VAN BASTEN & HUMBOLDT
[2017] FamCAFC 212
•5 October 2017
FAMILY COURT OF AUSTRALIA
| VAN BASTEN & HUMBOLDT | [2017] FamCAFC 212 |
| FAMILY LAW – APPEAL – PARENTING – Alleged errors of fact – Where the errors, if there are any, are not material – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the evidence was available at the time of the trial but not tendered by the father – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Allan and Ors & Allan and Ors (2014) FLC 93-606 CDJ v VAJ (1998) 197 CLR 172 De Winter and De Winter (1979) FLC 90-605 Gilbert v Estate of the late Gilbert (1990) FLC 92-125 Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 |
| APPELLANT: | Mr Van Basten |
| RESPONDENT: | Ms Humboldt |
| INDEPENDENT CHILDREN’S LAWYER: | Clark Family Lawyers |
| FILE NUMBER: | MLC | 10657 | of | 2015 |
| APPEAL NUMBER: | SOA | 33 | of | 2017 |
| DATE DELIVERED: | 5 October 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thackray, Aldridge & Bennett JJ |
| HEARING DATE: | 5 October 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 April 2017 |
| LOWER COURT MNC: | [2017] FamCA 464 |
REPRESENTATION
| THE APPELLANT: | Did not appear |
| THE RESPONDENT: | Did not participate |
| THE INDEPENDENT CHILDREN’S LAWYER: | Did not participate |
Orders
The Application in an Appeal filed on 20 September 2017 be dismissed.
Appeal SOA 33 of 2017 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Basten & Humboldt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 33 of 2017
File Number: MLC 10657 of 2015
| Mr Van Basten |
Appellant
And
| Ms Humboldt |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Aldridge J
Mr Van Basten (“the father”) appeals against parenting orders made by Macmillan J on 26 April 2017.
When we arrived in court this morning to hear the appeal the father was not present. We were informed, however, that he was present in the building. Accordingly we asked the court staff to inform him that if he did not return to court with them, the appeal would proceed in his absence. He did not do so. We then stood the matter down for consideration of his quite detailed Summary of Argument.
Neither Ms Humboldt (“the mother”) nor the Independent Children’s Lawyer (“the ICL”) attended on the hearing of the appeal or provided the Court with a Summary of Argument.
The father and mother have a child, B, who was born in 2009. The orders of the primary judge provided for the mother to have sole parental responsibility for the child who was to live with the mother. No orders were made for the child to spend time with the father, save that there was an order that the mother permit the child to telephone the father upon the child requesting to do so. There was also an order that the mother was to authorise any school the child may attend to provide copies of the child’s school reports upon the father’s request for the same and at his expense.
Each of these orders was described as being made by consent, although that is a position the father now challenges. The father also asserts that the primary judge made a number of factual errors, that the parties were “not given records to rely on”, that the primary judge erred in relying upon the family reports and finally that “upon perusing the trial’s Court audio recordings, incomplete audio records are found”.
The primary judge recorded that the parties had what could best be described as a brief relationship although they did not live together (at [11]). Their relationship ended in February 2009 when the mother was approximately four months pregnant. The father saw the child twice at the hospital shortly after her birth and then did not see the child at all for 15 months (at [12]).
In or about September 2010 the parties agreed on a parenting plan which provided for the father to spend an initial period of supervised time with the child commencing that same month. The parties continued to engage in family dispute resolution agreeing upon a number of further parenting plans. The final parenting plan, agreed on 30 May 2013, provided for the child to spend from 10.15 am Saturday to 10.15 am Sunday each alternate weekend, from 10.15 am to 7.30 pm on the intervening Saturday, from 11.30 am to 4.00 pm each Tuesday, from 11.30 am each Thursday until Friday morning drop off at crèche and at times during the school holidays by agreement.
The primary judge found that the child last spent time with the father on 16 May 2014. Her Honour found that one of the reasons for the breakdown in the arrangements was a disagreement as to where changeover should take place, with the father wanting changeover to take place outside the police station and the mother proposing that it be at a local café (at [19]).
On 9 December 2015 orders were made which provided for the child to spend supervised time with the father at F Town Contact Centre (“the contact centre”) at times to be nominated by the contact centre. That time did not take place. The mother gave evidence that she took the child to the contact centre on three occasions and on the fourth could not get the child to accompany her.
The appeal
The father relies on the following grounds of appeal (as per the original):
1.No agreement nor consent was given by the applicant, to consent orders.
2.
Errors were found in the reasons for judgement, based on the evidences in chief/affidavits, and the given evidences of/by the parties;
Errors (factual) contained in the reasons for judgement.
3.Several parties were not given records to rely on, or were not given in timely manner at the proceedings.
4.Upon perusing the court audio records, incomplete audio records are found. Upon perusing the trials’ court audio recordings, incomplete audio records are found.
5.Error to rely on the Family Reports in the findings of the reasons for judgement.
Were the orders made by consent?
The difficulties in appealing from consent orders are well known. The fact that orders were made by consent makes it difficult for the appellant to demonstrate error on behalf of the judge who made them. Rather, the authorities establish that the appellant must show that his consent to those orders was in some way vitiated, for example, by fraud, mistake or misrepresentation (Gilbert v Estate of the late Gilbert (1990) FLC 92-125 at 77,839; Allan and Ors & Allan and Ors (2014) FLC 93-606 at 79,507). Here, the father simply asserts that he ultimately stated to the Court that there was no agreement and no consent to the proposed orders.
In order to understand the father’s assertion it is necessary to give some background. According to the primary judge, the father’s position at the hearing was:
2.… Ultimately when the hearing commenced before me in February 2017, although the father was still seeking an order for equal shared parental responsibility, his application was for the child to spend time with him. By the conclusion of the hearing before me, the father had adopted the Independent Children’s Lawyer’s proposal including that the mother have sole parental responsibility for the child and that the child live with her. The only issue the Court was required to determine was what, if any, time the child should spend with the father.
3.The father’s final position was that the child should spend time with him every Thursday from after school until the commencement of school on Friday and on a fortnightly basis from 10.00 am Sunday until the commencement of school on Monday each alternate week and from after school Monday until the commencement of school Tuesday in the other week.
4.The mother’s case was that no orders should be made for the child to spend any time with the father.
It is clear, however, that the primary judge was concerned to identify precisely the father’s position as to the various proposals before the Court. At the conclusion of the submissions of the ICL, the father was given time to consider his position and to indicate to the Court the extent, if any, to which he agreed with the orders proposed by the ICL. He was given further time to consider his position after the mother’s submissions concluded.
After the first period of time given to the father for consideration but before the second, the following exchange took place:
HER HONOUR: Yes, and – but what I’m wanting to know is, you handed me a minute this morning ‑ ‑ ‑
[THE FATHER]: Yes.
HER HONOUR: ‑ ‑ ‑ which was that you wanted to spend every Thursday, from 9 am till – Thursday until the Friday at 10 am; every Sunday from 10 am until Monday, 3 pm; and every alternate Monday from 9 am until Tuesday 9 am. Is that what you’re still seeking?
[THE FATHER]: Well, ideally, if the court believes that ..... risk to the child, I definitely would like to go that way. However, if there’s no – if the court doesn’t deem, after all the hearings, and the evidence presented, that there’s no risk to the child, then I will support the draft orders of Ms Bonnie [sic – Bonney]. However, I am hoping that included will be orders 18, 19 and 20 that are sought.
(Transcript 15 February 2017, p.33)
There then ensued some considerable discussion between the bench and the father about his concerns about the mother’s care of the child (which he asserted to be the mother’s continuing difficulties with alcohol and the sexualised behaviour of the child). The transcript then continued:
HER HONOUR: So – and if – if I find I am not satisfied, on the balance of probabilities, as to these risks ‑ ‑ ‑
[THE FATHER]: Yes, your Honour.
HER HONOUR: ‑ ‑ ‑ Then you would – you don’t oppose the orders sought by – that are proposed by Ms Bonnie’s client ‑ ‑ ‑
[THE FATHER]: That’s correct.
HER HONOUR: ‑ ‑ ‑ But you – you do seek orders ‑ ‑ ‑
[THE FATHER]: I seek additional orders to that if possible, and ‑ ‑ ‑
(Transcript 15 February 2017, p.37)
The transcript reveals that the further orders referred to were Orders 18, 19 and 20 which were contained in the document that had been handed to her Honour earlier that day. These orders, if made, would have restrained the parents from showing the child any documents relating to the proceedings or discussing the proceedings with her. The document also sought an order that the parents and the child’s half siblings be restrained from denigrating or belittling the other parent in the child’s presence.
Her Honour then, quite reasonably, formed the view that the orders then being proposed by the father were substantially the same as those proposed by the ICL. Those proposed orders did not provide for the child to spend time with the father.
The primary judge again asked the father to consider his position and at 12.42 pm the matter was adjourned. It was resumed at 2.22 pm. The father asked the Court to decide the issue. This led to the following exchange:
HER HONOUR: What’s your proposal?
[THE FATHER]: It will still be points 1 till 6 of Ms Bonnie’s proposal. It still will be also the non-denigration ‑ ‑ ‑
HER HONOUR: But 1 to 6 includes not spending time with you. So that’s – that’s ‑ ‑ ‑
[THE FATHER]: Yes, your Honour.
HER HONOUR: I’m not clear on what your position is in relation to that. And you’re not – you don’t have to agree, all right.
[THE FATHER]: No. No. I ‑ ‑ ‑
HER HONOUR: You understand that, don’t you?
[THE FATHER]: Yes.
HER HONOUR: Yes. But what I do need to know is what – if I’m going to have to write a judgment I need to know what proposals I’m considering. Is – firstly, let’s start and see if we can – parental responsibility, what’s your position on that?
[THE FATHER]: .....
HER HONOUR: You say you agree with Ms Bonnie’s. Ms Bonnie’s is that the mother have sole parental responsibility.
[THE FATHER]: Your Honour, I will have to agree with that.
HER HONOUR: All right. So that’s paragraph 1. Paragraph 2, which I don’t think is controversial because it – is that the child live with the mother.
[THE FATHER]: It’s – that’s correct.
HER HONOUR: That’s not controversial. Paragraph 3 is that the child spend no time with the father. Let’s come back to that. 4:
The child may telephone the father when the child requests to do so.
You agree with that?
[THE FATHER]: Yes, your Honour.
HER HONOUR: And obviously – well ‑ ‑ ‑
[THE FATHER]: Number 5.
HER HONOUR: I assume you will agree with 5 which is ‑ ‑ ‑
[THE FATHER]: Yes.
HER HONOUR: ‑ ‑ ‑ requiring the mother to authorise the school.
[THE FATHER]: Yes, your Honour.
HER HONOUR: All right. It’s common ground that there will be what we call a non-denigration order.
[THE FATHER]: Yes, your Honour.
HER HONOUR: And the final one, which is 6 on Ms Bonnie’s, is that the independent children’s lawyer be hereby discharged. That’s just procedural.
[THE FATHER]: Yes.
(Transcript 15 February 2017, pp.42-43)
The orders referred to are in fact the orders that were made by the primary judge and as can be seen they were consented to by the father.
That, however, was not the end of the matter. It became plain that, whilst agreeing to the orders that were in fact made, the father also sought an order that the child spend time with him, as is abundantly clear from the following passage:
HER HONOUR: So the issue I’m determining is whether or not you should be spending any time with the child, yes?
[THE FATHER]: Yes, your Honour.
(Transcript 15 February 2017, p.45)
Thus the transcript clearly demonstrates that her Honour was correct in summarising the father’s position in the passage I quoted at the outset of the consideration of this ground.
When one turns to her Honour’s reasons it can be seen that after setting out the evidence and, in particular, the expert evidence as to the father’s behaviour, her Honour identified the legal principles to be applied. Then under the heading of “Discussion” the primary judge considered at some length and took into account the following matters:
·The child’s relationship with the father;
·The father’s state of housing;
·Parenting capacity and insight into the needs of the child; and
·The child’s attitude towards the father.
The primary judge considered each of these matters favoured the child living with the mother and having no contact with the father. This led her Honour to conclude:
80.In all of the circumstances I am not satisfied that the child would benefit from a relationship with the father and that any attempt to re-introduce the father into her life could place her at significant risk of further emotional trauma. The parties have agreed that the mother should have sole parental responsibility for the child and that the child should live with her. Although I am satisfied that it is in the child’s best interests to make the orders the parties have agreed upon, I am not satisfied that it would be in the child’s best interests at this time to accede to the father’s application that she spend time with him either face to face or otherwise, even if that time were to be supervised.
Thus while her Honour made the orders that were described by consent, her Honour did so only after careful consideration of whether those orders were in the best interests of the child. Indeed it is apparent from her Honour’s reasons that the finding that it was in the best interests of the child for the mother to have sole parental responsibility for the child and that she live with the mother were made as a result of that consideration and not as a result of the father’s consent. Those orders would have been made, whether or not they were made by consent.
In any event, it is clear that the father consented to the orders that were made, subject to the qualification that the primary judge still had to consider his application for the child to spend time with him. Further, not only do I not see any error, I do not consider that the issue as to whether the orders were by made consent or not was at all material to the outcome.
This ground does not succeed.
Were there factual errors in the judgment?
The father submits that the following factual errors appear in the judgment:
·The child was described as eight years of age, whereas she should have been described as being seven and a half years of age;
·The finding that the date of separation was “the same date upon which his former partner had ended their relationship” was not common ground;
·The father visited the child on the day of her birth, not two days later;
·There was no common ground that the mother’s solicitor advised the father that he was the parent of the child;
·The primary judge incorrectly described the father as consenting without admission to “an intervention order” whereas it should have been described as an “undertaking without admission”;
·There was no common ground that the child ceased spending time with the father because the parties could not agree on a venue for changeover; and
·The primary judge’s reference to the child suffering a broken arm was incorrect and her Honour should have found there was a “greenstick fracture” instead.
I do not accept that each of the asserted errors is in fact an error by the primary judge. Indeed, many of the complaints that her Honour erred in finding that facts were “common ground” are to some degree mistaken because in making the relevant finding the primary judge was relying on unchallenged evidence. However even accepting for the moment that the father’s assertions are correct, there is no materiality in any of these alleged errors and had the matters been recorded as the father asserts there would have been absolutely no difference to the outcome. None of the asserted errors is of any relevance to the matters in issue: see De Winter and De Winter (1979) FLC 90-605.
In my opinion, this ground does not succeed.
Were several parties not given records to rely on or given records in a timely manner?
The complaint by the father appears to be that the ICL and counsel briefed by the ICL did not inspect subpoenas. He further asserts that the parents’ psychometric test results were not filed in the Court by the ICL for inspection and that the contact centre notes were not given to the father. The father also complains that the family reports were provided late, as were case outlines.
It is difficult to know what to make of this. The father was at liberty to seek to inspect the subpoenaed documents himself and to tender any material he thought relevant.
Further, the father seems to have made no complaint to the primary judge of the kind he now makes to us and he did not seek any adjournment to enable any of the steps to take place. It is therefore impossible to identify any error on behalf of the primary judge and again, in my opinion, this ground does not succeed.
Are the Court audio recordings incomplete?
The father asserts that a number of excerpts of the Court audio recordings of the evidence of the hearing are not to be found in the transcripts. However when regard is had to the submissions the father’s complaint seems to be that material that appears in the transcripts in a number of places is not to be found in the audio recordings – presumably the father seeks to imply that that evidence must have been added by someone subsequent to the hearing.
In any event, there is no suggestion of any error on the part of the primary judge. None of the matters raised by the father in his Summary of Argument suggest that any errors in the transcript are matters of substance.
In my opinion this ground fails.
Did the primary judge err in relying on the family reports?
The family consultant, Dr N, prepared two reports which were relied upon by her Honour in coming to the views that she did.
The father submitted that the reports should not have been accorded such weight because although the family consultant referred to the child suffering from trauma, the cause of that trauma could not be identified by the family consultant. The father also asserted that the opinions of Associate Professor E should have been preferred. Associate Professor E had conducted an assessment of the father and found that there was no impairment of the father’s insight or judgment due to any psychiatric cause.
Her Honour said:
29.When the father filed his Amended Initiating Application he was seeking equal shared parental responsibility and equal time with the child. However, it is difficult to reconcile his application for a shared parenting arrangement with his Trial Affidavit upon which he now relies, which is highly critical of the mother. Dr N described that Affidavit as
a voluminous but seemingly disjointed and rambling dossier, as well as in his repeated central theme of the mother’s alcoholism throughout the dossier at a time now 6 or 7 years post the mother’s open admittance of such behaviour, the writer gleaned a sense of the father still embittered and holding on to the past and in such it appears that he has an attitude approximating a person hard done by if not bordering upon a persecution complex; he has a sense of entitlement that has been unfairly denied him and he gave the impression in his writing of having some obsessive if not fixated personality traits.
Dr N concluded based upon both the material relied upon by the father and his interviews with the father that “the father appears to be stuck in the past and still trying to blame the mother or find severe fault with her as a person and mother.” This is consistent with my observations of the father’s affidavit evidence, his oral evidence and the way in which he conducted his case.
…
32.Not only did the father not point to any evidence in support of his assertion that the mother has an ongoing problem with alcohol or more generally is a neglectful and poor parent, the evidence I do have suggests that the opposite is the case. Dr N in his first family report said that the principal of the child’s school had advised him that
…usually the mother but occasionally her older daughter [Ms C] would bring or pick up the child from school. He said the child was always on time, she was always immaculately groomed, she was very happy and polite, academically was doing well and she had many friends…. He also said the mother also played a regular role in helping the school with activities and was widely well regarded in the [J Town] community.
33.Dr N also said that the mother had been described by her psychologist in her report dated 23 November 2015 as “…a competent and dedicated mother who has freely admitted to her flaws (at times excess alcohol use) and who appears to have shown good insight to deal with many extremely stressful recent events in her life (including the tragic loss of both her parents).” The father also acknowledged having attended a meeting with the principal of the school early this year during which the principal summarised the child’s school reports for the 2016 year indicating to him that she was doing well at school.
34.The father’s allegations with respect to the alleged sexual abuse were not only not supportive of a finding to that effect, but highlighted the concerns raised by Dr N with respect to his grasp on reality and my concerns about his ability to focus on the welfare of the child and the issues in the case.
35.The allegations themselves and the father’s focus on those allegations were at times quite strange and he seemed disconnected from reality. The father relied upon what he described as the child’s explicit sexual behaviour in support of his allegation that she had been sexually abused by her half-brother. However the father also deposed that in July 2013 when the child was four years of age he booked an appointment with the child’s general practitioner for himself, the mother and the child during which he said that the general practitioner explained to them that the child’s behaviour was quite natural for her age. …
…
41.I am not satisfied on the balance of probabilities on the evidence before me that there is any risk to the child in the mother’s care either because of the mother’s alleged alcohol abuse or because of the risk of sexual abuse. To the contrary the evidence leads me to conclude that the mother is a capable and insightful parent.
Importantly, under the heading “Child’s attitude towards the father” the primary judge said:
69.When Dr N interviewed the child for the purposes of his first report he described her as “a very nervous and hesitant child” and said that she would not go into his room without her half-sister being there. He said that she was on the verge of tears throughout the interview and said in response to questions she was asked about the father that “I don’t like him” or “I don’t feel safe with him”, “he scares me”, “I don’t want to see him at all” and finally that “I was sick this morning cos I thought I had to see Dad”.
70.When Dr N asked her whether she thought that in the future she might change her mind, he says she said “No…I don’t want to stay with him, I just want to stay with Mum” whereupon she burst into tears. Dr N said that “perceiving her rapidly heightening distress” he terminated the interview. He also remarked that the relief on her face when she left the room was quite “palpable”.
71.Dr N reported that he did not interview the child for the purposes of his second report because of the look of what he described as “sheer dread” on her face when she thought it was her turn to be interviewed and that when he told her he would not be interviewing her, her face immediately relaxed and she thanked him.
72.In cross-examination Dr N described the child as exhibiting symptoms consistent with a fairly deep rooted state of distress, if not psychological or emotional trauma. It was his evidence that when children experience trauma at a young age it can become deeply entrenched and that the reason he did not interview the child for the purposes of his second report was because of his concern that to do so might only add to that trauma.
The father’s submission in his Summary of Argument is as follows:
37.Trauma has not been established. I question whether during the child’s first 5 years of the mother’s drinking issues, ordinary bonding has taken place and whether further assessments would demonstrate pressures on the child from identifying with her siblings and aligning with the mother, and as such, the behaviours merely being indicative of survival mechanisms.
Later the family consultant was directly asked for the cause of the trauma in the following manner:
[COUNSEL FOR THE ICL:] Are you able to say what, in your view, caused the trauma state in [B]?
[FAMILY CONSULTANT:] I can only go on the basis of what I had described to me and that is that to, in terms of the mother and in terms of the older daughter, especially, but also [D], the son – they just basically describe the father as a “very odd man,” strange personality, often short, judgmental – lots of things that indicated that for a young child – and remember, this started off, probably, on the basis of a child, as I said in my follow-up report – and I think this is – well, not fairly – this is critically important – attachment processes begin at birth and they are very, very powerful until about the age of 18 months, two years, and from what I can understand, that was denied [B]. Then, she was reintroduced to the father. The circumstances of what went on between her and the father to me are sketchy, at best, except for the fact, from what I understand, [B], over time, would come home quite distressed and refusing to go and see the father and the mother said to me that she did her best to get him – get her to see him for some time. So to me, that seems to suggest that the child did not have a form of strong attachment to the father and, under such circumstances, what commonly happens then is that children are much more likely to be influenced by not – you could say “momentary” – but by factors that are much greater and can’t be buffered by a strong attachment which will occur in the first 18 months of a child’s life.
(Transcript 15 February 2017, pp 5-6)
Shortly after, the family consultant said that, whatever was the cause of the trauma, it had most likely occurred in the father’s household.
Thus the father is correct to say that the cause of the child’s trauma was not identified. However, that does not mean that the trauma was not real and was not sufficient to justify the opinion of the family consultant that it was not in the child’s best interests to see the father. It was not suggested to the family consultant that the child was not extremely distressed at the thought of seeing her father.
In the balance of the father’s submissions he adverts to the theme of the mother’s earlier problems with alcohol and the opinions of Associate Professor E. He also refers to a number of matters, including letters by Dr L, Dr Y and a report by Ms W (none of which was in evidence).
It is clear that the primary judge accepted the opinion of the family consultant. That was a course that was entirely open on the evidence. The matters referred to by the father do not amount to incontrovertible evidence or evidence that shows her Honour’s findings to be glaringly improbable or contrary to compelling inferences: see Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43].
Her Honour also expressly did not accept the opinions of Associate Professor E, saying:
45.Unlike Associate Professor E, I did not find the father’s thoughts to be well connected and I am satisfied based upon his evidence that his perception in so far as it relates to the evidence and the issues in this case was far from normal. Associate Professor E qualified his report on the basis that he had not been provided with a copy of the father’s affidavits and I query whether, if he had read the father’s Trial Affidavit, he would have formed the same views. In particular, I query whether he would have concluded that the father’s beliefs were not delusional or that the father was not of the view that he was being persecuted or at the very least, that he was hard done by …
This also was a course that was open on the evidence.
It follows that I consider there is no merit in any of the father’s grounds of appeal and the appeal should be dismissed.
Application in an appeal
By an Application in an Appeal filed on 20 September 2017 the father seeks a number of orders. The first four orders are:
1.I seek that Ms Bonnie is to appear at the appeal hearings, and order 6 of the 26 April 2017 orders is revoked for the appeal.
2.The word ‘consent’ is deleted from the orders.
3.The errors appearing on the reasons for judgment are amended.
4.The family matter is re-heard as a de novo hearing.
The first order is entirely misconceived. Whilst the Court has power to order that a person appear at a hearing, that is not a power that I would consider exercising in this matter. No basis has been demonstrated for requiring the ICL or counsel for the ICL to attend the court.
Orders 2 to 4 are orders that would arise for consideration only if the appeal is successful.
The balance of the Application in an Appeal seeks to have admitted as further evidence in the appeal the evidence of a psychologist who provided a report for the father and the material that was produced on subpoena by the following entities:
·Telstra;
·National Institute for Integration;
·F Town Base Hospital;
·Dental Services S Region and S Region Health Services at J Town;
·Rural Withdrawal Services;
·S Region Medical Centre; and
·Department of Human Services.
As is apparent from the nature of the request, all of this evidence was available at the hearing but not tendered by the father. He gives no explanation as to why it was not tendered. That is a sufficient basis for refusing to accept the evidence on the appeal: CDJ v VAJ (1998) 197 CLR 172 at 203. Accordingly I propose that the Application in an Appeal should be dismissed.
Bennett J
I agree with Aldridge J’s reasons and have nothing further to add.
Thackray J
I also agree with Aldridge J’s reasons and the orders that he proposes. Accordingly, the formal orders of the court are as follows:
(1)The Application in an Appeal filed on 20 September 2017 be dismissed.
(2)Appeal SOA 33 of 2017 be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Aldridge & Bennett JJ) delivered on 5 October 2017.
Associate:
Date: 10 October 2017
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