Verner & Vine

[2007] FamCA 354

FAMILY COURT OF AUSTRALIA

VERNER & VINE [2007] FamCA 354

FAMILY LAW – APPEAL – CHILDREN – CONTACT – Whether trial Judge erred in making findings as to the orders sought by the appellant – Whether trial Judge erred in failing to clarify with the appellant (a self-represented litigant) the precise nature of her application – Whether failure to elicit from the appellant or correctly understand the application constituted procedural unfairness – No procedural unfairness.

Whether trial Judge erred in finding that the child would be distressed at separation from the child’s immediate family for purposes of contact with appellant – Whether there was sufficient evidence to support the finding – Evidence sufficient to permit trial Judge’s finding - Whether reasoning in support of finding inadequate – Trial Judge expressed range of reasons other than likelihood of distress for refusing contact.

Whether trial Judge erred in finding that the child would be at risk if she were to have contact with the appellant – Whether proposition should have been put to the appellant at trial – Whether there was evidence to support the proposition or was it sufficient for the trial Judge to rely on final submissions of the appellant – In these circumstances trial Judge entitled to rely on statement made by appellant and to do so without informing appellant.

Whether trial Judge erred in making findings as to the nature of the previous relationship between the appellant and the respondent – Whether the trial Judge failed to deal fully with evidence of whether there had been a lesbian relationship – Further exploration of earlier relationship by trial Judge would not have altered ultimate outcome.

Whether trial Judge erred in failing to give a direction about a possible Jones v Dunkel inference – Appellant had herself done all that was necessary – Trial Judge not required to do more to assist.

Whether trial Judge failed to deal adequately or at all with the evidence in the appellant’s case – No substance in this complaint.

Appeal dismissed.

COSTS – COSTS OF APPEAL – Circumstances do not justify departure from general rule – No order for costs.

Family Law Act 1975 (Cth)
Status of Children Act 1996 (NSW)

Re F: Litigants in person guidelines (2001) FLC 93-072
De Winter and De Winter (1979) FLC 90-605

CDJ v VAJ (1998) 197 CLR 172

APPELLANT: Ms Verner

RESPONDENT:	Ms Vine
FILE NUMBER:	NCF	181	of		2005

APPEAL NUMBER: EA 100 of 2005

DATE DELIVERED: 22 March 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Finn, Warnick &  Boland JJ

HEARING DATE: 3 April 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 15 August 2005

LOWER COURT MNC: [2005] FamCA 763

COUNSEL FOR THE APPELLANT: Ms Gillies

SOLICITOR FOR THE APPELLANT: Adams & Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Berryman Partners

Orders

1. That the appeal be dismissed.

2. That there be no order for costs in relation to the appeal

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Verner and Vine.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 100 of 2005
File Number: NCF 181 of 2005

Ms Verner

Appellant

And

Ms Vine

Respondent

REASONS FOR JUDGMENT

1. In this somewhat unusual and difficult case the appellant, appearing without legal representation, sought before the trial Judge, Lawrie J, orders for contact with a four year old, severely handicapped child, A. The child had been born to the respondent mother as a result of IVF procedures at a time when the appellant and the mother had been living together, according to the appellant, in a lesbian relationship. The mother claimed before her Honour that they had only been friends, although she conceded that for purposes of the IVF procedures, she had held out that she was in a lesbian relationship with the appellant.

2. The child was born in April 2001 when both the mother and the appellant were about 24 and had already been living together for about seven years.

3. In January 2003 the mother commenced to cohabit with, and subsequently married in March 2004, her husband. They have two children born in September 2003 and November 2004.

4. Both the mother and her husband opposed orders for contact being made in favour of the appellant.

5. Lawrie J heard the contested application for contact over a period of three days (8, 9 and 10 August 2005). On 15 August 2005 she delivered her reasons for judgment and made orders dismissing the application for contact.

6. This is the appellant’s appeal against the orders dismissing her application.

7. Given the issues raised on the appeal, it will be useful if we provide an initial outline of her Honour’s reasons for dismissing the appellant’s application for contact with the child.

The Trial Judge’s Reasons

1. Her Honour commenced her reasons with the statement:

   “1. This matter concerned an application for contact orders.”

2. She then referred to the sections of the Family Law Act 1975 (“the Act”) (in the form in which it was then) which provided that the best interests of the child are paramount and set out the provisions of s 68F which at that time contained the matters which the Court must consider in determining what is in a child’s best interests.

3. Her Honour next referred to s 64B and s 64C which provided for orders to be made for contact between a child and a parent of the child or “some other person”, and posed the question as to whether the appellant (the applicant before her) was a parent or some other person.

4. In this context her Honour made the following findings of fact:

   7.   The child concerned, “A”, was born on […] 2001.  She was conceived by IVF.  The respondent is the biological mother, and carried the child.  She was not married when the child was born.  The father was an anonymous donor.  The mother was living with the applicant when the child was born.  The mother says they were only friends; the applicant says that the mother was her lesbian partner.

   8.   Certainly in the process of obtaining the IVF insemination the mother held out that she was in a lesbian relationship with the applicant.  The applicant co-signed the documents for the clinic as the partner of the mother.  They attended counselling together as part of the IVF process and held out that they were a lesbian couple.

5. Having set out the provisions of s 60H of the Act (which concerns the parentage of children born as a result of artificial conception procedures) and s 14 of the New South Wales Status of Children Act 1996 (which concerns presumptions of parentage arising out of use of fertilisation procedures), and having explained that the Act contained no definition of “parent” which would have application in this case, her Honour concluded (in paragraph 13) that the appellant could not be considered a “parent” under that Act but may be within the class of “other people significant to [the child’s] care, welfare and development”.

6. Her Honour then explained (in paragraph 14) that the mother had now married and had two children by her husband and that, supported by her husband, she did not want contact orders made in favour of the appellant.

7. Her Honour proceeded to set out (in paragraph 15) the orders which she said the appellant sought, and made certain comments (paragraphs 16 to 17) which we will later set out, critical of what she regarded as the focus of those orders.

8. Her Honour then recorded (in paragraph 19) that the appellant had “spent much of her case seeking to establish that she and [the mother] had had a nine year lesbian relationship”, and that she had called evidence from her brother and her sister “to assert that they had shared a bed.” Her Honour then observed (in paragraph 20) that she “was not impressed by either of her siblings as witnesses” and she gave her reasons for this conclusion (in paragraphs 20 to 23). Her Honour also observed (in paragraph 24) that the appellant herself “was not an impressive witness either”, and again she explained her reasons for this conclusion.

9. Following this observation, her Honour embarked on a discussion (paragraphs 25 to 31) of photographs and cards which the appellant had tendered apparently to establish the nature of the relationship which she had had with the mother and also of the financial aspects of the relationship.

10. Her Honour then commented (at paragraph 31): “[w]hatever the nature of the relationship at the time A was conceived, it is now very different from a close friendship or a love affair”, and she proceeded to discuss the present state of the relationship between the appellant and the mother, concluding this discussion by saying:

    34. The state of the relationship between these former friends which exists today makes it clear that it would be extremely unpleasant for the mother to be in a position where she was required to have any further contact with the applicant. I am satisfied that it would impinge on her and her family’s need for peace and tranquillity and cause upset in the child’s home which would not be in the child’s interest.

11. Next her Honour discussed (paragraphs 35 to 37) the difficult situation which existed for the child, the mother and her husband on account of the child being “severely handicapped through having spastic quadriplegia cerebral palsy with athetoid movements.” In this context her Honour also discussed the appellant’s attitude to the child’s problems. Her Honour then reached the following conclusions:

    39. It would not be in the child’s interests for the mother and her husband to be placed under any further stress.  The thought that [the appellant] had any control over their lives and was able to intrude into their family when they did not want to have an ongoing relationship with her would be very stressful.

    40. It would not be in the child’s interests to be told that she is different from the other children in the family, or to be treated differently from the other children.  It would not be in the child’s interests to be exposed to any criticism of, or hostility towards, her mother or her stepfather.  Orders in favour of the applicant would be likely to lead to all of these things.

    41. I am satisfied that the significance of [the appellant] in the child’s life is now a matter of history, namely the participation in the IVF process, and the occasional assistance she offered as the mother’s friend when the child was younger.  There will be no benefit to the child in seeing her, and considerable risk of harm.

12. Finally her Honour made the following findings in relation to the matters then contained in s 68F(2) which the Court was required to consider in determining what would be in the child’s bests interests, and which she considered relevant:

    43. (a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes

    The child is unable to express any wishes.

    44. (b) the nature of the relationship of the child with each of the child’s parents and with other persons

    The child has a good relationship with her mother and stepfather, and had been happy in the past when minded by [the appellant] for short periods.

    45. (c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents;  or (ii)  any other child, or other person, with whom he or she has been living

    The child is very dependant on her mother and her stepfather and her siblings are particularly important as playmates and companions due to her limited mobility.  It would be likely to be extremely distressing for her to be separated from any of them for any length of time.

    46. (d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

    The need to have special equipment for the care of the child would make any contact more difficult than usual.

    47. (e) the capacity of each parent, or of any other person, to provide for the needs of the child including emotional and intellectual needs

    I am satisfied the mother and the stepfather have the capacity to provide well for the emotional and intellectual needs of the child;  I am not so satisfied in respect of [the appellant] who does not present as insightful or child focussed.

    48. (f) the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant

    The child’s health is relevant and has been discussed above.

    49. (g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:  (i)  being subjected or exposed to abuse, ill-treatment, violence or other behaviour;  or  (ii)  being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person

    There is a risk that [the appellant] may seek to involve the child in her preoccupation with the relationship which she had with her mother at the time of her conception, and this could cause confusion, and distress.

    50. (h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

    The mother and the stepfather have shown an exemplary attitude to the child and the responsibilities of parenthood.

    …

    53. (k)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

    For the child’s sake, the less her mother and stepfather have to be distracted from the task of caring for her, the better.

13. The concluding paragraph of her Honour’s judgment was then as follows:

    55. In all the circumstances I am satisfied it would be in the child’s best interests for their [sic] to be no contact with the applicant:

    1. The application for contact is dismissed.

The Issues Raised on the Appeal

1. The written submissions prepared by the appellant’s counsel identified the issue on the appeal as being “… whether or not it was open and appropriate for the Court below to make an order that [the appellant] have no contact with the child…”

2. Later in her written submissions, counsel identified under the following six headings areas in which her Honour was asserted to have erred:

   (i)Findings as to orders sought;

   (ii)Findings that the child would be distressed at separation for one day;

   (iii)Findings that the child would be at risk if she were to have contact with the Appellant/ Applicant;

   (iv)Criticism of what was seen as a preoccupation with the past relationship;

   (v)Failure to give a direction about a possible Jones v Dunkel inference;

   (vi)Failure to deal adequately or at all with the evidence in the Appellant/ Applicant’s case.

3. Even though the matters just listed appear to bear little relation to the grounds of appeal contained in the appellant’s amended notice of appeal (as will be seen when we set out those grounds in a later context), these were the matters which counsel argued in support of the appeal. They are therefore the matters which we will address in determining the appeal

4. It is important to point out that before us both counsel for the appellant and counsel for the respondent mother accepted that if substance was found in the appeal, the matter would have to be remitted for a new trial.

(i) “Findings as to Orders Sought”: the application which was before the trial Judge

1. On 25 January 2005 the appellant had filed an application in which she sought the following orders:

   1.   That the child [A] …. reside with the respondent mother.

   2.   That the Applicant have the joint responsibility, in consultation with Respondent for making decisions about the long term care, welfare and development of the child.

   3.   That the Applicant have the joint responsibility, in consultation with Respondent for making decisions about the child’s medical condition and treatment, including operations, medical treatments and dental treatments, speech therapists, physiotherapists and alternative medical treatment of the child.

   4.   That the Applicant have contact as agreed between the parties, failing agreement as follows:

   (a)     Each alternate weekend from 10.00am on Friday to 5.00pm on Sunday.

   5.    Upon the child commencing school age, as agreed or failing agreement as follows:

   (a)Each alternate week from after school on Friday to Sunday 7.00pm

   (b)In the event that any contact weekend falls on a long weekend including a Monday then contact to the Applicant shall be extended to 6.00 pm on Monday;  if it falls on a long weekend including Friday, then contact shall commence on 6.00pm Thursday.

   (c)Half of all school holidays with each alternate Christmas holiday to include Christmas Day.

   (d)   For 4 hours on the child’s birthday.

   (e)   The applicant have contact for half of each Mother’s Day.

   6.   That the Respondent provide to the Applicant on a regular basis copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the child, as soon as practicable after they are received and that each party shall pay one half of any associated costs of photocopying and postage.

   7.   That the Respondent provide to the Applicant, in a timely manner, copies of all notices received from school and details of all functions, parent and teacher nights and other activities to which the parents are invited.

   8.   That the Respondent keep the Applicant informed about the welfare and education of the child.

   9.   That the Respondent encourage and foster the child’s relationship with the Applicant.

   10. That the Respondent will encourage the child, at reasonable times, to communicate by telephone with the Applicant during periods of holiday contact.

   11. That the Respondent will provide a contact number and address to the Applicant during periods when the Respondent has holiday contact with the child.

   12. That the Applicant have joint responsibility in consultation with the Respondent about travel within Australia undertaken by the child.

   13. That the Applicant have joint responsibility in consultation with the Respondent for decisions about taking the child outside Australia and the applicant consents [sic] to be obtained in writing.

2. On the first day of the hearing before her Honour, the appellant had filed in Court an affidavit which concluded with the following:

   Today’s Proposal to Respondent

   1.   That [A] reside with biological mother.

   2.   That I being the other parent has contact every second Saturday from 10am until 4pm for a period of 6 weeks commencing Saturday 13^th August 2005 in the Newcastle area. This is to re-establish contact with [A] and myself.

   3.   There after every second weekend from 12 noon Friday until 5pm Sunday contact to occur in the place of my choosing for the best interests of my daughter. When [A] commences school contact to commence at 5pm on Fridays until 5pm Sunday again in place of my choice. Being that if I feel [A] is comfortable to come to Parramatta I will bring her to my place, allowing a stop half way for a break and or take her swimming at heated pools. So that she is not in the car for longer than 1 hour and 30 mins.

   4.   That the mother not relocate with [A] without prior written consent from myself.

   5.   That no surgery or major adjustments are done on [A]’s body without prior written consent from myself and also a prior meeting with [A]’s Doctors and Specialists by me.

   6.   That [A] is permitted to spend my Birthday with me from 10am to 6pm on the […] of each year, and also Fathers day 2^nd Sept every year, which [A] knows to be [M] day, from 10am to 6pm of each year.

   7.   Contact to occur from 12 noon Christmas Eve until 12 noon Christmas day in 2005 and each alternate year thereafter and from 12 noon Christmas day until 12 noon Boxing day in 2006 and each alternate year thereafter.

1. It appears to be common ground that at no time during the three day hearing did her Honour seek clarification from the appellant as to the orders which she was actually seeking.

2. When in her reasons for judgment her Honour came (at paragraph 15) to record the orders which the appellant sought, she set out those orders which were contained in the application filed on 25 January 2005 and which we set out in paragraph 25 above.

3. Having set out those orders, her Honour then made the following clearly critical comments regarding the focus of those orders:

   16. During the course of the litigation the applicant repeatedly referred to the child as “my daughter” or “our daughter”.  The pattern of orders sought is a pattern which might be appropriate in the case of a parent, but would be extraordinary for a non-parent, particularly for example, alternative Christmas Days.  The impact on the child of being separated from her half-siblings on alternate weekends, for half of the school holidays and so forth does not appear to have been given any consideration in the drafting of the orders sought.  On the face of it, the application is less child focussed than concerned with an assertion by the applicant of a parental “entitlement”.  They also do not appear to have taken “A’s” special circumstances into account.

   17. The language of the Act in speaking of the group of people with whom children have a right of contact, other than their parents, does not refer to people who may once have played a role in their life, but looks at the present and future, and speaks of their “care, welfare and development”. The Court needs to be able to see how the contact will benefit the children’s development, welfare and be a positive in the care of the child.

4. The first matter argued before us in support of the appeal was that her Honour had erred in setting out (in paragraph 15 of her judgment) as the orders which the appellant sought, the orders contained in the application filed 25 January 2005, when in fact the orders sought were those set out at the end of the affidavit filed on the first day of the trial. It was submitted that this error had caused her Honour to misunderstand the initial limited contact which the appellant was seeking, and had led her to make the adverse comments which she did in paragraphs 16 and 17 of her reasons, being to the effect that the appellant’s application was not focussed on the child, but rather on the appellant’s own entitlement.

5. It was further submitted that her Honour had erred in failing to clarify with the appellant as a self represented litigant (as the appellant was before her Honour) exactly what orders she was seeking, with reliance being placed in this regard on the so-called guidelines for litigants in person contained in Re F: Litigants in person guidelines (2001) FLC 93-072.

6. The transcript reveals that her Honour went to great lengths throughout the hearing to explain the procedures of the Court to the appellant. However we accept that at no time did her Honour seek clarification from the appellant as to whether she was relying on her original application filed on 15 January 2005, or whether she now sought the orders set out in her affidavit filed in Court, or indeed as to what orders she sought.

7. Given the significant variations between the orders sought in each of the two documents, it is obviously a matter of some concern that her Honour did not seek such clarification from the appellant during the hearing. It is also a matter of some concern that in her reasons for judgment, her Honour referred only to the orders sought in the appellant’s application of 25 January 2005.

8. In considering this first complaint raised by the appellant, it is, in our view, necessary to bear in mind the following matters. First, although the appellant’s original application sought, in addition to orders for defined contact, orders for matters such as joint responsibility for decisions (including in relation to medical matters), and although in her affidavit the appellant sought that her consent be required for any relocation or medical procedures, the transcript indicates that the focus of the trial was essentially on contact, and not on the other matters which were the subject of orders sought in both documents.

9. More significantly, the only issue identified in both the appellant’s summary of argument and also in the grounds of appeal contained in her amended notice of appeal (both of which documents were prepared by lawyers) was the issue of contact. The grounds of appeal contained in the amended notice of appeal asserted that her Honour:

   ·erred in taking into account “in arriving at her decision on the question of contact” extraneous matters and in giving weight to matters “that were not relevant to the consideration of that issue” or in giving them too much weight (Ground 1);

   ·erred in failing to indicate to which matters she attached greater or lesser significance (Ground 2);

   ·failed “to provide adequate reasons for her decision as to contact and specifically as to no contact” (Ground 3);

   ·erred in failing “in her consideration of the contact issue” to properly weigh and assess the evidence as to s 68F(2)(b) of the Family Law Act 1975 (as it then stood) (Ground 4), s 68F(2)(c) (Ground 5), s 68F(2)(e) (Ground 6), s 68F(2)(f) (Ground 7), s68F(2)(g) (Ground 8) and s 68F(2)(h) (Ground 9).

10. Thus, it is important to note, there was no issue before us concerning the fact that her Honour did not refer in her reasons to any orders that might have been sought by the appellant in relation to any matter other than contact.

11. A further significant matter to be noted is that in her original application the appellant sought contact, in default of agreement, each alternate weekend from 10am Friday to 5pm on Sunday (that is, effectively 3 days and two nights) and upon the child starting school from after school on Friday to 7pm Sunday on each alternate weekend (that is, for two days and two nights), and for half the school holidays. In addition she sought half of each mothers’ day and for four hours on the child’s birthday.

12. In her affidavit the appellant had sought that for the purpose of re-establishing contact, there be contact for an initial period of six weeks every second Saturday from 10am to 4pm. Thereafter there should be contact every second weekend from 12 noon Friday to 5pm Sunday, and after the child commenced school from 5pm Friday until 5pm Sunday. The appellant also now sought contact for eight hours on her own birthday, for eight hours on fathers’ day, and for 24 hours on Christmas Eve to Christmas day or, in each alternate year, Christmas Day to Boxing Day.

13. Apart from the introductory period of six weeks, it will be seen that the proposed alternate weekend contact remained largely the same, although the half school holiday proposal was apparently abandoned.

14. Thus apart perhaps from the half school holiday issue, we do not consider that the differences between the contact arrangements sought in the original application and those sought in the subsequent affidavit would undermine the comments made by her Honour in paragraph 16 of her judgment (see paragraph 29 above). Nor would they undermine the reference to separation of the child from her immediate family “for any length of time” in paragraph 45 of her Honour’s reasons (see paragraph 19 above).

15. To the extent that it might be said that her Honour’s misunderstanding of, or failure to understand, the appellant’s ultimate application was a mistake of fact, it must be remembered that, as was recognised by Gibbs J in De Winter and De Winter (1979) FLC 90-605 at 78,092, while a mistake of fact is a ground for overruling a discretionary judgment (which the judgment which is the subject of this appeal is), it “may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible…”. It is then clear from the balance of his Honour’s observations, that Gibbs J considered that in such cases, the interference of the appellate court would not be justified.

16. In the present case the precise times which the appellant wished to spend with the child did not carry any real significance in her Honour’s final decision. Accordingly, if her Honour’s failure to elicit from the appellant, or to understand correctly, the precise times which she sought to spend with the child, was indeed a mistake of fact, we would regard it as a mistake of fact that has not affected the final result, and thus would justify any interference.

17. Again, if it be the appellant’s case that her Honour’s failure to elicit from her, or to have correctly understood, her application constitutes (having regard to Re F (supra)) a procedural unfairness to her, we do not consider that that situation would justify the success of the appeal and an order for a new trial. This is because we are not persuaded that had her Honour understood that the appellant’s application was that contained in her affidavit (rather than in her original application), it would have made any difference to her Honour’s ultimate decision.

18. Nor are we persuaded (having regard to the discretionary nature of the judgment in question) that another Judge, who understood and had regard to the orders sought by the appellant in her affidavit, would on the probabilities be compelled to make a different order (cf CDJ v VAJ (1998) 197 CLR 172 at paragraph 145).

19. Thus we are not persuaded that any procedural unfairness resulting from her Honour’s failure to elicit from the appellant or to properly understand the precise contact orders which she was seeking, could justify “the pain, expense, delay and uncertainty” of a second trial, which would be necessitated, if the appeal were to be allowed on the basis of the appellant’s complaint that her Honour did not enquire as to or properly understand her application (again cf CDJ v VAJ (1998) 197 CLR 172 at paragraph 145).

20. For the reasons we have given, we would therefore not allow the appeal on the basis of her Honour’s misunderstanding of, or failure to enquire as to the exact details of, the contact orders sought by the appellant before her.

(ii) Findings that the child would be distressed at separation for one day

1. The second challenge raised on behalf of the appellant to her Honour’s decision that she should have no contact with the child, was directed to an alleged finding by her Honour which was asserted in paragraph 24 of the appellant’s written outline of argument to be ‘that the child would be distressed at a separation from her mother, stepfather or siblings”.

2. It was submitted that there was no evidence to support such a finding, particularly as to the effect upon the child of one day per fortnight. It was also submitted that her Honour’s reasoning to support such a finding was inadequate, and that this was particularly so in light of an earlier finding by her Honour that the child “had been happy in the past when minded by [the appellant] for short periods”.

3. We understand that the finding, which is the subject of this challenge, is that contained in paragraph 45 of her Honour’s reasons when she was considering s 68F(2)(c) (“… the likely effect on the child of separation from: (i)… her parents; or (ii) any other child… with whom… she has been living.”). We have earlier set out, but here for convenience repeat, the precise words of that finding:

   45. …The child is very dependant on her mother and her stepfather and her siblings are particularly important as playmates and companions due to her limited mobility.  It would be likely to be extremely distressing for her to be separated from any of them for any length of time.

4. We understood counsel for the appellant to concede that the child was very dependent on her immediate family because of her limited mobility. But in any event, there was certainly evidence before her Honour from the file of the Spastic Centre (Exhibit U) to the effect that because of the nature of her cerebral palsy the child is unable to communicate her basic needs and wants, unless her parents are close by to help decipher her facial expressions and vocal sounds, and that she needs maximal assistance in all activities of daily living.

5. However, the real complaint according to counsel for the appellant was that there was no evidence which would establish that the child would be distressed or experience separation anxiety from her immediate family if she was to spend time with the appellant. Counsel also referred in this regard to her Honour’s finding in connection with s 68F(2)(b) (“…nature of the child’s relationships…”) that the child “had been happy in the past when minded by [the appellant] for short periods.”

6. It was submitted by counsel for the respondent that that last quoted finding must be read against the background of the following earlier findings by her Honour about the amount of time which the appellant had spent with the child:

   36. …The mother says in the past she minded her for some hours on a few occasions, but that assistance came to an end when she tried to retain her, and the child was retrieved through the intervention of the police.

   37. I accept the version of events given by the mother. …

7. Counsel for the respondent conceded that the only evidence of a separation anxiety on the part of the child was to be found in the following passage of the appellant’s cross-examination of the mother (Transcript 9/8/05 at Appeal Book p 293):

   I’m referring to 6 June 2002, Dr L’s quote, which is Dr L’s records, your Honour, which says:

   [The mother] is becoming increasingly… stressed by this. I have suggested one possibility to break this pattern at least part of the time would be to put [A] into day care.

   Do you agree with that?---Yes, that is correct.

   That’s what the doctor told you?---Yes. The GP, yes.

   Did you follow the doctor’s instructions?---No.

   Why’s that?---Because I had a separation anxiety with [A].

   You had a separation anxiety?---And so does A.

   Another doctor has also mentioned that respite may be needed. Do you remember that?---Yes, that is correct.

   Now that you have two more children?---Yes.

   So, the doctor’s recommended respite care for you as well?---To come into the house and help me with the housework.

   Did you take the doctor’s advice and get respite to help you?---No, because I didn’t believe I needed it.

   So, you believe that you can adequately care for [A] with her disability and your two other younger children?---Yes. It’s very hard but I do every day.

   So, these separation anxiety issues, as Ms W suggests that you do have, in effect do you think they’re going to have some sort of negative effect on [A]?---No, because that was then. It’s different now.

   So, you don’t get anxiety separation when she departs you now?---No, we are about to try [A] in pre-school for one hour a day. Sorry, one day, once a week.

   So you can handle her being away from you?---I’m going to try.

8. As to her Honour’s earlier finding in the context of s 68F(2)(b), that the child had been happy when minded by the appellant in the past, it must be borne in mind that her Honour had earlier said in paragraph 37 that she accepted the version of events given by the mother, that is, in relation to the appellant’s contact with the child. That evidence (as contained in the mother’s affidavit) was that after she and the appellant had sold their jointly owned property in January 2003 (that is, a couple of months before the child turned two) the appellant had only seen the child on four occasions: the first being in October 2003 for about one hour; the second being in April 2004 for about two hours; the third was for about three hours on an unknown date; and the fourth occasion was on 24 September 2004 (that is about eleven months prior to the trial) when police intervention was required to obtain the return of the child after a period of some eight hours or more.

9. The amount of contact between the appellant and the child which had occurred over the two and a half year period prior to the trial was thus extremely limited, and as we have said, there had been no contact for some eleven months prior to the trial. When considered against this background, we do not think that the earlier finding of the child being happy for short periods of contact undermines the finding which is the subject of the present challenge.

10. The finding attacked is not inconsistent with acceptance that [A] might well spend periods of time with the appellant without distress. The trial Judge was addressing an application which overall, sought quite extensive contact. In our view her Honour’s consideration of the likely effect on the child of separation from her family “for any length of time” must be seen in that context.

11. In our view, from the evidence in Exhibit U and the history of anxiety in both mother and child (albeit in the past at least in respect of shorter periods), the inference which her Honour drew about the likely impact on the child of separation from family for “any length of time” was open to her.

(iii) Findings that the child would be at risk if she were to have contact with the appellant

1. The next finding by her Honour which the appellant challenges was that made in paragraph 49 of her Honour’s reasons in the context of s 68F(2)(g), being that “[t]here is a risk that [the appellant] may seek to involve the child in her preoccupation with the relationship which she had had with her mother at the time of her conception, and this could cause confusion, and distress.”

2. It was submitted on behalf of the appellant that this proposition was never put to the appellant, and that it should have been if such an adverse inference was to be drawn. It was further submitted that there was no evidence to support such a proposition, and that it appeared from an earlier observation by her Honour in paragraph 32 of her reasons, that in making this finding, she was relying on certain submissions made by the appellant in her final address.

3. Again it is necessary to consider the finding which is the subject of the present challenge against related findings which her Honour had made in the following earlier passages from her judgment and in which she had made reference to the submissions made by the appellant:

   32.The [appellant] not only sought through the proceedings to have the respondent “admit” to her lesbian past, but there is a real possibility that she wishes to tell the child about it as well.  In her submissions she said for example that, “I believe the truth and not denying the reality will help her not have any psychological issues in the future.”  The truth, she asserts, is that the mother was in a lesbian relationship in which she was the co-parent of the child.

   33.The cross-examination of the mother and her husband by [the appellant] was far more focussed on the adult relationships than on the child.  The [appellant] denigrated the respondent, and sought to upset and unsettle the husband during her cross-examination of him, raising a conviction that the respondent had for petty theft, suggesting to him that she had lied to him, suggesting that she had had affairs and relationships of which he was ignorant.  Her attitude to them both was hectoring and sarcastic.  She was self-centred; some questions put to the respondent included, “Are you jealous and angry I am no longer with you?”; “Do you despise my happiness?”; “Are you jealous I am achieving my goals?”; “Are you trying to do what you can to destroy my life because you are vengeful because I left you?”

   34.The state of the relationship between these former friends which exists today makes it clear that it would be extremely unpleasant for the mother to be in a position where she was required to have any further contact with [the appellant].  I am satisfied that it would impinge on her and her family’s need for peace and tranquillity and cause upset in the child’s home which would not be in the child’s interest.

4. The passage from the appellant’s submissions to which her Honour referred in paragraph 32 was as follows (Transcript 10/8/05 p 249):

   I’d like to refer to section 68F, your Honour, that when ruling the paramount consideration for making orders about what’s in the bests interests of the child. Going down to the subsection:

   What’s in the child’s expressed wishes and factors.

   Taking into consideration the relationship with each parent and the need to protect the child from physical or psychological harm. I believe the truth and not denying my child of her reality of that which she already knows will help her and assist her in not having any psychological issues when she gets older. To encourage her to be proud of who she is and confident in who she is and most of all happy in who she is. I ask that the Court consider the child’s own wishes.

1. We are not persuaded, at least on the basis of such argument as was put to us on this issue, that her Honour was not entitled in reaching her decision, to rely on a statement made by the appellant during the course of submissions (as opposed to while giving evidence), and to do so without informing the appellant that she proposed to do that. Had the appellant made the statement in question while in the witness box, we do not see that the trial Judge would have been under any obligation to explore such a statement further with the appellant before relying on it in her judgment. The appellant can be seen in her statement as confirming what can be inferred from her affidavit evidence (paragraph 17 of her affidavit filed in court). The statement was consistent with the manner in which the appellant ran her case – indeed it can be seen as an expression of the appellant’s case.

(iv) Criticism of what was seen as a preoccupation with the past relationship

1. The written submissions of counsel for the appellant appear to suggest that this complaint was directed to the last sentence of paragraph 32 of her Honour’s reasons (see paragraph 60 above) and also to paragraph 19 of her Honour’s reasons which is as follows:

   19.The applicant spent much of her case seeking to establish that she and the respondent had had a nine year lesbian relationship.  She called evidence from her brother (who was on affidavit), and her sister (in reply) to assert that they had shared a bed.

2. As we understand the last sentence of paragraph 32 and all of paragraph 19 to be an accurate record of the appellant’s case before the trial Judge, the precise nature of the complaint now under consideration is not easy to apprehend.

3. However, it ultimately emerged from the submissions of counsel for the appellant that this complaint related to her Honour’s discussion of handwriting issues in her assessment of the credibility of the appellant and also her Honour’s failure to deal more fully with the evidence concerning the nature of the previous relationship between the appellant and the mother.

4. While it may well have been preferable for her Honour not to have traversed into the issue of handwriting in the absence of expert evidence, it mattered little because her Honour appears to have concluded that the evidence was inconclusive. But in any event, whether or not that was her conclusion, nothing ultimately appears to have turned on the handwriting issue.

5. There is perhaps greater substance in the complaint that her Honour did not deal more fully with the issue of whether there had been a lesbian relationship between the appellant and the mother given that this was clearly a significant aspect of the appellant’s case. However we agree with her Honour’s observation in paragraph 31 that “[w]hatever the nature of the relationship at the time “A” was conceived, the relationship is now very different”.

6. Her Honour then went on to observe in paragraph 34 that the present state of the relationship was such that it would be “extremely unpleasant” for the mother to be in a position where she had to have further contact with the appellant. This and the other considerations (contained in paragraphs 39, 40, 41, 45, 46, 47, 49 and 53) ultimately caused her Honour to dismiss the application for contact. Thus we do not see how any deeper exploration by her Honour of the parties’ earlier relationship would have altered the ultimate outcome.

(v) Failure to give a direction about a possible Jones v Dunkel inference

1. There was some cross-examination of the mother by the appellant concerning the presence of both the appellant and the mother’s mother at the hospital at the time of the birth of the child (Transcript 9/8/05 at Appeal Book p 291 to 308). Then during the cross-examination of the mother’s husband by the appellant the following exchange occurred (Transcript 10/8/05 at Appeal Book p 345).

   [THE APPELLANT]: …I put it to you that [the mother’s] family is not here giving evidence because they know the truth of the relationship, they know the truth that [A] is my daughter and that they did not want to be involved?---That is not the case and it’s not true at all and you know it.

2. The appellant now complains that against the background of the guidelines set out in Re F: Litigants in person guidelines (supra), her Honour should have given guidance to the appellant about the possible adverse inference that could be drawn as a consequence of the evidence not being called.

3. We have some difficulty understanding this complaint as it seems to us that the appellant had done all that was necessary by herself raising the question concerning the absence of the mother’s parents. In these circumstances we do not see what more her Honour was required to do to assist the appellant as a litigant in person.

4. It is of course true that her Honour did not in her reasons comment on the absence of the mother’s parents as witnesses. However as we understood that the only purpose of the appellant’s question concerning their absence would be to refer yet again to the nature of the previous relationship between the appellant and the mother, and as it is clear that her Honour considered that the precise nature of the previous relationship was largely immaterial to the issue which she had to decide, there could be no substance in a complaint concerning her Honour’s failure to refer in her reasons to the absence of the mother’s parents as witnesses.

(vi) Failure to deal adequately or at all with the evidence in the Appellant’s case

1. The evidence which it is here asserted her Honour failed to deal with, or to deal with adequately, was evidence from the appellant’s brother and sister and also from a friend of the appellant’s, Ms C, concerning the amount and quality of the time which the appellant had spent with the child prior to September 2004 and presumably from January 2003. In relation to the appellant’s siblings, her Honour said:

   20.I was not impressed by either of her siblings as witnesses.  Some of their evidence was inconsistent with evidence of the applicant herself.  The brother said that the child had come for contact on alternate weekends at a different time (after 5.00 pm when he would have been home from school) from that which had been given by the applicant (10.00 am on Friday morning).

   21.Her sister, a Police Prosecutor, had been in court for the whole of the evidence before she was called to give evidence in reply.  She was clearly partisan.  Her evidence resembled a submission.  She asserted that at a time she was living with her sister and was therefore witness to the relationship, that the applicant and respondent were in a “de facto relationship”, during a period when she said that the respondent was spending “quite a bit of time”, meaning by that that “she would come over for dinner and stay the night”, and “it felt like she was living there” even though she was in fact living elsewhere.

   22.She said that they were both very honest with their relationship and that they both openly displayed their affection.  That was not consistent with the applicant’s evidence that the respondent had been reticent about letting people know about the same-sex relationship.  The [appellant] had put that forward in explanation for the lack of reference to her claimed role in the [O] Hospital records. She said that the respondent “was ashamed of our relationship.”

   23.The [appellant’s] sister said she had told the applicant the respondent “was cheating on her” and that this had caused a falling out when she preferred the respondent to her sister.

2. Given her Honour’s conclusions in these paragraphs concerning the quality of the evidence of the appellant’s brother and sister – conclusions which are not challenged – it is not surprising that her Honour did not rely on this evidence to make findings concerning a more significant involvement by the appellant in the child’s life.

3. As to the evidence of Ms C, the complaint is that her Honour made no findings regarding that evidence which, it was submitted, would have supported the appellant’s case in relation to her involvement in the child’s life.

4. It is true that her Honour did not in her reasons even mention the witness Ms C. However a consideration of Ms C’s affidavit and of her oral evidence (including her evidence of the circumstances of the preparation of her affidavit) has satisfied us that her Honour was entitled to, in effect, disregard that evidence.

5. Thus we find no substance in this final complaint.

Conclusion

1. As we have found no substance in any of the matters raised before us in support of the appeal, the appeal must be dismissed.

Costs of the Appeal

1. In the event that the appeal was to be dismissed, the respondent mother sought an order that the appellant should pay her costs. The basis of this application was that she does not work, is not legally aided, and has had to realise the equity in her home because of these proceedings.

2. The appellant resisted a costs order on the basis that she was unemployed and that there were serious issues raised on the appeal.

3. We are not persuaded that the circumstances justify a departure from the general rule contained in the Act that each party should bear their own costs. Accordingly there will be no order for costs.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:     

Date:  22 March 2007