then that he should see the report and I should grant that leave?” to which counsel replied “Yes, it is.  It’s my suggestion”.  Counsel for the separate representative recorded that she did not “object to the admission of the affidavit” but would wish to cross-examine Dr S, potentially for “[h]alf an hour” (Transcript of 23 December 2004, page 264).  

63.Counsel for the father reiterated the basis of the opposition he had expressed earlier to the tender of the doctor’s report and reasserted that it was “unlikely to carry much weight”, adding that:

If your Honour is minded to do that, then in my view Dr S should be enticed to read the family report and provide a fresh report based on his views after having read that. Your Honour, a lot of matters that are raised in the family report are matters that haven’t come to his attention. (Transcript of 23 December 2004, page 264)

64.The learned Federal Magistrate then gave his reasons for refusing to allow Dr S’s report into evidence.  Not surprisingly, the formal reasons for refusing to allow the doctor’s second report into evidence of 5 July 2005 accord closely with the transcript in relation to the issue.

65.It is necessary to have regard to the terms of Dr S’s two reports.  Amongst other places, a copy of the report of 18 May 2004 is contained at Appeal Book Volume 4, pages 759-60.  That report was prepared one month after the mother had applied to suspend the father’s contact with the child.  It is apparent that Dr S, a lawfully qualified medical practitioner with specialist qualifications in psychiatry, had seen the child and the mother together.  Dr S had not seen the child on her own, for reasons which he stated in his report.

66.As is apparent from reading it, much of what appears in Dr S’s report was a report of statements made by the mother in the absence of the child.  Dr S’s opinion was that the child’s “diagnosis of Separation Anxiety Disorder is clear”.  Amongst Dr S’s reasons for not wishing to “subject her [the child] to individual questioning about her concerns” was that it would “probably need to be done again in the future” in the context of a “court-appointed child psychiatrist assessing the child, the mother, and the father”.

67.Dr S suggested:

The cause of Separation Anxiety Disorder is due to an interplay of temperament, attachment, and parenting style. The mother would have a protective parenting style because of her own childhood history of sexual abuse. It is possible that the father has a less emotional, more authoritarian style of parenting. The mother still has issues of unresolved fear from her relationship with the father, and even if she doesn’t speak a word of this to the child, the emotions are easy for a child to pick up and respond to, especially at this age.

68.He added:

The good news is that generally, there is a 96-percent remission rate for separation anxiety disorder, which is the highest for a childhood-onset anxiety disorder.

69.And suggested that:

An appropriate treatment would need to include the father accepting that his daughter has an anxiety disorder, namely separation anxiety disorder, which is actually the commonest emotional disorder of childhood, easily running in a 10%, up to 20% of children having it at some stage in their lives.

70.Dr S concluded his report by suggesting:

The parents must become comfortable with a structured approach that includes systematic, gradual desensitisation with appropriate praise and reward for her efforts. What this means is that the child should start spending time during the day with her father, with no expectation that she has to spend the night there. This should continue for gradually longer periods, increasing from an hour, to a couple of hours and so on. As much as it can be made fun and playful, the better. It is important to defer sleepovers for weeks or even a few months, until the child is comfortable with this day time access to her father. The mother should be supported in her own counselling, to help her talk through her concerns, and separate these from the child’s issues. If the parents cannot agree, then it is probably necessary for a professional parenting assessment and an individual assessment done of the child by a professional who has experience with working with the requirements of the Family Court. Dr R [phone number], would be my recommended choice of specialist in this regard.

71.It is common ground that Dr R has not been engaged in accordance with Dr S’s recommendation.

72.As recorded earlier, the first report was in evidence before the learned Federal Magistrate by consent of all parties.  Dr S was not required for cross-examination on the report.  The doctor’s diagnosis was accepted by the parties and by the Court Counsellor, Ms T.

73.In his second report, a copy of which appears at Appeal Book Volume 4, pages 956-7, Dr S, having been advised that residence of the child had become an issue, said:

I cannot see any clinical justification for an order making the child’s father, the residential parent, thereby forcing a separation from her mother. This is an extreme measure which would be a counter to the child’s attachment needs, which would be quite likely to be traumatic and potentially harmful to her, increasing her predisposition to clinical anxiety and depressive disorders in the future.

74.He further suggested:

…the only clinically justifiable approach to managing the child’s Separation Anxiety Disorder, would be a carefully managed systematic and gradual desensitisation program. A family court appointed child psychologist would be able to design such a program. I cannot see any indication from your recent correspondence that this has been attempted. the child obviously needs to have a relationship with her father, but this should be for increasing periods of time, not from no contact to residential contact in one step. If the mother is unable to face seeing the father, then an approved centre should be used for the supervised handover of child care.

75.It is apparent that Dr S, in his second report, expressed opinions in response to the changed nature of the dispute between the child’s parents. 

76.None of the submissions at trial, or to this Court, asserted that the evidence of Dr S, at least to the extent of the passages we have identified, was inadmissible, either on the basis of the absence of qualifications to express such opinions (see s 79 Evidence Act 1995 (Cth)) or the foundation for such opinions (see Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705). We do not understand the learned Federal Magistrate to have rejected Dr S’s evidence on the basis that it was inadmissible per se, but rather in the exercise of his discretion, in reliance upon the combination of factors to which he referred in his reasons. 

77.It is convenient to consider the reasons the learned Federal Magistrate gave for refusing to allow Dr S’s report into evidence. 

78.His Honour referred to the submission on behalf of the child representative that having received the report into evidence and heard Dr S cross-examined:

… it would be a matter of weight to be given to Doctor S’s opinion taking into account he had not interviewed the Father or observed the Father and the child together and had not interviewed other significant family members. (Judgment, paragraph 342) 

In our view, the submission on behalf of the child representative accurately reflects the position regarding the report had it been received into evidence. 

79.His Honour referred to the submission on behalf of the father that, if Dr S’s report:

… was to be admitted then the Doctor should read the Family Report and be invited to provide a fresh report based upon his views on having read the Family Report. (Judgment, paragraph 342)

80.The history of the proceedings in December was referred to, as was the fact that:

No request had been made of the Court either on 1 December or 2 December 2004 or at any stage prior to the third day of hearing on 23 December to release a copy of the Family Report to Doctor S. (Judgment, paragraph 347)

or for Dr S’s second report to be received into evidence.  Dr S’s report had only come into existence on 17 December 2004.  What had occurred or not occurred on 1 or 2 December 2004 was not relevant to the application to tender the report on 23 December.  His Honour considered that the receipt of Dr S’s affidavit into evidence raised “the possibility of … a further delay whilst Doctor S considered the Family Report and then prepared a further report himself”. 

81.As was apparent at the time the learned Federal Magistrate refused to allow Dr S’s second report into evidence, the proceedings were going to be delayed in any event.  The Court Counsellor had not been cross-examined at that time.  As is now known, the proceedings continued for another three days in 2005.  The learned Federal Magistrate concluded that “the opportunity for Doctor S to provide further evidence had been missed” and that it was “not appropriate for the hearing time to be extended any further given that on the next occasion there would be evidence from the Counsellor occupying a day” there being a “real possibility of his [Dr S’s] evidence occupying at least another 2 or 3 hours or possibly more”.  His Honour thus suggested that:

… the necessity to conclude the hearing as soon as possible and the evidence before me far outweighed the benefit of any evidence which, in my view, Doctor S may have been able to give. (Judgment, paragraph 353)

82.Given the sequence of events to which we have earlier referred, which resulted in the proceedings set down for trial in relation to contact becoming proceedings for residence, and the significance of a change of residence for the child, both having regard to Dr S’s diagnosis of her anxiety condition and the time during which she had resided with the mother and limited periods of time which she had spent with her father, the learned Federal Magistrate ought not in our view have rejected the evidence of Dr S by reference to the impact which receiving his evidence may have had upon the duration of the proceedings.  The stance of Counsel for the Separate Representative at the time reinforces this conclusion.  Whilst his Honour could not have known on 23 December 2004 how much longer the proceedings would continue, it is clear from the passages to which we have referred, that more days for the trial were required and the likelihood of the Court Counsellor’s evidence taking a day of hearing time was anticipated.  Even if there was the “possibility” that Dr S’s evidence would extend the proceedings by 2-3 hours, that did not in our view, given the issues in the proceedings before him, justify the learned Federal Magistrate’s rejection of Dr S’s report.  We would thus, to the extent that his Honour’s discretion was in reliance upon those matters, conclude that such reliance was misplaced (see Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146).

83.The learned Federal Magistrate clearly relied, in exercising his discretion to reject Dr S’s report, upon the weight which he perceived the doctor’s evidence might have had.  His Honour concluded that:

… the weight of the evidence which he may be able to give was limited as it would be confined only to a commentary from him on the Family Report. (Judgment, paragraph 350)

84.It was submitted by counsel for the mother that the learned Federal Magistrate misconceived the nature and potential significance of the evidence of Dr S.  We agree with that submission.  Dr S was a psychiatrist.  Ms T’s qualifications were:

… registered nurse trained at Children’s Hospital in Sydney. I hold a Bachelor Degree in Social Work with Honours. I have worked with the Family Court for three years now and prior to that worked in private practice with families and children and prior to that worked for the Department of Community Services undertaking risk assessments and placement options. (Transcript of 7 February 2005, page 321)

85.Ms T accepted Dr S’s diagnosis of the child’s anxiety disorder.  To the extent that reading the Family Report may have impacted upon his opinions, Dr S could have given evidence in that regard and been cross-examined in the light of the counsellor’s observations of the child and the parents, and the statements made by each of them.

86.It is to be remembered that Dr S’s report of 17 December 2004 suggested that a change of the child’s residence would be “counter to the child’s attachment needs” and would “be quite likely to be traumatic and potentially harmful for her, increasing her previous predisposition to clinical anxiety and depressive disorders in the future”.  At the very least, the receipt into evidence of Dr S’s report would have been to provide an alternate and clearly “expert” diagnosis to that which, despite complaints now made about her lack of qualifications in that regard, Ms T provided in her report. 

87.There can be no doubt that, as was submitted by counsel for the mother, an important issue in the proceedings before the learned Federal Magistrate was the likely impact upon the psychological well-being of the child of a change in her residence.  By excluding Dr S’s report, his Honour in our view excluded from consideration evidence of an expert whose qualifications and initial diagnosis was accepted by all parties and the Court Counsellor, and whose opinion, if accepted, would have established the likelihood of far reaching adverse implications for the child in the event of her residence being changed. 

88.We are unable to agree with his Honour’s conclusion, without having heard the evidence tested, that the weight to be given to Dr S’s evidence was necessarily limited.  In our view, the evidence was relevant and admissible to the welfare of the child.  Particularly in the circumstances of this case as we have discussed them, the proper course was for his Honour to have received the evidence and determined the weight, if any, appropriate to be given to it having considered all of the evidence in the case and heard Dr S’s opinion evidence tested by cross-examination. 

89.This was particularly so given that, at the time Dr S’s report was rejected, the Court Counsellor had not been cross-examined on her very detailed report which the parties had received only days prior to the commencement of the trial. By rejecting Dr S’s report, the learned Federal Magistrate deprived himself of the opportunity to hear the evidence of the Court Counsellor in the light of such report and the evidence of Dr S in the light of the Family Report. Given the significance of that evidence, this course was in our view fatal to the proper exercise of his Honour’s discretion pursuant to s 68F(2) of the Act.

90.In our view, the evidence contained in Dr S’s second report was relevant to the issues before the learned Federal Magistrate.  Dr S undoubtedly had the specialised skill and knowledge to give such evidence and, on the face of the document, relied upon his skill and knowledge for the formulation of the opinions expressed in the report.  The learned Federal Magistrate may ultimately have given Dr S’s evidence little weight, but that possibility did not in our view, in the circumstances of this case, justify the rejection of Dr S’s second report. 

91.Implicit in our conclusion that the learned Federal Magistrate erred in refusing to allow Dr S’s second report to be received in evidence, is our acceptance   that Dr S’s evidence, had it been received, may have resulted in a different outcome of the proceedings.  At least two possible conclusions arose in relation to the child’s anxiety condition: that asserted by Ms T and accepted by the learned Federal Magistrate, and the quite different opinion suggested by Dr S which his Honour did not consider.  Given that Ms T accepted Dr S’s diagnosis of the child’s condition, it could not be said that Dr S’s conclusion could not have been accepted had his evidence been received, tested and considered.  Had Dr S’s evidence been accepted, a different outcome of the proceedings would almost certainly have resulted. 

92.Given that the challenge to the learned Federal Magistrate’s refusal to receive Dr S’s report into evidence has been made out, and that the appeal should thus be allowed, it is unnecessary to consider in detail other grounds of appeal relied upon by the mother. 

CONSEQUENCES OF ALLOWING THE APPEAL

93.It was submitted on behalf of the mother that this court should re-exercise the learned Federal Magistrate’s discretion and make an order for residence in favour of the mother.  It was submitted on behalf of the father and the separate representative that, if the appeal were to be allowed, the orders of the learned Federal Magistrate should remain as interim orders.  As would be apparent from the basis upon which we have concluded that the appeal should be allowed, this Court is in no position to re-exercise the learned Federal Magistrate’s discretion.  Accordingly, the orders of the Federal Magistrate should thus remain as interim orders.  The Court is aware that the orders of 22 March 2005 have been implemented.  It is clear that each party will wish to adduce further evidence prior to a re-exercise of the learned Federal Magistrate’s discretion and that there is a likelihood that Dr S would be cross-examined and, conceivably, that it would be sought to adduce further evidence from Ms T in relation to Dr S’s second report or that she would be cross-examined in reliance upon that report. 

94.In Allesch v Maunz (2000) 203 CLR 172 the High Court said:

Although, on an appeal by way of rehearing from a discretionary judgment, an appellate court may, itself, exercise the discretion in question by reference to circumstances as they then exist, it is not bound to do so. It may, instead, set aside the order under appeal and remit the matter for rehearing or, in terms of s 94(2) of the Act ‘order a re-hearing, on such terms and conditions, if any, as it considers appropriate’. And where circumstances have or are likely to have changed between the original hearing and the disposition of the appeal, it is not uncommon for an appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question.

If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances. (per Gaudron, McHugh, Gummow and Hayne JJ, paragraphs 30-1)   

95.In our view, although regrettable, there is no proper alternative to a re-hearing of the proceedings.  It can only be hoped that the utmost expedition would be given to such re-hearing.  This Court, being unable to re-exercise the Federal Magistrate’s discretion having allowed the mother’s appeal, cannot do other than remit the matter to the Federal Magistrates Court for re-hearing.  For reasons indicated earlier, the orders made by the Federal Magistrate should remain as interim orders pending the re-hearing.

COSTS

96.Counsel for each party sought costs certificates with respect to the appeal and re-hearing in the event of this Court allowing the mother’s appeal and ordering a re-hearing.  We are persuaded that it is appropriate to grant cost certificates to each party for both the appeal and the re-hearing, given that the appeal has succeeded on a question of Law.

ORDERS:

1.That the appeal be allowed.

2.That the matter be remitted for re-hearing before the Federal Magistrates’ Court.

3.That the orders of the Federal Magistrate of 22 March 2005 continue as interim orders until judgment is delivered consequent upon the re-hearing of the proceedings pursuant to Order 2 hereof.

4.That subject to Order 3 of these orders, the orders of the Federal Magistrate of 22 March 2005 be set aside.

5.That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

6.That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

7.That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

I certify that the preceding
96 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 10/2/2006