Valdez & Frazier
[2016] FamCAFC 54
•15 April 2016
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER | [2016] FamCAFC 54 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant did not direct attention to any particular aspect of the conduct of the trial judge which could demonstrate bias – Where the appellant has not demonstrated that the trial judge relied upon undisclosed material or evidence in determining the case – Where the trial judge’s reasons illuminate in detail the evidence considered by the trial judge – Where the trial judge gave detailed consideration of the complaints made by the appellant in her reasons for judgment – Where there is no error in the trial judge’s assessment of the relevant evidence or these issues – Where the trial judge did not make a finding that the respondent was the child’s primary attachment figure and thus the appellant’s complaints as to this finding must fail – Where the appellant did not provide any evidence as to the respondent’s willingness to usurp the parental relationship between her previous foster child and the child’s mother and thus this issue was adequately dealt with by the trial judge – Where there is no substance in the assertion that the trial judge made contradictory findings on the same evidence – Where there is no substance in the complaint that the trial judge did not address each parent’s attitude to the other regarding the child – Where the trial judge provided specific reasons for rejecting the orders sought by the appellant – Where the trial judge demonstrated ample consideration of the proposals of each of the parties – Where the appellant did not agitate the issue of family violence at trial and cannot now seek to agitate it on appeal – Where the trial judge’s reasons reflect careful consideration of future aspects concerning the child and adequately dealt with those to the extent to which she could be reasonably expected to – Where the trial judge’s path to determining the time the child should spend with the father was amply explained – Where there is no substance in the appellant’s complaint that the single expert relied upon undisclosed extrinsic evidence in formulating his opinions – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – RE-OPENING – Where the appellant made two separate applications to re-open the hearing of the appeal – Where the appellant sought to admit an affidavit of a friend as to the alleged distress of the child when transitioning from the father’s care to the mother’s care – Where this was a live issue at final trial – Where this evidence was only sought in first application filed by the appellant – Where the appellant claimed that two social science articles should be admitted into evidence to demonstrate that the opinions and evidence of the single expert were fundamentally flawed and inaccurate – Where the appellant contended for a selective approach of the single expert’s evidence which would omit any evidence which was unfavourable to him – Where it was open to the trial judge to find that the appellant did not wish for the single expert to be recalled about this evidence – Where the trial judge considered that to admit the evidence would be prejudicial to the mother by causing further delay and cost – Where the trial judge did not elevate the prejudice to the mother above all other considerations – Where the trial judge correctly identified the relevant principles to be applied on an application to re-open the evidence – Where the trial judge correctly identified the relevant considerations as to the admissibility of social science research – Where the trial judge was well-placed to consider the relevance of the social science research to the outcome of the case – Where the social science research would not have the effect contended for by the appellant – Where the single expert’s opinions were based on the particular and unique circumstances of the case – Where it is not open to the appellant to challenge prior decisions which are not the subject of appeal –Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Where it is appropriate in the circumstances that the appellant be granted leave to appeal orders out of time – Application allowed – Where orders sought were overtaken by the hearing of the appeal – Where the appellant misapprehends the nature of the appeal process – Where the orders sought would only apply if the court was to re-exercise the discretion – Where the court is not satisfied the discretion should be re-exercised – Where the orders sought are interrogatories and fishing questions of each member of the court and are not bona fide, legitimate or relevant – Where the appellant seeks to re-open the hearing of the appeal on the basis of actual or apprehended bias – Where this is not a new issue – Where there is no basis to re-open the hearing of the appeals – Where the appellant sought to re-open the hearing of the appeals on the basis of fresh evidence which he argued went to the status, opinions, conclusions, advice and recommendations of the single expert – Where the fresh evidence does not raise any doubt in this regard – Where there is no merit in this application – Where the appellant sought to adduce a variety of irrelevant material – Where there is no basis to allow this evidence to be adduced – Applications dismissed. FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Where costs ought follow the event – Where neither appeal had any merit – Costs granted – Where parties to provide submissions as to costs of two Applications in an Appeal. |
| Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) |
| Australian Coal and Shale Employees’ Federation and Anor v Commonwealth and Ors (1953) 94 CLR 621 CA. v. CH. (1984) FLC 91-523 CDJ v VAJ (1998) 197 CLR 172 Eastman v Somes & Anor (No 2) (1992) 107 FLR 86 Hall and Hall (1979) FLC 90-713 Isbester v Knox City Council (2015) 255 CLR 135 Limbo v Little (1989) 98 FLR 421 McGregor & McGregor (2012) FLC 93-507 R v Chairman of General Sessions at Hamilton; Ex Parte Atterby [1959] VR 800 Raby and Raby (1976) FLC 90-104 Sanders and Sanders (1976) FLC 90-078 Simmons and Anor & Kingsley (2014) FLC 93-581. University of Wollongong v Metwally (1985) 60 ALR 68 Wen & Thom [2010] FamCAFC 81 | ||
| APPELLANT: | MR VALDEZ | |
| RESPONDENT: | MS FRAZIER |
| FILE NUMBER: | SYC | 2226 | of | 2013 | |
| APPEAL NUMBERS: | EA | 111 | of | 2014 | |
| EA | 114 | of | 2014 | ||
| DATE DELIVERED:: | 15 April 2016 | ||||
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Kent JJ |
| HEARING DATE: | 16 March 2015 Application in an Appeal filed on 27 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 July 2014 24 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1917 [2014] FCCA 1918 [2014] FCCA 1639 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys |
Orders
ORDER MADE ON 16 MARCH 2015
The applications for orders numbered 9 to 20 in the appellant’s application in an
appeal filed on 19 December 2014 be dismissed.
Orders made on date of delivery of judgment
The time to file a Notice of Appeal against the orders made on 23 July 2014 is extended nunc pro tunc to 8 September 2014 and the Notice of Appeal filed in appeal EA 111 of 2014 be deemed to be the Notice of Appeal against the orders made on 23 July 2014.
The appellant’s application for orders numbered 4 and 5 sought in the appellant’s Application in an Appeal filed in EA 114 of 2014 on 8 September 2014 be dismissed.
The appellant’s application for orders numbered 1 to 8 sought in the Application in an Appeal in EA 114 of 2014 filed on 19 December 2014 be dismissed.
The appeal EA 111 of 2014 against the orders made on 23 and 24 July 2014 be dismissed.
The appeal EA 114 of 2014 against the final parenting orders made by Judge Walker in the Federal Circuit Court on 24 July 2014 be dismissed.
The appellant pay the respondent’s costs of and incidental to each of the Applications in an Appeal filed in EA 114 of 2014 on 8 September 2014 and 19 December 2014; the appeal in EA 111 of 2014; and the appeal in EA 114 of 2014 as agreed or, in default of agreement, as assessed.
Save and except in relation to the order sought in paragraph 6 of the Application in an Appeal filed on 27 July 2015 (as amended on 4 August 2015), and which paragraph of the Application has been separately dismissed, that Application be dismissed.
The Application in an Appeal filed on 16 February 2016 be dismissed.
Within twenty-one (21) days of the date of these orders the respondent file and serve any submissions in writing in support of any application for costs of and incidental to the applications referred to in paragraphs (7) and (8) hereof.
Within fourteen (14) days of receiving any submissions in writing pursuant to paragraph (9) hereof the appellant file and serve any written submissions in response.
Within fourteen (14) days of the respondent receiving any written submissions in response pursuant to paragraph (10) hereof the respondent file and serve any written submissions in reply.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier 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 111 of 2014 and EA 114 of 2014
File Number: SYC 2226 of 2013
| MR VALDEZ |
Appellant
And
| MS FRAZIER |
Respondent
REASONS FOR JUDGMENT
introduction
Before the Court are two applications for leave to appeal, and if leave is unnecessary, or if leave is necessary and is granted, appeals against orders made by Judge Walker in the Federal Circuit Court of Australia in the course of parenting proceedings between the father and the mother of the child (born in 2011), and also various applications in an appeal. The father is the applicant for leave, the appellant, and the applicant in the applications in an appeal. The mother is the respondent to the applications for leave, the appeals, and the applications in an appeal, all of which she has opposed.
The father appeared without legal representation in the parenting proceedings as he did in these appeal proceedings. The mother was legally represented both at trial and before this Court.
It will be more convenient to explain the appeals and applications now before us after providing some factual and procedural background to this case.
The parents commenced cohabitation in October 2010, and physical separation occurred when the father left the family residence in January 2013.
Interim orders made on 25 July 2013 provided, inter alia, for the child to live with the mother and spend time with the father for daytime periods each Tuesday and Thursday and every second Friday, and one day of each weekend alternating between Saturday and Sunday.
On 19 November 2013 Dr B, a consultant clinical psychologist was, at the request of both parties, appointed as a Court expert to prepare a report. Notably, Dr B had been selected by the father for that appointment.
Thus the evidence in the trial of the parenting proceedings included the written report of Dr B dated 27 February 2014. Dr B also gave oral evidence at trial when he was cross-examined by each of the father and the mother’s counsel.
The final trial of the parenting proceedings was conducted by the trial judge over four days on 17, 18 and 19 March and 2 April 2014. At the conclusion of that trial her Honour reserved judgment.
On 21 July 2014, whilst judgment remained reserved, the father filed an Application in a Case seeking some 14 orders including orders seeking the
re-opening of the case for the purpose of adducing further evidence.
On 23 July 2014, the trial judge heard and determined the application. At that hearing the father made an oral application to have those parts of his application which were not directed to the adducing of further evidence adjourned to a future date. In the event, the trial judge delivered ex tempore Reasons for Judgment dismissing the entirety of the father’s application in a case and his oral application for an adjournment. For ease of reference we will refer to those Reasons for Judgment as “the first re-opening Reasons for Judgment”.
Later on 23 July 2014, subsequent to the hearing and determination of his first application, the father filed a further Application in a Case. By that application the father sought some 24 orders (of which two were ultimately not pressed), and which again essentially sought the re-opening of the case for the purpose of adducing further evidence.
This application was listed before the trial judge on 24 July 2014.
On 24 July 2014 the trial judge delivered ex tempore Reasons for Judgment dismissing the application. For ease of reference we will refer to those Reasons for Judgment as “the second re-opening Reasons for Judgment”.
On 24 July 2014 her Honour also made final parenting orders and delivered Reasons for Judgment in relation to those orders. For ease of reference we will refer to those Reasons for Judgment as “the parenting Reasons for Judgment”.
The final parenting orders made on 24 July 2014 provide, in summary, that save for the mother having sole parental responsibility for decisions about major long-term issues concerning the child’s education, the parents are to have equal shared parental responsibility for the child; and for the child to live with the mother and spend time with the father. The orders for that time provide, in summary and paraphrased form, for the child to commence spending overnight time on two nights per fortnight with the father from when the child attained the age of three years (the child turned three years of age about 10 days after the orders were made); and for increased periods thereafter referable to the child’s age. Focusing upon overnight periods, from the child turning three and a half years of age he was to spend four non-consecutive nights per fortnight with the father, and from his commencement at school, five consecutive overnights per fortnight.
There are also provisions in the orders, from the time of the child attaining the age of four and a half years, for the child to spend one week of holidays with each parent (order 5(a)); and from the time of the child’s commencement at school for the child to spend half of each school holiday period with each parent (order 5(b)). Other orders were made for time on special occasions (order 6) and on religious festivals (order 7).
An order was also made (order 9) permitting the mother, commencing in December 2017, to take the child to Israel or the United States of America for three weeks of the Christmas holiday period and, similarly, for the father to take the child overseas in school holidays from when the child commences school.
The father seeks to appeal the final parenting orders by a Further Amended Notice of Appeal filed on 12 December 2014, in which he also sought leave to appeal. However, leave is not needed to appeal final parenting orders.
He seeks to appeal the order of 24 July 2014 dismissing the application filed on 23 July 2014 by an Amended Notice of Appeal filed on 28 October 2014 in which he seeks leave to appeal. Whether leave to appeal that order is required depends on an interpretation of the definition of “a child welfare matter” in reg 15A of the Family Law Regulations 1984 (Cth) (“the Family Law Regulations”). Given the complexity of the other issues which arise in this case, we think it simpler to proceed on the basis that leave is not required. As will later be explained the father subsequently sought leave to also appeal (out of time) the orders made on 23 July 2014. We will grant him that leave. To that end we have extended the time to file a notice of appeal against the orders made on 23 July 2014 and have granted leave for those orders to be included as orders appealed in appeal EA 111 of 2014.
Summary of appeals and applications before this Court
Thus to summarise these Reasons for Judgment are concerned with:
·
an appeal against the orders made on 23 and 24 July 2014 (“the
re-opening appeal”) (appeal EA 111 of 2014);
·and an appeal against the final parenting orders (“the parenting appeal”) (appeal EA 114 of 2014).
We mention that the father filed a single Summary of Argument in support of both appeals and in which he raised 17 issues. We propose to regard the issues raised in that document as the issues to be considered on the appeals, rather than the grounds of appeal contained in the Notices of Appeal. It may be observed in this context that in large part the father’s respective Notices of Appeal, in terms of the identifiable or discrete grounds of appeal contained in them, did not readily correlate with the father’s Summary of Argument but it was the issues raised in his Summary of Argument that he addressed at the hearing before us.
In addition we have before us the following Applications in an Appeal filed on:
·8 September 2014;
·19 December 2014;
·27 July 2015 (amended 4 August 2015) (save for paragraph 6 which has been dealt with separately by Strickland J);
·16 February 2016.
Applications filed in the appeals
Before dealing with the father’s substantive complaints in each of his appeals, we deal with the Applications in an Appeal filed by the father relevant to the appeal proceedings.
Application in an Appeal filed on 8 September 2014
On 8 September 2014 the father filed an Application in an Appeal seeking these orders:
1. That this appeal EA114/2014, be heard urgently by the full court.
2. That the appeal EA111/2014 be heard at the same time as EA114/2014.
3.That leave is granted to include the 23 July 2014 orders and reasons rejecting the application to admit new evidence in appeal EA111/2014.
4.That in the orders of 24 July 2014 the order 4 be amended, so that [the child] resumes living with his father immediately. That [the child] be allowed to stay overnight with his father on the days he currently spends time with his father, including alternating Saturdays.
5.Failing order 4 being granted: That in the orders of 24 July 2014, the order 4(a)(i) be amened [sic] to allow [the child] to spend Saturday 8:00am to 6:00pm with the Applicant father.
On 21 October 2014 an Appeals Registrar made procedural orders in relation to both Appeal Numbers EA 111 and EA 114 of 2014. Those procedural orders provided for the appeals to be heard together on 16 March 2015. They were therefore given some expedition. Thus we do not need to concern ourselves with orders 1 and 2 sought in the Application in an Appeal filed on 8 September 2014, as they have been granted already.
The remaining orders sought in the Application in an Appeal filed on 8 September 2014, being for leave to appeal (out of time) the orders of 23 July 2014 (order 3), and for some amendment to orders concerning the child’s time with the father (orders 4 and 5), were then listed before the Full Court when the appeals were heard.
Given that the trial judge incorporated her Reasons for Judgment delivered on 23 July 2014 into her Reasons for Judgment of 24 July 2014 (concerning the “re-opening application or applications”), it seems appropriate that we should permit the father to appeal the orders made on 23 July 2014 as well as 24 July 2014. Thus, we will effectively grant order 3 of the orders sought in the Application in an Appeal filed on 8 September 2014.
As to orders 4 and 5 sought in the Application in an Appeal filed on 8 September 2014, and as we will later explain in the context of similar orders sought in the father’s Application in an Appeal filed on 19 December 2014, it was established at the hearing of the appeals, that these orders were only sought in the event that we were minded to re-exercise the discretion. We can foreshadow at this stage that we would not be prepared to do that, and accordingly, orders 4 and 5 sought in the Application in an Appeal filed on 8 September 2014 will be dismissed.
Application in an Appeal filed on 19 December 2014
The father filed an Application in an Appeal on 19 December 2014 which relates to both the re-opening appeal and the parenting appeal. The orders sought in that application are as follows:
1. That this application be heard at short notice/urgently.
2.That the appeal date for EA111/2014 & EA114/2014 be set at 19 January 2015.
3.That five (5) days be allocated to hearing the appeal, plus the time the Respondent requires.
4.That the Appellant is permitted to issue subpoena’s to [the solicitor], his email and Internet service providers, seeking the production of correspondence the Applicant sent to the Respondent on 23 September 2013.
5.That the Respondent is ordered to disclose the names of the organizations and personnel that supervised or reviewed her provision of respite care for [A’s] mother.
6.That the Appellant is permitted to issue subpoena’s to the organizations and individuals disclosed as a result of order 5, seeking the Respondent and their correspondence as well as file notes regarding the Respondent’s objections or concerns about [A’s] mother seeking to relocate [A] way from the Respondent.
7.That until further Order each party, [the appellant], born [in 1970] and [the respondent], born [in 1969], their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, born [in 2011] from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s/children’s name/names on the Watch List until the Court orders its removal.
8. That the names of the Justices to hear this matter be disclosed.
That each of the Justices of the full court to hear this matter:
9.Disclose to both parties prior to the hearing, the “extrinsic evidence” or “research studies” (particularly Dr Jennifer McIntosh’s publications, papers, studies, presentations or any such materials) consulted or taken into account when deciding parenting orders, including the “imaging of the brain” research the Chief Justice cites is relied on by these courts.
10.Disclose to both parties any other contractual arrangements between Dr McIntosh and these courts, or any other party who, acting on behalf or in consultation with these courts, has engaged Dr McIntosh on behalf of these courts.
11.Disclose the nature and amount of any payments, monetary or in kind, the court or any other party, acting on behalf or in consultation with these courts, made to Dr McIntosh.
12.Disclose attendance at the seminars, presentations, conferences speeches and talks concerning “extrinsic evidence” about parents and their children, which have been attended by the Justices.
13.Disclose all correspondence between the Court’s Justices and Dr McIntosh or any author or researcher, specifically but not limited to private or court addresses for correspondence related to this courts work or how this court works.
14.Cite the statutory or common law references from which these courts claim authority to apply evidence about third parties (“extrinsic evidence” or “research studies”) to the parties before these courts.
15.Cite the scientific theorems or results from which these courts claim the ability to apply evidence about third parties (“extrinsic evidence” or “research studies”) to the parties before these courts.
16.Cite the statutory or common law reference establishing a requirement that these courts evaluate parenting orders with reference to “extrinsic evidence” about parties not before the court.
17.Cite the statutory or common law references from which the Justices claim authority to: conduct independent inquisitions into “extrinsic evidence” or “research studies” concerning third parties, formulate pre-judice opinions and views, apply those results, opinions or views to the individuals before the court, and treat those pre-judice views or opinions and adjudicative evidence or fact about the individuals before the court.
18.Cite the scientific theorems, laws or results from which these courts claim the ability to arrive (scientifically), by deduction or induction, at pre-judice opinions and views about individuals from “extrinsic evidence” or “research studies”.
19.Cite the statutory or common law references that authorize and guide when these court’s Justices transition from being inquisitor to adjudicator concerning issues and questions before the court.
20.Cite the expertise that equips or qualifies these court’s Justices to independently inquire into or adjudicate the merit/validity of “research studies”, or otherwise hold themselves out as experts or specialists in “extrinsic evidence”. Specifically, but not limited to, independent evidence of formal training in ergodic theory, real analysis, measurable functions, theory of point estimation, model selection and multi-model inference, quasi-likelihood theory, finite sample estimation, experimental design, etc.
(errors as in original)
An Appeals Registrar listed this application to be heard by the Full Court hearing the appeals on 16 March 2015. However, on 20 January 2015 the father filed an application to review this listing decision of the Appeals Registrar. It was his position that his Application in an Appeal should be heard as soon as possible and at a time preceding the hearing of the appeals. This application for a review was dismissed by Ryan J sitting as a single judge exercising appellate jurisdiction on 17 February 2015.
Ryan J on 17 February 2015 also refused the father’s application (order 3) for five days to be allocated to the hearing of this appeal. Her Honour’s Reasons for Judgment record that she explained to the father the nature of the appeal process and referred to the fact that his seeking such a time period for this appeal reflected misconception on his part as to that process. Notwithstanding that, the father revisited before us on the hearing of these appeals this aspect and this is a topic to which we will return later in these Reasons.
Ryan J also refused the order sought (order 8) that “the names of the justices to hear this matter be disclosed”. Her Honour recorded in her Reasons for Judgment delivered on 17 February 2015 that she had explained to the father at the hearing, that the manner in which the listing of appeals and the assignation of the particular judges to hear a particular appeal occurs, did not allow for such advance identification to be provided to parties.
An Appeals Registrar subsequently listed the hearing of those parts of this Application in an Appeal not dealt with by Ryan J on 17 February 2015 to the hearing of the appeal on 16 March 2015.
Orders 1, 2 and 3 of this Application in an Appeal were addressed to the listing of these appeals and their duration. They were essentially overtaken by events by the hearing of the appeal before us, as was order 8, given the administrative determinations of the Appeals Registrar and the hearing before Ryan J on 17 February 2015. All that need be noted is that the father again sought before us that five days be allocated to the hearing of his appeal but as will be explained later in these Reasons for Judgment, it would seem that the father, who is self-represented and has no relevant qualifications as a lawyer, again misapprehended the nature of the appeal process.
At the hearing of these appeals on 16 March 2015, we clarified with the father that several of the orders he sought in this application (orders 4, 5, 6 and 7) were pursued by him only in the event that this Court allowed the appeal against the final parenting orders made on 24 July 2014, and this Court was minded to re-exercise the discretion to make parenting orders rather than remitting the proceedings for re-hearing. That approach likewise applies to the interim orders (orders 4 and 5) sought in the Application in an Appeal filed on 8 September 2014.
The balance of the orders sought in this Application in an Appeal, which were pursued by the father at the hearing before us, were orders 9 to 20 calling upon the members of this Court to provide the identified information in each of these paragraphs.
At the hearing we dismissed the father’s application for orders 9 to 20 set out above and recorded that we would incorporate our reasons for so doing in these Reasons for Judgment. We now provide those reasons.
The nature, content and breadth of what are framed as orders in paragraphs 9 to 20 (inclusive above) but in truth constitute extensive interrogatories and fishing questions of each member of this Court, cannot be characterised as bona fide or legitimate and relevant questions designed to elicit information to address any reasonable apprehension on the part of the father that he might not receive a fair hearing of his appeals.
Each of the orders sought in 13 to 20 (inclusive) in particular contain presumptive assumptions which are grossly inaccurate as to the process by which parenting orders are determined in accordance with Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the nature of the appeal process.
In our judgment all of these questions, framed as orders sought in paragraphs 9 to 20, can be readily characterised as an affront to judicial integrity (see Limbo v Little (1989) 98 FLR 421; Eastman v Somes & Anor (No 2) (1992) 107 FLR 86; and R v Chairman of General Sessions at Hamilton; Ex Parte Atterby [1959] VR 800 at [802]).
It was for this reason that we dismissed orders 9 to 20 sought in the Application in an Appeal filed on 19 December 2014 at the hearing of these appeals.
Application in an Appeal filed on 27 July 2015 (as amended 4 August 2015)
Following the hearing of the appeal, and upon the Court having reserved its decision, the father filed a further Application in an Appeal on 27 July 2015 seeking a number of orders including leave to re-open the hearing of the appeals.
Apparently, on 4 August 2015 the father filed an Amended Application in an Appeal whereby he added a further sub-paragraph to the documents that he is seeking be put before this Court on a re-opening of the hearing of the appeals. Unfortunately, that amended application was not brought to the attention of this Court immediately, but there is no significant difference between the initial application and the amended application, and it has not been necessary to address the specific amendment until now.
The orders sought by the father are as follows:
1) That this application in an appeal be heard urgently by the full court, and in the absence of the parties.
2) That leave is granted to reopen appeal EA111/2014 and EA114/2014.
3) That appeal EA111/2014 be heard at the same time as EA114/2014.
4) That, for the purposes of addressing the bias and apprehension of bias of Judge Walker and Justice Ryan, and the apprehension of bias of Justice Strickland, leave is granted to admit submissions based on the transcript, orders and reasons of the case Isbester v. Knox City Council, [2015] HCA 20, 10 June 2015, M19/2015.
5) That, for the purposes of addressing the issues raised in Isbester v. Knox City Council, [2015] HCA 20, leave is granted to admit:
a) submissions and as evidence the transcript, orders and reasons of the 25 July 2013 emergency hearing.
b) That leave is granted to admit submissions and as evidence the transcript, orders and reasons of the 3 September 2013 hearing.
c) That leave is granted to admit submissions and as evidence the transcript, orders and reasons of the 19 November 2013 hearing.
d) That leave is granted to admit submissions and as evidence the transcript, orders and reasons of the 11 December 2013 hearing.
e) That leave is granted to admit submissions and as evidence the transcript, orders and reasons of the 4 July 2014 and 11 August 2014 hearings.
f)The Notices, Applications and Affidavits submitted in support of the hearings above.
6)That Justice Strickland recuse himself from these proceedings.
7) That the court grant certificates to both parties under the Federal Proceedings Costs Act.
(emphasis as in original)
Paragraph 5f) comprises the amendment made in the amended application.
In relation to paragraph 6, necessarily that had to be addressed first, and it was dealt with separately by Strickland J. On 28 October 2015 his Honour dismissed that application.
On 29 October 2015 this Court made the following orders:
1.Within fourteen (14) days of the date of these orders the appellant file and serve upon the respondent (through her solicitors) written submissions in support of all but paragraph 6 of the application.
2.The respondent have fourteen (14) days from the date on which she is served with the appellant’s written submissions to file and serve upon the appellant written submissions in response to the appellant’s written submissions.
3.The appellant have seven (7) days from the date on which he is served with the respondent’s written submissions in response to file and serve written submissions in reply to the respondent’s written submissions.
On 4 November 2015 the father filed his written submissions in accordance with our orders, and served them on the mother on 5 November 2015. However, the mother failed to file her written submissions by 19 November 2015, and sought to file them on 25 November 2015. In an accompanying email, the mother’s solicitor said this:
In accordance with the Orders made by Strickland J [sic] on 29 October 2015 we attach our client’s Submissions.
We apologise for the submissions being filed out of time. This is because the writer was overseas at the time that the Orders were made by His Honour on 29 October 2015 and the writer only returned to work last week. We required counsel’s assistance in preparation of the attached submissions and accordingly, it has taken us out of the due date for filing the said submissions.
(emphasis as in original)
The father has objected to the mother’s submissions being received by this Court because they were not filed within time. However, although there has been no formal application by the mother seeking an extension of time, we treat the contents of the email of the solicitor as in effect making that application. Given the explanation by the solicitor for the delay, and the fact that it was only six days late, we consider that the interests of justice require us to receive those submissions, and we do so. Importantly, we do not consider that the father is prejudiced by this outcome given that in his reply filed on 2 December 2015, he has addressed the mother’s submissions.
Turning then to the father’s application.
The orders sought in the application that need to be addressed are paragraphs 2, 4 and 5.
In relation to paragraph 1, the application is being dealt with as “urgently” as this Court can accommodate and “in the absence of the parties”.
In relation to paragraph 3, both appeals have been heard together, and therefore there is no need for a further order to that effect.
As to paragraph 6, we have explained that that has been dealt with separately.
In relation to paragraph 7, the question of costs and certificates was addressed at the conclusion of the hearing of the appeals. It is not open for certificates to be provided in relation to this application, but there may be an issue of costs and we will return to that shortly.
For completeness, we note that in his written submissions filed on 4 November 2015 the father repeated the orders sought but attempted to add further orders. That is entirely inappropriate, and should have been the subject of a further amended application. The further orders that he sought are as follows:
a) That Strickland J “recuse himself from these … proceedings … on the basis of actual bias evident in his reasons for judgement [sic] 28 October 2015”.
b) That “the court quash the findings and orders of”:
·the emergency hearing held 25 July 2013;
·the Contravention Application heard 28 January 2014;
·final hearing held 17-19 March and 2 April 2014;
·application in a case heard 20 July 2014; and
·the application in a case heard 23 July 2014.
c) A new judge be assigned by the registrar to “rehear this case”.
Apart from the fact that these orders are not the subject of a further amended application, they are not orders that this Court would (or could) make on an application in an appeal, and we note that the order sought that Strickland J further “recuse himself from these proceedings” has now been dealt with separately by his Honour. Thus, we will not be addressing any of these further orders.
Returning to the orders that we need to address, in summary, the father seeks to re-open the hearing of the appeals as a result of the decision of the High Court in Isbester v Knox City Council (2015) 255 CLR 135 (“Isbester”). In effect he seeks to make submissions on the basis of that decision in relation to his claim that the trial judge was either biased or there was an apprehension of bias on her part. For that same purpose he also seeks that this Court admit various documents including the submissions, the transcripts, the orders and the Reasons for a number of interlocutory or interim hearings in the proceedings at first instance.
We note that the father also seeks to address claims of bias against Strickland J and Ryan J, but we are not prepared to permit that because there is no appeal against orders made by Ryan J, and the question of the disqualification of Strickland J has been dealt with separately.
In addressing this application it is necessary to understand that the father had included in his grounds of appeal in both appeals the following complaint:
Judge Walker exhibited Judicial bias from the initial hearing and subsequent hearings that established the context and subject matter of the final hearing.
The father then had ample opportunity to make both written and oral submissions in support of that ground of appeal, and which opportunity he took up. The father also in his Application in an Appeal filed on 8 September 2014 sought to adduce further evidence including extracts from various transcripts of hearings which it is said demonstrate that the trial judge “misrepresented the agreed evidence”, and that the Family Courts are prejudiced “against allowing young children to live with their fathers”. We address that issue later in these Reasons for Judgment.
Thus, it is readily apparent that the issues that the father now wishes to agitate are not new issues.
The High Court decision in Isbester concerned a local council employee who had brought a charge against the owner of a dog, and who then sat on the panel of three to determine if the dog should be destroyed. The High Court quashed the decision of the panel to destroy the dog primarily on the basis that a
fair-minded observer might reasonably apprehend that the employee might not have brought an impartial mind to the decision, and natural justice required that the employee not participate in the decision.
The father seeks to draw an analogy between the position of the employee being the prosecutor of the charge, and her Honour’s involvement in the initial and subsequent hearings in these proceedings. This is best explained by setting out the following paragraphs from the father’s written submissions:
55.Under the High Court’s Opinion in Isbester the following is the case law with respect to Judge Walker’s hearing any matter after the emergency hearing:
The interest of Judge Walker who had earlier in the emergency hearing had adopted the role of accuser, then accused the Applicant of engaging in conduct that caused [the child’s] distress (after lying to eliminate the evidence that the distress took place over 5 months and was caused by the Respondent’s refusal to agree to any other pattern of care) is akin to a person making allegations/bringing-charges, which it is generally expected will conflict with the person deciding the allegation and any consequential matters. It is not realistic to regard Judge Walker’s interest as coming to an end when the allegations (which were directed to the past) were determined in the emergency hearing. That interest may be in the vindication of her opinion that the abuse/mistreatment of [the child] has occurred, and was caused by the Appellant father, or that a particular penalty/restriction should be imposed on the Applicant father’s involvement in the care of [the child], or in obtaining an outcome consonant with the view of the Appellant father’s responsibility, parental capacity, guilt and restrictions/punishment ordered. A fair-minded person might reasonably apprehend that the Judge might not have brought an impartial mind to the subsequent decision(s). So, natural justice requires that the decision of the emergency hearing, the contravention application and the final hearing be quashed.
56.Crucial to applying the High Court’s decision is recognizing that the decision to order in the final hearing, that [the child] not live with his father, spend only limited time with his father, and that his father had limited parental capacity is, after Isbester, affected by apprehended bias due to the perception that Judge Walker who had initially investigated the matter in the emergency hearing, and had made fictitious charges against the Appellant father (accusing the Appellant father of conduct that had caused [the child’s] distress as described in the emergency hearing), had an interest in the outcome of the final hearing being congruent with the emergency hearing orders – that [the child] not be permitted to live with his father, have limited contact with his father, and that his father’s actions, were the source of the psychological harm to [the child], as reflected in his distress.
In the context of apprehended bias, a conflict of interest will occur where the decision-maker has a personal interest in the outcome of the decision. This can occur even though the decision-maker may not necessarily obtain a material or other benefit by the decision being made in accordance with the earlier view held.
Unfortunately, with all due respect to the father, the analogy that he seeks to draw cannot be maintained. It is entirely misguided to attempt to portray the trial judge as an accuser or a prosecutor. At all times the role of the trial judge is to hear the evidence presented by the parties in support of their respective claims, make findings as to that evidence, and apply the law to those findings. That is what the trial judge did in this case, and including at the initial hearing.
The father attempts to base his argument on an allegation that the trial judge has “deliberately” lied in her Reasons for Judgment in making accusations “against [his] conduct”. Not only is that a scandalous allegation to make against a judicial officer, but it is patently wrong.
Thus, given that there is no analogy between this case and Isbester, there is no basis to re-open the hearing of the appeals as sought by the father.
Certainly Isbester was concerned with issues of bias and the apprehension of bias, but the High Court did not alter the principles that are applicable to such complaints. Those principles were well known and available to the father to explore in his written and oral submissions in the appeals, and thus again, there is no basis for the hearing of these appeals to be re-opened.
Further, we note that that finding also results in there being no basis for this Court to receive the documents identified in paragraph 5 of the Amended Application in an Appeal filed on 4 August 2015. In any event, we observe that many of those documents are in fact already in the appeal books and thus before this Court.
Given that we propose to dismiss the balance of this Application in an Appeal, we also need to provide for the parties to address the question of the costs of the application. We will do that by setting up a regime for the filing of written submissions.
Application in an Appeal filed on 16 February 2016
Without of course knowing the result of the application of 27 July 2015 (as amended on 4 August 2015) seeking leave to re-open the hearing of the appeals, on 16 February 2016 the father filed a further Application in an Appeal supported by an affidavit.
The orders sought in that application are as follows:
1) That this application in an appeal be heard urgently by the court and in the absence of the parties.
2) That leave is granted to reopen appeal EA 111/2014 and EA 114/2014.
3)That appeal EA 111/2014 be heard at the same time as EA 114/2014.
4)That, for the purposes of addressing the fresh evidence presented since the final hearing, contained in the Appellant’s affidavit filed in support of this application, and issues it raises about the reliance on the court’s psychologist, leave is granted to make written submissions, for the purposes of addressing the trial court’s psychologist’s status, opinions, opinion evidence, conclusions, advice and recommendations, and Judge Walker’s reliance on the same.
5) That leave is granted to make written submissions:
a)and use as evidence the affidavits, transcript, orders and reasons of the 25 July 2013 emergency hearing.
b)and use as evidence the transcript, orders and reasons of the 3 September 2013 hearing.
c)and use as evidence the transcript, orders and reasons of the 19 November 2013 hearing.
d)and use as evidence the transcript, orders and reasons of the 11 December 2013 hearing.
e)and use as evidence the transcript, orders and reasons of the 4 July 2014 and 11 August 2014 hearings.
f)and use as evidence the transcript, orders and reasons of the final hearing held 17-19 March and 2 April 2014, the application in a case heard 20 July 2014, the application in a case heard 23 July 2014.
g)and use as evidence the Notices, Applications and Affidavits submitted in support of the hearings above.
6)That the court quash the findings and orders of: the emergency hearing held 25 July 2013, final hearing held 17-19 March and 2 April 2014, the application in a case heard 20 July 2014, the application in a case heard 23 July 2014.
7) That the registrar assign a new Judge to rehear this case.
8)That the court grant certificates to both parties under the Federal Proceedings Costs Act.
As can be seen, the orders sought in paragraphs 1, 2, 3, and 8 are precisely the same as the orders sought in the earlier application, and having now dealt with those orders we do not need to address them again. Further, the orders sought in sub-paragraphs 5(a)-(e) and 5(g) are also in effect the same as the orders sought in the earlier application, and likewise we do not need to deal with them again.
With the order sought in paragraph 6, that seeks the same order as was sought to be raised in the father’s written submissions filed on 4 November 2015, and that too has now been addressed by us in our Reasons for Judgment.
As to the order sought in paragraph 7, that is an order that could only be sought if the appeals dealt with herein were successful. As will be seen that is not the case, and thus this aspect of the application will be dismissed.
That leaves the order sought in paragraph 4. There the father seeks leave to make written submissions based on the “fresh evidence” contained in the affidavit filed in support, with the stated purpose of challenging the “status” and the “opinions … conclusions, advice and recommendations” of Dr B and the trial judge’s reliance on them.
We have not sought written submissions of the parties as to that application because, as we will shortly explain, we consider there is no merit in the application, and we see no need to delay the finalisation of the appeals by that process.
The “fresh evidence” comprises seven articles, the first entitled “Estimating the reproducibility of psychological science”, the second entitled “Over half of psychology studies fail reproducibility test”, the third entitled “Study delivers bleak verdict on validity of psychology experiment results”, the fourth entitled “Why most published research findings are false”, the fifth entitled “An Open, Large-Scale, Collaborative Effort to Estimate the Reproducibility of Psychological Science”, the sixth entitled “Reproducibility” and the seventh entitled “Making it all up – the behaviour sciences scandal”.
Having read these articles they do not raise any doubts as to the status of Dr B, his opinions, conclusions, advice or recommendations, or the reliance by the trial judge thereon. They are simply irrelevant to the issue the trial judge had to determine, and importantly they do not demonstrate any appealable error by her Honour.
The balance of the material annexed to the father’s affidavit comprises first, emails passing between the parties, but containing nothing new or anything that satisfies the requirements for the receipt of further evidence outlined in CDJ v VAJ (1998) 197 CLR 172, secondly a portion of the transcript from the final hearing, and thirdly an affidavit of the father of 7 March 2014, both of which were clearly before her Honour at trial, and thus no basis exists for them to be received as “fresh evidence”.
Accordingly, this application in an appeal must also be dismissed, and on that basis we will also seek submissions from the parties as to the costs of and incidental to that application, although in the circumstances we would not expect there to be any costs incurred by the mother.
Discretionary judgments – nature of appeal process
Before dealing with the specific challenges raised by the father in each of his respective appeals we consider that, in overview, the father’s approach, evidenced by the nature of many aspects of his applications in the appeals earlier discussed, together with the manner in which the father approached the appeal process, reflects a lack of understanding on the part of the father, who we repeat is self-represented, of some fundamental aspects relevant to these appeals, and to appeals generally.
The father, with tertiary qualifications in mathematics and finance and who holds a PhD in what he described as “the intersection of mathematical statistics and finance” sought to elevate science, and in particular social and behavioural science studies or research, to be the foundation of the process by which the parenting orders in this case were determined.
It is well recognised that within the exercise of the wide discretion that the Court has in determining a child’s best interests, and likewise within the exercise of the wide discretion in determining parenting orders to meet a child’s best interests that, firstly, there are many value judgments and, secondly, that there is no single correct answer to the question of what the best interests of a child requires.
In CDJ v VAJ (supra) the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (at 218-19):
… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions …
Recognition that each of prediction, assumption, perception, value judgments, intuition and even guesswork can all legitimately play a part in the exercise by a trial judge of the discretion to determine parenting orders, with the acknowledgement that there is no single right answer as to the orders which meet a child’s best interests, is obviously antithetical to scientific methodology which was at the forefront of the father’s challenges in these appeals.
In relation to appeals from discretionary judgments in Australian Coal and Shale Employees’ Federation and Anor v Commonwealth and Ors (1953) 94 CLR 621 Kitto J observed (at p 627):
… I shall not repeat the references I made in Lovell v. Lovell [[1950] HCA 52; (1950) 81 CLR 513, at pp. 532-534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [[1936] HCA 40; (1936) 55 CLR 499, at pp. 504, 505].
The father’s approach in these appeals also seems to overlook the fact that there is ample authority for the proposition that a trial judge is not bound to accept or act upon expert evidence, whether sourced to a single expert such as Dr B or based upon articles or studies in the field of social science (see Simmons and Anor & Kingsley (2014) FLC 93-581 and the authorities cited at [40]).
Moreover, and as we endeavoured to explain to the father when he was before us, criticism or challenge of the opinions of Dr B has no utility in these appeals unless the father can demonstrate that the trial judge relied upon those opinions contrary to other evidence and was thus plainly wrong in doing so. Here, as will be further discussed, a striking example is that the father agitates considerable complaint about Dr B’s expressed opinion to the effect that the mother is the child’s primary attachment figure. However, there is no utility in exploring these complaints on appeal for the simple reason that the trial judge did not make a finding in accordance with that opinion.
At [120] to [133] of the parenting Reasons for Judgment the trial judge discusses in some detail the competing claims of each parent to being the child’s primary attachment figure and the trial judge discusses the evidence of Dr B including what is described as the “separation test” Dr B caused to be conducted in assessing this aspect. The trial judge did not ultimately accept Dr B’s opinion that the mother was the child’s primary attachment figure. The trial judge’s conclusion on the topic, after the discussion referred to (the trial judge having earlier recorded a finding at [1] that the child had a “close bond” with each parent) is expressed at [133] as follows:
133.It is reasonable to conclude that Dr [B] acknowledged that [the child] had a close and positive relationship with each of his parents and the court finds, on the evidence that this is the case.
This is one of a number of examples where the father’s challenges on appeal relating to the evidence or opinions of Dr B overlooks the centrally important feature that it is the findings of the trial judge which need to be focused upon. That is, there is no utility in exploring the merits or otherwise of particular aspects of Dr B’s opinion if the opinion does not find reflection in the findings made by the trial judge.
With the above considerations in mind we turn to the challenges advanced by the father by reference to his Summary of Argument. As already noted, the father’s Summary of Argument combines his challenges in both the re-opening appeal and the parenting appeal, and the father’s oral argument likewise proceeded by reference to his Summary of Argument filed on 12 December 2014. We will therefore deal with each of the father’s challenges as set out in his Summary of Argument recognising that some or most relate only to the parenting appeal.
Judicial bias
In support of his claim that the trial judge is or was biased, the father purports to refer to “several law firms” (unnamed) as subscribing to the view that the trial judge is predisposed against any father in any parenting cases involving a young child. There is no merit in that proposition.
This complaint also appears to relate to the evidence of a Rabbi. The father relied upon an affidavit of the Rabbi filed 6 March 2014. The mother did not object to the affidavit of the Rabbi and he was not required for
cross-examination. However, there was an annexure to the father’s own affidavit filed on 30 August 2013 including a letter typed in Hebrew. Objection was successfully taken by the mother to the purported translation (by the Rabbi) on a number of grounds including that the letter was not part of an affidavit by an accredited interpreter and it carried none of the indicia of a formally or properly interpreted document.
Having upheld the objection, the trial judge engaged in discussion with the father as to how he might rectify that. However, the father made no further application and did not return to the issue, as the trial transcript reveals. We fail to see how an obviously correct ruling by the trial judge on admissibility of evidence could sustain a contention of bias.
Another assertion in support of this challenge, that the submissions on behalf of the mother were to the effect that the trial judge “disregard the Act” is unaccompanied by any particulars and was not established in any oral submissions made by the father during the hearing of his appeals. As such, the assertion is without substance.
The further assertion within this challenge, that the trial judge “invented” an interpretation concerning what the father describes as “… the agreed evidence of the child’s extreme and ongoing distress …” is likewise unparticularised but appears to relate to the father’s case agitated at trial that the child always exhibited distress on the occasions when there was a changeover from the father to the mother.
This issue was addressed by the trial judge at some length at [176] to [193] of her Reasons for Judgment.
In the light of that discussion, which we need not repeat, we are comfortably satisfied that the trial judge correctly identified the issues agitated by each party, including those agitated by the father in relation to his assertions concerning the child’s distress, and we see no merit in the contention that the trial judge was guilty of any invention. Rather, the trial judge carefully considered the evidence and discussed it at some length.
None of the father’s documents filed on appeal, nor his Summary of Argument nor his oral argument on appeal directed attention to any particular aspect of the conduct of the trial judge of the trial in support of his claim that the trial judge exhibited bias, either actual or apprehended, towards him.
We find no merit in this complaint.
Court’s policy of collecting and not disclosing the use of extrinsic evidence
In support of this challenge the father refers to an extra curial statement made by the Chief Justice of this Court on 24 March 2014. In short, the father contends that this statement makes good the proposition that the Family Court (and presumably also the Federal Circuit Court) take an approach of collecting and using social science literature (which the father describes as “extrinsic evidence”) for the purpose of deciding parenting cases, and do so without disclosing such literature to the litigant parties.
That extraordinary proposition is not supported by the full content of the statement made by the Chief Justice. That aside, nothing to which the father directed our attention in any of his appeal documents or in his oral submissions established the proposition that in determining this case the trial judge relied upon undisclosed material or evidence.
The Reasons for Judgment delivered by the trial judge in support of the parenting orders she made illuminate in considerable detail the evidence the trial judge considered and her resolution of the issues agitated before her.
This challenge is without merit.
Judge Walker’s reliance on undisclosed “extrinsic evidence”
The father’s statement in his Summary of Argument in support of this challenge is, with all due respect to him, largely unintelligible.
On the assumption that the “urgent” hearings referred to by the father in his Summary of Argument are the hearings of 23 and 24 July 2014 dealing with his application to re-open the evidence, review of the transcripts of those hearings does not demonstrate how it can be said that the trial judge either relied upon any extrinsic evidence, or did not disclose any extrinsic evidence relied upon in determining the applications.
This challenge fails.
The Court’s expert’s reliance on undisclosed “extrinsic evidence”
In support of this contention the father’s Summary of Argument asserts this:
Reliance on extrinsic evidence of McIntosh (McIntosh, et. al. (2010)) since independently confirmed as fraudulent, Warshak (2014) and Nielsen (2014). Centrality of McIntosh’s results undisclosed in expert’s report. Use of multiple-choice questionnaires explicitly not authorised by publisher for use outside clinical settings. The multiple choice questionnaires were shown to have no validity in clinical settings. Judge Walker’s reasons reveal an [sic] basic ignorance of the implications of the joint hypothesis in the stranger-fear / parental-trust test.
In our judgment it is clear that underlying this challenge, and indeed many of the challenges mounted by the father, is a proposition to the effect that the evidence and opinions of Dr B were based solely upon specific social science literature or articles and, in turn, so were the parenting orders as ultimately determined by the trial judge.
As already noted, Dr B was selected by the father as an appropriate expert, and Dr B was, by the consent of both parties, appointed as the single expert by order of the Federal Circuit Court made on 19 November 2013.
Dr B provided a detailed family report dated 27 February 2014 annexed to his affidavit of the same date. In his report Dr B details the information that he obtained for the purpose of compiling his report including affidavits and other documents supplied by each party. Importantly, Dr B also undertook extensive clinical interviews with each of the parties and undertook behavioural observations of the child. Dr B caused the parties to complete standardised psychometric assessments and he records in his report that his interviews and assessments were conducted over two days and took approximately 10 hours to complete.
Whilst some references are made in Dr B’s report to items of social science literature it cannot be said that, viewed holistically, Dr B’s report evidences his reliance wholly, or even substantially, upon particular items of social science literature in formulating the opinions expressed in his report. Dr B undertook detailed interviews of both parties, and his report outlines in considerable detail the issues between them and relating to the ongoing conflict between them, and the potential exposure of the child to that conflict in future. Dr B considered the psychological profile of each party, and it is clear that in his 26 page report his evaluation was based upon far more than any particular or individual items of social science literature or research.
Review of the trial transcript reveals that the father cross-examined Dr B at some considerable length including cross-examination directed to a number of articles and research material.
In short, review of the trial transcript reveals that the father took the opportunity in cross-examination to undertake significant testing of the opinions of Dr B including on the topic of any research which may have underpinned any of his opinions. Indeed, as noted, the father challenged Dr B by reference to other articles or items of social science literature.
After Dr B had completed giving oral evidence at trial the father tendered a bundle of articles which was admitted without objection as Exhibit 7 in the proceedings.
Review of the trial transcript also reveals that in his final submissions the father devoted significant attention to critiquing the opinion and evidence of Dr B insofar as either were critical of the father, but at no stage did the father make any submission to the effect that Dr B’s evidence or opinions were founded upon any undisclosed or “extrinsic evidence”.
Plainly, it is not the task of an expert witness in any civil court to provide full details of how the expert acquired the specialised knowledge possessed by the expert by detailing all of the person’s training, study or experience within the relevant field. It is not incumbent upon an expert family report writer to identify or reference each and every item of social science literature the expert has ever read leading to the point of the expert giving evidence at a trial.
As to the question of when the child, given his age, might commence to spend overnight time with the father, Dr B gave oral evidence on the first day of hearing, during cross-examination concerning the relevance of the child’s age. In an answer to a question from the trial judge Dr B said:
Certainly from the literature, depending on what you read, there is an increasing emphasis on trying to preserve a primary base for the child under the age of four. (Transcript 17.3.14, page 122, lines 20-23) (emphasis added)
Dr B, again gave oral evidence on the third day of the trial. During his cross-examination by the father on that occasion the father challenged Dr B on the same topic. The trial judge then asked Dr B, obviously referenced to the exchange on the first day of the hearing, to identify the literature he was referring to. Dr B responded nominating two reports being “McIntosh & Smyth” as well as “Kaspiew”.
In his oral evidence Dr B was at some pains to highlight the distinction between the results of longitudinal studies of infants and toddlers to which he referred in terms of the general or hypotheticals, with the application of them to this particular case. In the course of his evidence discussing these studies Dr B said:
So the findings from those authors was quite clearly and quite adamantly that four years of age is not a line in the sand and hence my discussion with her Honour on Monday to say that yes there is a timeframe, a developmental point for a child saying that from four years of age onwards they are more stable and more able to cope with change in their care environment. However, given the unique factors in this family, being yourself and [the mother], the engagement of yourself as a father and obviously high levels of motivation and interest, my suggestion as a clinician was to bring forward overnight care faster than I would in other matters – hence the way I articulated that. (Transcript 19.3.14, page 21, lines 8-16)
The father put an article by Professor Lamb to Dr B in cross-examination in the context of the proposition that the McIntosh & Smyth study and a Solomon & George study also referred to by Dr B were “fundamentally flawed”. Importantly Dr B acknowledged that the vast majority of studies are “flawed” in some way. Dr B further acknowledged that it could not be said that there was “consensus” within the literature concerning guidelines as to the appropriate age of the child to regularly transition between two households. Again in that context Dr B referred to the particular circumstances of this particular case. Dr B gave this evidence:
There is a growing – growing feeling or sense – and I certainly won’t reach for the word consensus – in the literature to say that the critical period of stability for an infant/toddler is zero to four years, conceptually, but within individually-assessed parameters. So clinicians need to take into account the unique characteristics of the caregivers involved, their levels of – I’ve mentioned it before, their levels of stability, cooperation and communication, and the unique characteristics – probably more importantly the unique characteristics of the child involved. (Transcript 19.3.14, page 23, lines 8-15)
Amongst the literature the father put to Dr B in cross-examination was an article by Kelly and Lamb (2000), or an excerpt from that article, describing a good parenting plan for the very young as being one in which infants and toddlers have opportunity to interact with both parents “every day or every other day” in a variety of functional contexts which “would logically incorporate overnight care”. In that context there was this exchange between the father and Dr B in the course of his cross-examination:
APPELLANT: So you have no, per se, objection to the Lamb and Kelly conclusions?
THE WITNESS: No. And in fact, their 2000 study, they go into that at great – in great detail about the importance of – and their focus was primarily on fathers, and separating out involved fathers from uninvolved fathers, from sensitive fathers to insensitive or non-communicative fathers, and so on. So they are most passionate advocates of wanting fathers involved. And they then, in that study, focus on the longer-term impacts of children being raised in fatherless homes. So fortunately for [the child] in this instance, he has a very engaged and committed father. That’s fantastic. I’m trying to put forward my clinical views for the court to consider in crafting orders that has [the child] first and front and centre, a stable and safe home environment, and an opportunity to build a very active, positive relationship with his father as well. (Transcript 19.3.14, page 25, line 40 to page 26, line 5)
Review of the trial transcript of the extensive cross-examination of Dr B on each of the first and third days of the trial reveals several instances where, in response to a question or proposition put to him by the father, Dr B sought clarification as to whether the question or proposition was to be answered in general or in the hypothetical, or whether it was to be answered in the particular circumstances of this case.
In summary, it is plain that in his evidence Dr B:
a)clearly acknowledged that some “flaw” could be identified in any piece of social science literature, study or article relevant to the issues canvassed; and
b)clearly acknowledged that there was no “consensus” as such within that literature, carrying with it the acknowledgement by Dr B that there were conflicting views or opinions within the field of social science; and
c)repeatedly emphasised the critical importance of focusing upon the particular and unique circumstances of this case and of this particular child in proposing appropriate care arrangements.
We find no substance in the father’s complaint that Dr B relied upon undisclosed “extrinsic evidence” in formulating his opinions. To the contrary, both the report and the oral evidence of Dr B make plain the bases upon which he reached the conclusions that he did, which clearly focused on the unique and particular circumstances of these parents and this child.
The complaints about the trial judge articulated under this topic seemingly ignore that the trial judge gave detailed consideration, particularly at [70] to [86] of her Reasons for Judgment for the parenting orders, to the tests administrated by Dr B and to the same complaints as the father seeks to agitate before us on appeal.
These complaints are no more than a re-agitation by the father of the same issues he agitated before the trial judge. We discern no error in the trial judge’s assessment of the relevant evidence or of these issues and we thus find no merit in this complaint.
Judge Walker’s refusal to admit new evidence
Obviously this paragraph of the Summary of Argument is directed solely to the re-opening appeal.
We note that in contrast to this paragraph, which appears to be the only paragraph in the Summary of Argument directed solely to the re-opening appeal, in the Amended Notice of Appeal filed on 28 October 2014 the father relies on Grounds numbered 3 (there are no grounds numbered 1 or 2) to 22. Whilst many of these are not proper grounds of appeal in that they do not particularise the errors contended for; and many of them simply re-state the same or essentially the same proposition, albeit in a different way, as appearing in other grounds.
Whilst we have earlier summarised the chronology of events we now set out in some more detail the context and content of the father’s applications to her Honour to re-open the evidence.
By the application filed on 21 July 2014 the father sought to re-open the evidence in the trial to, inter alia, adduce into evidence two social science articles, namely:
Warshak, Richard A. (2014) “Social science and parenting plans for young children: A consensus report”, , Psychology, Public Policy, and Law, Vol 20(1), Feb 2014, 46-67.
and
Nielsen, Linda (2014), “Woozles: Their Role in Custody Law Reform, Parenting Plans, and Family Court”, Psychology, Public Policy, and Law, Vol 20(2), May 2014, 164-180.
(errors as in original)
The father also sought some specific orders with respect to the expert evidence of the single expert Dr B. At paragraphs 3 and 4 of his application the father sought these orders:
(3)That all those parts of Dr [B] report that speak, directly or indirectly, against the Applicant, or the orders sought by the Applicant, be omitted from evidence. Specifically, but not limited the following paragraphs: 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 40, 43, 44, 45, 46, 49, 51, 54, 55, 57, 58, 59, 60, 61, 64, 65, 70, 71, 74, 77, 78, 86, 88-93, 98, 99, 101, 102, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117-127, 129-135.
(4)That the opinions and statements expressed by Dr [B] that are unfavourable abut [sic] the Applicant, and/or against the Applicant’s Application for [the child] to be allowed to live with his father be excluded from consideration in this matter.
The father also sought to have admitted into evidence an affidavit by a Mr L which contained evidence in relation to the child’s alleged distress on transitioning from the father’s care to the mother’s care.
The father also sought an interim order for the child to live with him and spend time with the mother; and that the father be granted leave to provide material from the proceedings (transcripts, reports, affidavits and exhibits) to unnamed “appropriate professional and statutory authorities and bodies, their members and their staff, who are responsible for the laws, guidelines and conduct of the parties in this case.”
Later, on 23 July 2014, subsequent to the hearing and determination of his first application, the father filed a further Application in a Case. By that application the father sought some 24 orders (of which two were ultimately not pressed). Broadly the father sought:
·that judgment delivery, then foreshadowed to occur on 24 July 2014 (the next day) be stayed until such time as the matters raised in his application are dealt with;
·that he be given leave to re-open his evidence and adduce into evidence the two social science articles (which he sought to adduce in his first application heard on 23 July 2014), and in addition an extra curial statement made by the present Chief Justice of the Family Court of Australia Chief Justice Bryant in March 2014;
·that Dr B be given the opportunity to consider this further evidence and amend his opinion, if necessary;
·that the parties be given leave to amend their ultimate positions as contended for at trial;
·that those parts of Dr B’s initial report which were unfavourable to the applicant or his position be struck out and that the oral evidence given by Dr B at the hearing unfavourable to the applicant or his case be excluded from evidence;
·interim parenting orders in relation to the child, as was sought in his earlier application filed on 21 July 2014;
·that he be permitted to issue subpoena to various named and unnamed entities;
·that a further family report be prepared; and
·that he be granted leave to publish material in this matter to certain named professional organisations including the Psychology Board of Australia and the Commonwealth Attorney-General.
Whilst expressed in a number of different ways in his respective Notices of Appeal and written Summary of Argument, a central contention of the father in these appeals is that the two articles or papers in the field of social science that he sought to have admitted into evidence would demonstrate that the opinions and evidence of the clinical psychologist, Dr B, are fundamentally flawed in important respects and are thus unreliable.
The father’s contention that the evidence of Dr B is unreliable is subject to an important qualification advanced by the father. In his Application in a Case filed on 23 July 2014 the father sought similar orders in paragraphs 8 and 9 in relation to the evidence of Dr B as he had sought in his application filed on 21 July 2014 to which we have earlier referred.
8.That all those parts of Dr [B] original report that speak, directly or indirectly, against the Applicant, or the orders sought by the Applicant, be omitted from evidence. Specifically, but not limited the following paragraphs: 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 40, 43, 44, 45, 46, 49, 51, 54, 55, 57, 58, 59, 60, 61, 64, 65, 70, 71, 74, 77, 78, 86, 88-93, 98, 99, 101, 102, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117-127, 129-135.
9.That the opinions and statements expressed by Dr [B] in the transcript of the 17-19 March 2014 and 2 April 2014, that are unfavourable about the Applicant, and/or against the Applicant’s Application for [the child] to be allowed to live with his father be excluded from consideration in this matter.
It can thus be seen that to this extent the father contended for the adoption of a selective approach as to Dr B’s evidence. That is, anything adverse about, or to, the father or his case advanced by Dr B in his written report or oral evidence be “omitted from evidence” or “be excluded from consideration”, whilst leaving untouched any evidence of Dr B favourable to the father or his case; or unfavourable to the mother and her case.
On the hearing of this application on 24 July 2014 the father did not press the order he had sought to adduce into evidence the extra curial statement made by the Chief Justice and nor did he press the order he had sought for a further family report to be prepared.
Because the trial judge expressly incorporated her Reasons for Judgment delivered on 23 July 2014 into her Reasons for Judgment delivered on 24 July 2014, both sets of Reasons for Judgment need to be considered in assessing the father’s challenges on appeal to the orders made on 24 July 2014.
As already noted, the hearing of the father’s first application to re-open the evidence occurred on 23 July 2014. It is apparent from the consideration of the transcript of that hearing before her Honour, and the father’s submissions before us, that the father sought to have the nominated articles of social science admitted into evidence in order to challenge Dr B’s assessment of the child’s attachments, and the recommendations advanced by him, particularly in relation to the overnight time the child should spend with his father. Specifically, the father asserted then, as he did in argument before us, that Dr B relied upon research conducted by another academic, Dr McIntosh, which research the father contended had been subsequently established to be either erroneous or fraudulent.
In her ex tempore Reasons for Judgment delivered on 23 July 2014 dismissing the father’s first application, her Honour identified, by reference to a number of authorities, the principles relevant to a consideration of an application to
re-open evidence. Her Honour gave particular consideration to authorities concerning academic articles as evidence including by reference to McGregor & McGregor (2012) FLC 93-507. The trial judge summarised, at [8] the relevant considerations, namely:
·the further evidence is so material that the interests of justice require its admission;
·the further evidence, if accepted, would most probably affect the result of the case;
·the further evidence could not by reasonable diligence have been discovered earlier;
·no prejudice would ensue to the other party by reason of the late admission of the further evidence.
It is apparent both from the transcript and the trial judge’s Reasons for Judgment that in the first application the father did not then intend to recall Dr B. At [19] of the first re-opening Reasons for Judgment her Honour observed:
19.The father today said it was not his proposal that these articles be put to Dr [B]. He said that Dr [B] was an expert and further should be aware of this material and chose to keep it from the court. He disputed that Dr [B], in his words, should have the privilege of coming back and “unringing the bell.”
(emphasis as in original)
The Applicant father lacks parental capacity
In support of this complaint, the father refers to it being “agreed evidence”, that is agreed as between the parties, that the child exhibited distress at handovers from the father to the mother and that this constitutes evidence of the child relying upon his father “for security and comfort”. The father contends that this evidence was interpreted by the trial judge as a lack of parental capacity on the part of the father. The father then points to a test carried out by Dr B in his clinical interviews as in some way demonstrating error.
By way of overview, in the manner in which the father argued this complaint, it is clear that the father misapprehends the distinction between demonstrated error on the part of the trial judge on the one hand, and what the father seeks to characterise as error on the part of Dr B. That is, the distinction on the one hand between the trial judge accepting expert evidence or opinion provided by Dr B which it was open to the trial judge to accept and, on the other hand, challenges or complaints about the methodology of Dr B.
Whilst there was no dispute between the parties on their respective evidence that the child exhibited the distress the father seeks to emphasise in the period between separation and up until July 2013, it was the mother’s case, and thus in issue, that this improved from July 2013 and was no longer a feature as at the end of 2013.
The trial judge undertook a detailed discussion of parenting capacity, by reference to s 60CC(3)(f) of the Act, commencing at [144] and continuing to [193] of her parenting Reasons for Judgment. Whilst the whole of that discussion is relevant to this complaint, as indeed are many other parts of the parenting Reasons for Judgment, we note in particular the following discussion by the trial judge at [176] to [181] of her Reasons for Judgment:
176.Both parents agreed that [the child] had been very distressed at changeover between them. The mother in her affidavit when describing how [the child] had become hysterical and cried and took half an hour to settle on changeover, added that she “had no explanation for this”, other than to query whether the father agitated him in some way. The mother referred to occasions when she had arrived at the father’s home to collect [the child] when [the child] had only recently awakened from a sleep and when the father had him cradled in his arms. She suggested that the father did not take the steps which would assist [the child] feel settled when he was returned to her care. In her affidavit she set out the ways in which she said she prepared [the child] to be returned to his father.
177.At hearing, the mother’s evidence was that [the child] had remained very stressed on coming into her care up to July 2013 and had not completely appeared settled until December 2013. As discussed, both parents reported that more recently [the child’s] distress had significantly reduced. Dr [B] related this to his increasing age and maturity and to “ongoing exposure/desensitisation to the repeated transition process.”
178.In his report, Dr [B] in referring to the distress which [the child] had exhibited when his father returned him to his mother, suggested that a number of factors were at play. He expressed the opinion that the mother’s reported inability to soothe [the child] could be due to her own emotional dysregulation and high elevated anxiety resulting from contact with the father which could disrupt her capacity to soothe and care for [the child]. Another alternative, which he said both parents failed to grasp, was that the child was “struggling to make sense of his changing world and has difficulty traversing the changeover process, and communicates that as best he can at his age – through distress.” Logically, he said, there would not be a single causal explanation but a combination of the factors he mentioned and other factors as well. His opinion, too, was that the late time in the day when [the child] was at times returned by the father to the mother after collection from child care, coincided with a time when children’s behaviour was likely to be adversely affected by tiredness.
179.Dr [B] added that in a number of different ways he had tried to discuss with the father whether he was actually looking at the distress from [the child’s] perspective as opposed to his perception of [the child’s] distress.
180.Dr [B] observed that the father was quite emotionally distressed by the restriction on the time he could spend with [the child] and that his own anxiety would have been escalated. [The child], he said, would have been obviously disrupted and unsettled in the transitions between his residence and the mother’s home and had his own transition stress to handle together with the competing elements of his two attachment figures.
181.There seems little doubt that at least one of the factors at play in [the child’s] distress at changeover was the anxiety of each of his parents which was something neither seemed to explicitly recognise.
(emphasis as in original) (footnotes omitted)
We also note that the trial judge concluded her extensive discussion of parental capacity with the following at [193] of the parenting Reasons for Judgment:
193.The court finds that both parents have adhered to their own positions and in doing this have had difficulty in prioritising [the child’s] emotional needs. This impacts adversely on the parental capacity of each of the parents. While both parents are critical of the other, Dr [B] found the father to be more critical of the mother than she was of him, and also to be more inflexible than the mother. The evidence supports this assessment. Such characteristics of the father referred to above are further factors which are likely to impact adversely on his parental capacity.
Notably, as was pointed out to the father during argument before us, the finding in [193] above was not that the father lacked parenting capacity but that there were factors which are likely to impact adversely on his parental capacity and likewise the trial judge found that to be so with respect to the mother.
As to the father’s complaints concerning what is described as the “stranger separation test” undertaken by Dr B, this aspect was also discussed at some length by the trial judge in her parenting Reasons for Judgment at [78] to [86].
The father’s complaint to the effect that the trial judge misinterpreted or misapplied the evidence concerning this test lacks any substance when regard is had to the ultimate finding the trial judge recorded at [86] of the parenting Reasons for Judgment as follows:
86.When Dr [B] was asked how much his conclusions relied on this test observation, he responded “not a great deal” and that he was highlighting that at this point of time [the child] had a primary attachment figure and a very clearly identifiable attachment to his father that was developing very positively. He agreed that the test he conducted was an abbreviated one. He conceded, too, that [the child’s] strong reaction when his mother left could indicate an anxious attachment. He agreed that there were some complexities in this use of the observation. He also said that his opinion about the mother being the primary attachment figure did not stand only on this observation. Certainly, given the concessions made by Dr [B], the court would be careful in the weight given to an opinion relying solely on the test, as conducted by him.
(emphasis as in original)
Finally with respect to this complaint, we reiterate, as earlier discussed, that despite Dr B’s opinion the trial judge did not make a finding that the mother was the child’s primary attachment figure.
The Respondent mother is the primary parent
Again, with respect to this complaint the father refers to the test to which we have already made reference. Otherwise, this complaint fails at the threshold because, again as earlier discussed, the findings the trial judge made in relation to the competing contentions of the parties that each was the primary attachment figure did not include a finding that the mother was the primary attachment figure.
So much was ultimately conceded by the father in the course of argument of the appeals. There is thus no substance in this complaint.
The joint stranger-fear/parent-trust test
We have already referred to the trial judge’s discussion of this topic. We would only add to what we have already said that the trial judge returned to this topic at [127] of her parenting Reasons for Judgment as follows:
127.The separation test conducted by Dr [B] has been referred to previously. It clearly was an abbreviated test and [the child] had spent more time in Dr [B] presence before his father left than had been the case when his mother left the room. Dr [B’s] opinion was that [the child’s] primary attachment was to his mother. He said that he relied on factors other than the test in forming this opinion. He said that effectively [the child] had only known the care environment provided by the mother. The father challenged this and observed that [the child] had been staying at his house since March or April 2013 and had spent four nights there. Dr [B] corrected himself and referred to the mother’s care environment being [the child’s] primary environment which the evidence indicates is the case.
Once again, as already discussed the trial judge did not make a finding that the mother was the child’s primary attachment figure.
There is no substance in this complaint.
The Respondent mother sought to establish Applicant and Respondent as foster parents of A with A’s mother’s consent
The mother’s evidence in relation to A is contained in her affidavit relied upon at trial which was filed on 5 March 2014. At paragraphs 99 to 105 of that affidavit the mother provided evidence that A had been a child to whom the mother provided assistance as a foster parent; that A was a part of the mother’s life for three years; that the mother ceased her relationship with A after the birth of the child the subject of these proceedings; and that the mother did not wish to cease her relationship with A but did so at the father’s urging. In that evidence the mother acknowledged that in or about December 2011 the mother introduced A to the subject child against the father’s wishes.
It was plain from the cross-examination of the father by the mother’s counsel on this issue that the father did seek the discontinuance of the relationship between the mother and A.
However, the father did not direct any cross-examination of the mother to any issue concerning A. Further, no final submissions made by the father at trial addressed any issue with respect to A.
There was no evidence whatsoever of the father’s claim of the mother’s “willingness to usurp [A’s] mother as a parent”, and no such challenge was put to the mother in the course of her cross-examination at trial.
In the above context the trial judge dealt with the evidence regarding A at [168] to [170] of the parenting Reasons for Judgment.
There is no substance in this complaint.
Contradictory findings based on same evidence
In support of this complaint the father’s Summary of Argument simply makes the reference “see 6 and 8”. We have already dealt with those complaints and find no merit in the contention that the trial judge made contradictory findings on the same evidence.
Judge Walker provides no reasons for rejecting the orders sought by Applicant father regarding communication/mediation mechanisms
Judge Walker provides no reasons for rejecting the orders sought by Applicant father providing for the child to have input as he grows older
It is convenient to deal with both of these complaints together.
At [205] of the parenting Reasons for Judgment the trial judge specifically considered the father’s proposals for what is described as “Periodic Review” and rejected them. Her Honour said:
205.The father referred to the fact that he also sought an order for sole parental responsibility for [the child] but he contended that in seeking such an order he was not diminishing the mother’s role in [the child’s] life or her role in making decisions about his future. He described his orders as suggesting mediation, communication and working in collaboration to best address [the child’s] needs. The father contended that once the mother was no longer in the position where she could consider that she alone had the right to make decisions about [the child], she would have the incentive needed to commit to participating in decision making about [the child]. The father’s proposals for a Periodic Review have been set out previously in the judgment. He proposed that in the event the mother did not participate in any of these communications that he would make decisions on any issues which at the time related to [the child]. Dr [B’s] assessment of the father was that he was “resistant to considering perspectives other than his own.” The court has accepted this assessment. This of itself indicates some difficulty with the father’s submissions about the collaborative model he described.
(emphasis as in original)
Plainly the trial judge provided specific reasons for rejecting the orders sought by the father, and there is no substance in the complaint in paragraph 11 of the father’s Summary of Argument.
We observe in relation to the complaint in paragraph 12 that there is ample authority for the proposition that a trial judge is not obliged to engage with each and every issue a party chooses to agitate in proceedings (see, for example, Wen & Thom [2010] FamCAFC 81).
Moreover, it must be remembered that as at the time of the trial this child was only three and a half years of age. It may fairly be observed that there is ample authority for the proposition that long-term prospects for any child are often difficult to predict, and the more difficult they are to predict in a particular case the more the Court is likely to concentrate on more immediate matters. In Hall and Hall (1979) FLC 90-713 the Full Court said (at p 78, 824):
… It is permissible for any court to take a longer view of a child’s future than the immediate picture before it; but this must be done with caution. In the end the decision must accord with the overall welfare of the child. It might not always be legitimate to look so far into the future that a child should be taken from surroundings where he is well and happy, and placed in other surroundings, on some conjectural basis that in the ultimate he will prosper better in the latter surroundings …
The authorities suggest that the age of the child is highly relevant to whether the Court will focus on the shorter or longer term. Sanders and Sanders (1976) FLC 90-078 is authority for the proposition that the future is so difficult to predict in the case of very young children that the Court ought concentrate on the immediate future (see also Raby and Raby (1976) FLC 90-104 and CA. v. CH. (1984) FLC 91-523).
In our judgment, when read as a whole, the parenting Reasons for Judgment of the trial judge demonstrate ample consideration of the proposals of each of the parties and reflect more than adequate reasoning for the parenting orders ultimately made.
We find no substance in this complaint.
Judge Walker does not address in the reasons the demonstrated ability and willingness of each parent to promote the child’s relationship with the other
In the course of argument before us, we confirmed with the father that this complaint was expressed in terms of the now repealed subsection (4) of s 60CC of the Act. That subsection was repealed by an amending Act which took effect from 7 June 2012 prior to the institution of the parenting proceedings in the Federal Circuit Court, and thus did not apply to them.
Nevertheless, the father contended that this ought to have been addressed by the trial judge.
The trial judge’s parenting Reasons for Judgment under the heading “[b]ackground” address in detail from [2] and following the relevant history of the parties leading to trial including many instances of conflicts that arose between them. That included, for example, the significant conflict between them concerning the mother’s father. It also included discussion of the mother taking the child overseas without the father’s knowledge or consent, a matter specifically agitated by the father in support of this complaint. The trial judge made a specific finding in relation to this at [41] that this incident “aggravated the lack of trust and hostility between the parents.”
Aside from that detailed discussion of the background, we have earlier referred to the detailed consideration the trial judge gave when addressing s 60CC(3)(f).
When regard is had to that discussion and indeed when the parenting Reasons for Judgment are viewed as a whole, we fail to see how it could be contended that the trial judge did not address each parent’s attitude to the other in terms of the other’s relationship with the child. Indeed, that is a consistent theme throughout the parenting Reasons for Judgment.
There is no substance in this complaint.
Family violence
In support of this complaint the father’s Summary of Argument contains the following single sentence:
Evidence in the circumstances and conduct of the Respondent mother – courts consider fathers raising such concerns as evidence of conflict that warrants the State ordering their child be prevented from living with them.
In the manner in which this is expressed it seems clear enough that the father agitates that he did not raise matters he otherwise might have raised because of the perceived risk referred to in the above statement. This does not demonstrate error on the part of the trial judge.
At the commencement of the trial the trial judge specifically raised with the father whether he thought that the child “… needs to be protected from physical or psychological harm from being subjected to or exposed to … neglect of [sic] family violence?” The father answered “[n]o your Honour”. (Transcript 17.3.14, page 13, lines 4-8)
The father made no submissions in his final submissions at trial to the effect that the trial judge needed to take into account family violence. It is thus unsurprising that in the trial judge’s discussion of s 60CC(2)(b) appearing at [110] to [113] of the parenting Reasons for Judgment, the trial judge found there is no likelihood of the child being abused or neglected in either household and that neither party submitted this to be a relevant consideration. The trial judge’s ultimate finding in this respect recorded at [113] was as follows:
113.This is a matter where on the evidence before it, the court finds that [the child] does not need to be protected from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
(errors as in original)
It is thus clear that this complaint is no more or less than an attempt by the father to agitate on appeal a matter he did not agitate in the trial. It is not legitimate for him do so and there is no substance in this complaint (University of Wollongongv Metwally (1985) 60 ALR 68).
Orders are age inappropriate for the child
The father’s complaint is that the orders made by the trial judge do not address the child’s changing responsibilities after Bar Mitzvah at age 13, and it is contended that the orders “[p]rovide no mechanism for the child’s input before age 18”.
Save for the child’s education, the trial judge made an order for the parents to have equal shared parental responsibility for the child (order 1). Whilst order 2 provided for decisions about major long-term issues concerning the child’s education to be made by the mother, that order also imposed upon the mother an obligation to consult with the father about such decisions. There are other provisions within order 2 as to imposing obligations upon each party both to advise and consult each other.
We have earlier addressed the complaints in paragraphs 11 and 12 of the father’s Summary of Argument and we need not repeat that discussion, but simply reiterate it.
We only need add that the parenting Reasons for Judgment reflect careful consideration of future aspects concerning the child, and the trial judge adequately dealt with those issues to the extent to which she could reasonably be expected to so do given the tender age of this child as at the time of trial.
We find no substance in the complaint that the orders the trial judge made were “age inappropriate”.
Orders marginalise the father as a parent in the child’s life
At [227] to [237] of the parenting Reasons for Judgment, in circumstances where the trial judge proposed to make an order for the parents to have equal shared parental responsibility, the trial judge gave specific consideration to orders for equal time and substantial and significant time.
We have earlier in these Reasons for Judgment set out the effect of the parenting orders ultimately made by the trial judge. Having regard to the order as to equal shared parental responsibility, and the provisions for time with the father increasing quickly and commensurately with the child’s age, we fail to see how an order ultimately providing for the child to spend five nights per fortnight with the father, as well as half of school holiday periods, can be interpreted as having the effect of marginalising the father as a parent.
The complaint agitated within this paragraph to the effect that the trial judge permitted the mother to substitute text messages from her for “contact” with the child while on holidays is a misrepresentation of the orders the trial judge made. The specific order made imposed an obligation on each party, whenever they take the child outside of Australia, to cause the child to Skype or text the other party every third day.
At [229] of the parenting Reasons for Judgment the trial judge gave specific consideration to an order being made for the child to spend equal time with the parents when he was older, but explained why she rejected such a potential order on the basis that there was little trust between the parents. At [236] of the Reasons the trial judge stated:
236.As discussed, Dr [B] raised the possibility of [the child’s] time with his father being increased to three days each week or eight days each fortnight when he started school, depending on the capacity of the parents to cooperate constructively. Sadly, neither parent has demonstrated such a capacity, even in the most recent incident involving medical referral. The court has found that it is likely that the parents will continue to be in dispute over many matters and that this is likely to adversely impact on [the child] into the future. At hearing, when Dr [B] was asked if the mother’s proposal that over time [the child] would spend five nights a fortnight with his father during school term and half school holidays, would in any way be detrimental to [the child’s] relationship with his father, he responded that it would not be to [the child’s] detriment and that he presumed it would be to his benefit.
We consider that the Reasons of the trial judge as a whole, and in particular the discussion by the trial judge at [227] to [237] concerning the time the child is to spend with the father, amply explain the path by which the trial judge reached her ultimate conclusion as to the orders to be made in the child’s best interests.
We find no merit in the complaint that such orders marginalise the father as a parent.
Orders eliminate the child’s primary carer, and parent he relies on for comfort and security, as a parent of the child
For the reasons we have already discussed in addressing each of the complaints in the father’s Summary of Argument we find no substance in this complaint which, beyond the above heading, is not further addressed in the father’s Summary of Argument.
conclusion
We found no merit in any of the complaints agitated by the father with respect to the re-opening appeal, and confirm that that appeal will be dismissed.
With respect to the parenting appeal, as we find that there is no merit in any of the complaints agitated by the father, the parenting appeal must also be dismissed.
costs
At the conclusion of the hearing of these appeals we sought submissions as to costs.
Counsel for the mother submitted that in the event the appeals were dismissed costs ought follow the event. The mother sought her costs of each of the Applications in an Appeal earlier referred to, and her costs in respect of each of the parenting appeal and the re-opening appeal.
It was submitted on behalf of the mother that she holds no assets of substance and lives in rental accommodation and derives an income of $60,000 per annum.
The father opposed the making of any orders for costs in favour of the mother, even if his appeals were unsuccessful, essentially on the contention that there was some merit in the appeals.
The father confirmed that he holds no assets of substance but that when he is in employment he is able to derive an income of about $120,000 per annum.
Plainly, the mother has been wholly successful in respect of both appeals. Whilst the father contended that his Applications in a Case might have been determined on the papers, the fact is that they necessarily involved the mother in incurring costs.
We consider that where the mother has been wholly successful, costs ought follow the event in circumstances where neither of these appeals had any merit.
There will be an order for costs in favour of the mother in respect of each of the Applications in an Appeal filed on 8 September 2014 and 19 December 2014 respectively; and in respect of both appeal proceedings.
We propose to order that the parties file written submissions in respect of costs of each of the Applications in an Appeal filed on 27 July 2015 and 16 February 2016 respectively.
I certify that the preceding two-hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Kent JJ) delivered on 15 April 2016.
Associate:
Date: 15 April 2016
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