VW & J

[2004] FamCA 784

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal Nos. NA 55 of 2003
NA 10 of 2004

File No. TVF 471 of 2002

BETWEEN:

Appellant Husband

- and –

Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Finn, May and Guest JJ
DATE OF HEARING:                   11 March 2004
DATE OF JUDGMENT:               25 August 2004

APPEARANCES:

Mr Arnold of Counsel (instructed by V.A.J. Byrne & Co) appeared on behalf of the appellant husband.

Mr O’Driscoll of Counsel (instructed by Kenny & Partners) appeared on behalf of the respondent wife.

Ms Demack of Counsel (instructed by J M Madden & Associates) appeared on behalf of the children’s representative.

APPEAL SUMMARY

MATTER:VW and J
APPEAL NUMBER: NA 55 of 2003; NA 10 of 2004
(TVF 471 of 2002)
CORAM:Finn, May and Guest JJ
DATE OF HEARING: 11 March 2004

DATE OF JUDGMENT: 25 August 2004

CATCHWORDS: FAMILY LAW – APPEALS – Children – Children’s wishes – Allegation by the wife that the father had pressured the children to express a wish to reside with him – Whether trial Judge gave insufficient weight to the children’s wishes on account of these allegations in light of expert evidence that the children’s wishes were genuine notwithstanding the expert knowing of the allegations of pressure – Whether trial Judge gave insufficient weight to the wishes of the son on account of his autistic spectrum disorder (ASD) in light of expert evidence that the son was capable of forming and expressing his wishes despite the ASD and in light of parties’ agreement that the son’s ASD would have no bearing on the question of residence – Discussion of principles to be applied by the Court when assessing the correctness of the weight placed on the children’s wishes by the trial Judge.
FAMILY LAW – CROSS-APPEAL – Property settlement – Whether the trial Judge erred in making a 10% adjustment under s 75(2) in the husband’s favour – Whether the trial Judge gave appropriate weight to the parties’ choices not to pursue maximum income – Whether trial Judge gave appropriate weight to the income disparities of the parties and the possibility of a change in the children’s residence – Adjustment in the husband’s favour on the basis of the disparity in the parties’ incomes and apparently on the basis of a possible change in the children’s residence not justified in light of the trial Judge’s orders that the children continue to reside with the wife.

Caselaw cited:

Gronow v Gronow (1979) FLC 90-716

R and R (Children’s Wishes) (2002) FLC 93-108

Sandark v Sandark (1991) FLC 92-260

Simpson v Hamlin (1984) FLC 91-576

Louis v Louis (PA5339 of 1994)

Appeal allowed. Residence matter remitted for re-hearing.

Cross-appeal allowed. Property matter remitted for re-hearing.

Directions made for the filing of submissions as to costs.

Introduction

This is an appeal by the husband against certain parenting orders made by O’Reilly J on 11 September 2003, and a cross appeal by the wife against an order for property settlement made by her Honour on the same day.
In her reasons for judgment her Honour found:
·that the husband (who was born in June 1962) and the wife (who was born in February 1968) had married in February 1986 and had finally separated in October 2001;
·that there are two children of the marriage a son, A, born in March 1992 and a daughter, J, born in July 1997;
·that since separation, and except for a short period of shared residence between March – May 2002, the children have resided with the wife and had contact with the husband;
·that both parties live in northern Queensland, with the two children attending a nearby state primary school;
·that the wife is now married to Mr J; and
·that at the time of hearing before her Honour (15-16 July 2003), the husband was engaged to Ms T; they were to be married in September 2003.
Her Honour ultimately ordered that the children should continue to reside with the wife and have contact with the husband each alternate weekend from Friday night to Sunday night, on each second Wednesday (overnight) and for half the school holidays.
So far as the parties’ property was concerned, her Honour noted that the parties had agreed that their assets had a net value of $215,680, and that for the purposes of the proceedings their contributions should be regarded as equal. They were, however, in dispute as to the adjustment that should be made on account of the matters contained in s 75(2) of the Family Law Act 1975 (“the Act”). Her Honour determined that there should be a 10% adjustment in favour of the husband on account of those matters, with the result that the husband received 60% of the net assets (that is, assets to the value of $129,408) and the wife received 40% of the net assets (that is, assets to the value of $86, 272.

The husband’s appeal against certain parenting orders

Her Honour made ten orders relating to the children. However, in his Notice of Appeal the husband only appeals five of those orders, being the order that the children should reside with the wife (order 1), the orders defining the contact arrangements (order 4, 5 and 6), and an order for the husband to be provided with reports concerning the children’s schooling and health (order 7).
The complaints contained in the husband’s twelve grounds of appeal were summarised by his Counsel in his oral and written submissions in the following way:
(1)“problems with and errors in” her Honour’s treatment of the children’s wishes;
(2)“problems with and errors in” the way in which her Honour treated her own findings of fact in relation to the children and their relationships with their parents and with the parent’s respective new partners;
(3)that there was a misapplication of principle by her Honour in that she applied a principle that was more appropriate to interim proceedings;
(4)that in relation to contact, her Honour had failed to take into account the poor attitude which had been demonstrated by the wife to contact between the husband and the children;
(5)that in making the contact order her Honour was mistaken in her belief that there was agreement as to the terms of such an order.

The children’s wishes: the evidence and the submissions to the trial Judge

For reasons which will become clear in due course, we will begin our consideration of the husband’s complaints concerning her Honour’s treatment of the children’s wishes by referring to the expert evidence and to the submissions made to her Honour by the children’s representative in relation to those wishes before examining her Honour’s findings and conclusions in relation to the children’s wishes.
In the first family report dated 22 June 2002, Dr J, a clinical psychologist, made the following observations in relation to the children’s wishes:
25.Despite his neuropsychological problems, [A] was observed to be a reasonably mature-for-age boy (Grade 5) who spoke in a friendly and effective manner.
…
27.When asked, [A] was clear and unequivocal in his desire to live with his father, which he said was a thought-out decision. He gave a variety of concrete reasons for his stance, e.g., “he gives us all the essentials, … takes us places, loves and cares for us”. Additionally, [A] said, “dad gets upset the most, he sometimes cries”, which suggested the boy is in part responding to a need to care for his father.
28.Further to the above, and concerning [A’s] underlying attitude toward his respective parents, it is illuminating to consider the child’s narrative of the marriage breakdown. He stated. “What’s the cause of this, my mother threw my dad out of the house, and he had to live with his brother, [in north Queensland]. He’s [father] back in the house now. Then mum left dad to pay off all the house even though it’s in both names. Mum left the house in very bad condition, leaves in the pool and algae and toads, and the grass left long. Then mum moved in with [Mr J], so that’s it”
29.Thus, it is apparent the child sees his mother as the active party overall for the marriage failure, and, additionally, his justification for this perspective is in part framed on knowledge which most probably originated from [the father], i.e., [A’s] concern over house payments.
…
34.In summary, [A] desires to live with his father, and his viewpoint in this regard appears based on a complex of interlocking ideas and beliefs.
…
40.[J] was questioned at various times about her preference to live with either her father or her mother. It was felt [J] comprehended what was being asked of her. On almost all occasions she replied quickly in affirming a preference to reside with [the father]. On those few instances where the child initially said she favoured her mother, she amended her viewpoint when the question was immediately repeated.
41.Therefore, it was concluded some evidence existed that [J] desires to live with her father – notwithstanding her positive feelings towards [the mother]. However, given the child’s young age, and the fact she is not living with her father, it is reasonable to question, if the child’s residency situation was reversed, whether her preference would then go to her mother.
…
48.Regarding the children, [A] and [J] expressed unequivocal love for their parents. Within this context, [A] clearly seeks residence with the father. [J], who is aged four and eleven months, likewise indicated a preference for residence with the father – however, given her young age, only limited confidence can be placed in her ability to effectively comprehend this matter.
At the commencement of a second and updating family report (dated 24 May 2003) Dr J explained:
The parties, the two children, and [the father’s fiancé] were respectively interviewed at the writer’s practice on 13 May 2003. [The father] and [the mother] were each interviewed for approximately one hour and fifteen minutes. [A] and [J] were seen for approximately thirty minutes. [The father’s fiancé] was interviewed for approximately twenty minutes. Prior to these interviews, the writer received a package of documents relevant to the case [the] Children’s Representative.
Due to subsequent advice that [A] had been under significant duress when interviewed (alleged by the mother), and, alternatively, that he had been emotionally abused by a post-interview interrogation (alleged by the father), the boy was again interviewed via the telephone on 23 May 2003.
Dr J then went on in his second report to make the following observations and to express the following opinions:
8.The writer formed the confident opinion that [A] (11 years old, Grade 6) continues to desire to live with [the father].
9.[J] (5 years and 10 months old, Grade 1) continued to voice a wish to live with her father. However, it was also apparent that she is soundly bound to her mother’s family unit. Given her increased age and experience in the family units since the initial report, greater confidence may be placed upon her interview comments.
…
34.[A] was clear and unequivocal in his desire to live with [the father], e.g., when called upon to say how definite his desire was, he stated, “totally”. Additionally, he said he had been considering what to say in the interview “for a couple of weeks”.
…
39.Finally, when [A] was again interviewed via the telephone on 23 May 2003, he gave the following narrative regarding [the mother’s] reaction to what he had told the writer: “Mum got upset and yelled at me, and her boyfriend also yelled at me. I went to a friend’s house. I’ve never done that before. It’s better now, she got upset, she doesn’t usually get upset. [Mr J] doesn’t usually get upset”.
40.Reciprocally, the writer also again probed for any indication that [the father] had sought to influence the child’s responses. However, [A] variously rejected any suggestion that his father had ever put emotional pressure on him, or tried to tell him what to say in any way.
41.In respect to the above information, and in the context of the boy’s advice as illuminated in the initial Family Report, the writer believes it can be confidently stated that [A] has maintained a clear desire to reside with his father.
…
49.When the matter of her residency was addressed, [J] consistently indicated she would like to live with her father. For example, she said: “I would like to live with dad, it took a long time to get with dad when at mums”, and also: “I would like to spend lots of time with daddy and [his partner]”.
50.Conversely, [J] appeared to comprehend the matter of separation from her mother, advising: “Yes, I would miss mum and [the mother’s fiancé], I love both of them I do”.
51.In respect to the above information, and in the context of the writer’s first report, it was concluded that [J] equally favours each parties’ home environment. However, it additionally appears that [J] desires to live with her father.
52.As stated in the earlier Family Report, given the child’s young age, and the fact she is not living with her father, it remains reasonable to question, if the child’s current residency situation was reversed, whether her preference would then go to her mother. However, given her increased age since the initial report, coupled with the additional time spent in each respective family unit, greater confidence may be placed upon the soundness of her interview comments.
…
60.If the current arrangement is maintained, it seems certain that [A] will continue to desire to live with his father. However, it cannot be predicted whether the child’s thwarted desire will be manifested through the emergence of some behavioural or psychological problem. The same advice can be given in respect to [J].
61.Maintaining the current arrangement will not satisfy [the father], and he will continue to suffer a sense of separation from [A] and [J].
62.If the Court rules in favour of the father, this decision will satisfy the children. Moreover, it can not be reasonably asserted that their development would be retarded in any significant way by this occurrence.
63.Placing [A] and [J] with he father will be a personal tragedy for the mother, as indicated by her acting-out behaviour when told by her son of his advice to the writer.
That Dr J was aware, when he prepared his second report, of allegations of pressure on A by the husband is clear from the following cross-examination of Dr J by Counsel for the husband, Mr Arnold (Transcript, p164-5):
MR ARNOLD: Dr [J], you’ve seen the children on two occasions, one back in June of 2002, that’s correct?---Yes.
And further in May of this year. So over an extended period. Now, it is the case that even at the first report you were aware of some indication that emotional pressure had been placed on the children as far as their choice of – an allegation of emotional pressure placed on the children as far as where they should live?---I wouldn’t stretch it that far. Certainly there was an indication of emotional pressure. No, actually, no, it does follow. If you – yes ---
But you were aware ---?---If you’re degrading the reputation of one parent it is, yes, moving that way.
But you were aware before the – you did the – you conducted the first interviews with everyone?---Yes.
And aware before the second interview that there were allegations that emotional pressure had been put on the children as far as their choice of residence, that’s correct, isn’t it?---Certainly before this – before the second report.
Certainly before the second report, okay?---Indeed, yes.
So you were aware of that. And indeed as part of – as part of the report writing process you had seen the affidavit of [Ms F], that’s the neighbour who [A] went to on the Sunday evening. Do you recall that?
---I do, and I received that report after I had seen the parties. But that’s right, and that was before I interviewed [A] on the telephone.
So you had that and prior to the second report you also had some information that there was an allegation of emotional pressure on [A] to – about where he was to reside?---That’s correct.
Yes. So in no circumstances – I mean, I put to you that the issue was at the forefront of your question of the children, is that – would that be fair to say?---It was certainly a forefront issue, yes.
And you’ve given the evidence to her Honour – well, just before that, [A] – and I think it’s already in evidence, but it seems from your report that he’s a confident young man?---Yes.
And as her Honour pointed out, communicated freely with you. And was the – the telephone call, the follow up telephone call after the incident with [Ms F] or the incident at [Ms F’s] place where he went, with what other things that you wanted to do was to find out – did you direct question as to the emotional pressure on [A]?---Yes, I did.
Yes. And even after that you were firmly of the opinion that there was none there?---Certainly nothing came up. [The children’s representative] discussed this with me. It was clear then that it would be an important issue. I did my best to establish rapport with the child. I assumed – established he was alone in the headmaster’s office and we talked around the issue a bit and I explained to him that this was important issue and had anybody been trying to get at him, his father specifically, and he variously told me that that wasn’t the case.

In the course of the cross-examination of Dr J by the wife’s counsel, Mr O’Driscoll, the following exchanges occurred concerning allegations of pressure by the husband on A, and concerning the weight that should be given to both children’s wishes (Transcript, p157-162):
HER HONOUR: I’m sorry. You’ve asked [Dr J] whether his understanding or believe is that the source of what [A] expressed to [Dr J] was sourced at [the father], is that right?
MR O’DRISCOLL: That’s so, your Honour.
HER HONOUR: But how can [Dr J] say that?
MR O’DRISCOLL: That was his belief. He has formed that belief and then from that I’ve asked him if that ---
HER HONOUR: Where does he say he’s formed the belief that [A] in effect is repeating what his father said?
MR O’DRISCOLL: That’s at paragraph 29.
HER HONOUR: Just a moment.
MR O’DRISCOLL: He stated the belief now in his oral evidence and I was extrapolating that from what was contained in paragraph 29 of the report.
HER HONOUR: Just a moment. He says, “Thus it is apparent the child sees his mother as the active party overall for the marriage failure and additionally his justification for his perspective is in part framed on knowledge”. I see. Yes, I remember reading that but I read it in a different context from the gloss you’ve got on it. I see. Knowledge which most probably originated from [the father], that is [A’s] concern over house payments.
But the question that you put to [Dr J] was virtually that the whole caboodle in 28 was [A] repeating something that [the father] had put into [A’s] mouth. Is this the flavouring of your questioning?
MR O’DRISCOLL: Essentially, your Honour, yes. Yes, your Honour.
HER HONOUR: I didn’t miss the flavour of your question, did I?
MR O’DRISCOLL: No, you did not, your Honour, that’s correct.
HER HONOUR: Okay. Well the question is not supported by paragraph 29 or any other evidence and I don’t think it’s a proper question. In case I’m wrong that it’s not a proper question you can put the question but you really need to be very careful because you are questioning as if [Dr J’s] report says that in paragraph 28 the child repeated something put in his head by the father. And that’s not what [Dr J] has concluded.
MR O’DRISCOLL: I apologise, your Honour. The question and the source of the information is in ---
HER HONOUR: Rather that some knowledge may have come and the example he’s given is that [A] had the knowledge that the mother didn’t help pay off the house after she left.
MR O’DRISCOLL: I appreciate that, your Honour.
HER HONOUR: Okay. It’s very different from influencing somebody’s wishes.
MR O’DRISCOLL: Did you follow that, Doctor?---I did, yes.
The source of the information in paragraph 28 --- ?---Yes.
--- as distinct from paragraph 29 --- ?---Yes.
--- did you form any opinion as to where the origins of that information came from?---Yes, I – as I indicated, it’s illustrative to get these sorts of narratives and I felt it was reasonable to presume that some of that information, the house payments in particular, would have been sourced from the father.
Now – and if the evidence you’ve just give, and the factual assertion is made that in fact they were stated, would you view that as compromising the child’s wishes?---And you said emotional manipulation before.
I may have?---I would agree with that. Yes, it is. It’s not appropriate.
And certainly if I put to you that there has been ---
HER HONOUR: Sorry, what’s not appropriate?---I wouldn’t think so, your Honour no.
What’s not appropriate?
MR O’DRISCOLL: Emotional manipulation.
HER HONOUR: Of course not?---Yes.
Well, we all know that but are you saying that it’s not appropriate for a father to have given knowledge to a son that a mother hadn’t contributed to house payments?---Yes, I am, your Honour.
All right, yes, I understand now.
MR O’DRISCOLL: Yes.
HER HONOUR: Thank you. And are you saying that that’s emotional manipulation?---It could be, your Honour. Indeed, it could be. And I think framed up in the way it was probably – I’m only speculating. Yes, it sounds like it was damaging the mother’s presentation in the child’s eyes.
I understand?---Yes.
Okay, thank you.
MR O’DRISCOLL: And particularly I’m asking you to assume that there’s been an allegation that the children informed the mother that the father said that if you do not tell the report writer, that is you, that you wish to stay with me --- ?---Yes.
--- you will never see me again. Again would you view that as emotional manipulation of the child?---If that had occurred – I was advised by … the children’s representative, of that allegation and I did seek to find if there was – if I could support that allegation and I couldn’t find that that allegation was supported by [A].
But you questioned [A] in respect to that aspect?---I did.
And again if – again an allegation has been made that the father had said words to the effect that there was some reward behaviour going on, that if you, you know, reside with me you will be rewarded. Again would that be emotional blackmail?---It would be. And I have not heard of that allegation but for this morning.
And if, Doctor, as factual issues that ---
HER HONOUR: Sorry, not heard both of those allegations or just the second one?---Just the second one, your Honour.
The reward behaviour?---Yes, your Honour.
Never heard that from anyone till today?---That’s correct, your Honour.
All right. Yes.
MR O’DRISCOLL: And if that resolution of fact with those last two allegations --- ?---Yes.
--- are made that they did occur, one – does that temper – or one has to see the light of [A’s] assertion as where he wants to stay in light of an emotional manipulation?---Yes.
And decreases the strength that the Court or her Honour must take in relation to assessing the wishes?---Indeed, yes. It would indicate the child has been under some duress or there was some other agenda and I couldn’t get to that.
Because the other extrinsic evidence, if I put it that way, is that [A] is doing well and is being enhanced at school, you state that in your report?
---He told me that, yes.
And is enjoying residing with [the mother] and [Mr J]?---Yes, he said he ---
So from what you’ve been able to pick up there has been no external manifestations of him being disadvantaged or suffering staying with [the mother] which currently is going against his wishes as related to you?---No, not at all.
Unless he has been emotionally manipulated to state those things?---Now, you’ve probably led me a little further than I can recall. I was quite confident that [A] said he wanted to be with his dad. And that he knew what I was asking him and that he was quite clear as to loving both family units. He made some very favourable comments about [Mr J]. But when it came down to it, the bottom line was he wanted to be with his father.
HER HONOUR: Did you accept that as his genuine wish?---I did, your Honour.
All right, thank you?---I did, yes.
Genuinely expressed wish?---I felt so. I did. I felt that was what we were getting to and that he saw that we were leading up to that and that he was aware that I really wanted to get an understanding of what he wanted and knew that I would be conveying this in the Court.
Yes, all right.
MR O’DRISCOLL: And similarly then, just dealing with [J]. [J] told you that my daddy hates mummy because mummy and daddy are not married?---Is that in my first report?
Yes, at paragraph 39?---Right.
[J] also had her own short narrative to do with the marriage failure. My daddy hates mummy because mummy and daddy are not married?---Yes, thank you, yes, yes.
And again, the adults are indicated how they feel or displaying hate to each other would be again grossly inappropriate?---Yes.
Yes, I have no further questions.
HER HONOUR: Yes, thank you, Mr O’Driscoll. Tell me [J] – just remind me in a nutshell. I’ve read your reports?---Yes.
But it was, I think, the night before last. Just remind me in a nutshell your conclusion concerning [J]. What wish did she express to you?---Yes. [J] expressed a wish also to live with her father.
Yes. And did she say why?---No, she didn’t give those sorts of reasons. She spoke about the desire to spend time with the father. She acknowledged and I had her use the hands apart technique that she loved or was equally bonded to both family units but I felt that she could make a distinction then in respect to wanting to be with her father and likewise an appreciation that she would miss her mother.
Sorry, she wanted to be with her father?---Yes.
And she did have an appreciation that she would miss her mother?---Yes, your Honour.
What did she say to you, do you recall, or is it in your notes somewhere?
---I would have to go to my notes.
That’s all right. I assume that somewhere in your report you’ve similarly said that [A] is equally bonded in both family units?---yes, he made that clear.
And I asked you about the bottom line, as it is, in respect of [A] and you said that he felt that that was [A’s] own genuinely expressed wish to live with the father. What view did you form about [J’s] expressed wish, that it was her own and genuinely held or perhaps a bit unsure?---Yes, yes. No, I felt that it was her own expressed wish, but I was talking to a little child and I think it’s important for me to say that there still is a doubt in my mind just how firmly she has that view, given that it’s possible if the circumstances were reversed she may be missing her mother.
I think you actually said that in your report, didn’t you?---I did, that’s right. So I think given that she is only in grade one and just a child.
Just one moment. So if the residency were reversed in fact her wishes might be reversed?---Yes, I think.
And yes, what was your view, having interviewed [A], of his level of maturity age wise?---Yes. I thought he was quite a mature boy, actually.
Yes?---Yes, I think ---
Age appropriate?---Very age appropriate, yes.
The difficult that he has doesn’t make him younger than his 11 years?---No, I didn’t notice any signs of a development disorder and as I’ve stated he didn’t know that he was supposed to have one if I could – so to speak.
Yes?---And ---
So you yourself, with this little boy in front of you wouldn’t have though my goodness this boy has got autistic something disorder?---No. And he wasn’t a little boy. He’s a middle childhood boy. He’s a fairly biggish boy – child.
I see. He’s a robust fellow?---Yes.
Okay, So what is called again, autistic?---Spectrum disorder.
Spectrum disorder. You didn’t think gosh this child has autistic spectrum disorder?---Not at all. There were no communication problems at all.
All right. And now I suppose you’d say that [J], at six years, is not of an age of age or maturity for her expressed wishes to carry great weight?
---Not as much weight, your Honour.
Not as much?---We know that a child as young as three or four can tell the difference between a good and a bad secret. Children do have an understanding of mind.
Yes?---But it’s a big ask for a child.
What – did you form any view as to [J’s] age, level of understanding as to the issue?---Yes, I felt ---
And her maturity?---Yes, I’m sorry. Yes, I felt she was quite age appropriate. She sat and was very attentive and for her age, as a child, I think she spoke her mind as she knows it.

The only exchange of any relevance or substance between Dr J and counsel for the children’s representative related to A’s autistic spectrum disorder and was as follows (Transcript, p165-166):
MS DEMACK: Arising from something that Mr O’Driscoll asked and I can’t give you the specific, [Dr J], the children were clear that what they were telling was what would be conveyed to the Court?---Yes, Ms Demack, that’s exactly right.
Moving on, [A] and his diagnosis of autistic spectrum disorder were you aware of that diagnosis through perhaps [the children’s representative] before you interviewed the child for the first time?---I believe I was in respect to the package of documents that I received and indeed I think I’m correct, I could be wrong here, but I think there was at least one letter from paediatrician [Dr G].
[Dr J], are you in a position to comment, and let me know if you’re not, whether a child with autistic spectrum disorder who has been assessed as a level 5 – has been ascertained as a level 5 need of support. And if you can’t answer this specifically or generally please let me know and let me know --- ?---Yes.
--- if it’s a general or specific answer?---Yes, yes I will.
Does a child with that level of need and with that disorder suffer from or experience the reality in a way which, if they get an idea into their head, they are difficult to shift from that?---Mm.
And how does that fit in with respect to a child who doesn’t have autistic spectrum disorder?---What a question. As I understand it, level 5 ascertainment is the most serious level of ascertainment.
I think there might have been a level 6?---Seven? Six, is it? Yes, yes.
HERE HONOUR: It’s pretty high up there though, is it?---Yes, I believe it is, yes.
MS DEMACK: So that’s a high need of support?---Yes, it is. Yes, it is. Look, Ms Demack, I think I would have to say that no, that is immediately out of my ken to give you a specific answer. I would just ---
HER HONOUR: More a medical question, isn’t it? Or perhaps not?---Certainly it is a paediatric question.
Sorry, it’s a paediatric?---A paediatric question. I don’t feel competent to actually advise the Court at the moment. I would have to reference.
The questioning of Dr J by Counsel for the wife and by Counsel for the children’s representative, and also the submissions to the trial Judge of the children’s representative (from which we will shortly quote) must be read against the following passages from the oral evidence of the wife and of the husband, which were relied on before us by Counsel for the wife in opposition to the appeal:
[MS DEMACK] Right. And repeat for me what you say [A] said?--- [THE MOTHER] [A] said – [A] said if I don’t – if I didn’t say that, dad said that I wouldn’t see him any more. (Transcript 15/0703, p47, line 33; Appeal Book Volume 2, p203)
…
[MS DEMACK] Well tell me what they said. Don’t tell me what your interpretation of it is. Tell me what the children told you?--- [THE MOTHER] “Daddy thanks us for what we told the man”. (Transcript 15/07/03, p49, line 15; Appeal Book Volume 2, p205)
…
[MS DEMACK] And [J], what was she – did she say anything?---[THE MOTHER] She agreed. She just went and was nodding. She was next to [A]. She was nodding and saying yes. (Transcript 15/07/03, p49, line 29; Appeal Book Volume 2, p205)
…
[HER HONOUR] But I just want to know for my purposes – I’m just making sure that you said to me a minute ago --- ?---[THE FATHER] Yes.
--- that you said to the children, “You should tell the man in Rocky who you want to stay with.” Now, did you say that to the children or not?---I said, “It is up to you to say to the man who you would like to stay with.”
“It is up to you to say to the man who you would like to stay with?”---Yes. (Transcript 16/07/03, p103, line 5; Appeal Book Volume 2, p243)
…
[MS DEMACK] Of saying with whom they would like to live. The burden of being asked?---[THE FATHER] Oh, I think it’s a sad situation where they do have to be burdened with that, yes, very much so. It would be horrific for that child to have to make that decision. It’s a very, very sad circumstance. (Transcript 16/07/03, p131, line 10; Appeal Book Volume 2, p268)
…
[MS DEMACK] So by the time of the second family report you knew that – well, for the interviews for the second family report you know that [Dr J] would be asking about the children’s wishes to the children?---[THE FATHER] Yes. (Transcript 16/07/03, p131, line 24; Appeal Book Volume 2, p268)
…
[MS DEMACK] And you said one or other, or, perhaps, both of these, “Important that they say where they would like to stay with,” or, “It is up to you to say to the man who you’d like to stay with.” They’re my two notes, which I’ve put down in quotes, that doesn’t mean that I got all of the words, and her Honour may have got more words, but especially that second on, “It is up to you to say to the man who you’d like to stay with”? ---[THE FATHER] That ---
That was your oral evidence to the Court?---Yes, yes. My son, has after the first family report, has said to me that he wants to stay with me, and on saying that he is going for a family report, he said what he would like to – he said that, you know, he still wants to stay with me. And I said, “Well, it’s up to you who you want to stay with.” I said, “It’s your decision.” I said, “Mummy loves you and I love you, it’s purely your choice.” It’s his choice, and I’ll stand by that. (Transcript 16/07/03, p131, line 37; Appeal Book Volume 2, p268)
…
[MS DEMACK] Did you ever tell [A] that he could just not answer the question, that he doesn’t have to make the choice at all?---[THE FATHER] I wasn’t aware of it – that was the question that would be asked til the first report was done. My – had it ever occurred to me. Well, having known the first report was done I knew that it would be asked in the second report, and [A] had reiterated that to me, that – it had been talked about and where he normally stays during the school week so – and he’s always saying to me whenever I see him, when I go to bring him back, he says, “Daddy, can I stay with you? I do not really like to go back.” So I was just saying ---
HER HONOUR: Answer the question, please?---Sorry. So, yes. I did not think of ever saying to him – to say – I had never thought to say to him, “Don’t say anything.”
MS DEMACK: No, no, have you ever thought to say to him, “You don’t need to make a choice, it’s not up to you, darling. It’s not a matter of choosing between you mother and your father[”]?---Well, that’s right, it’s not up to us. It’s up to the Court.
HER HONOUR: Answer the question, please …. You weren’t asked whether in your opinion it’s up to you or not; you were asked a different question of whether you’ve thought of saying to [A], “Hey, you don’t have to answer that question”?---I hadn’t thought of it. (Transcript 16/07/03, p132, line 40; Appeal Book Volume 2, p269)
…
[MS DEMACK] You’re close to [A]?---[THE FATHER] Yes.
You love him dearly, clearly. You’re aware for both [A] and [J] that because you have been a parent with them all of their lives that they know what makes daddy happy and what makes daddy sad?---Mm.
That’s correct?---Yes, yes definitely. (Transcript 16/07/03, p133, line 21; Appeal Book Volume 2, p270)
The written submissions of Counsel for the children’s representative are of particular significance in so far as the matter of the children’s wishes is concerned. Accordingly, we consider it necessary to set out the relevant passages from Counsel’s submissions, notwithstanding their length:
The Children’s Representative caused two Family Reports to be prepared by [Dr J], clinical psychologist. The first report is dated 22 June 2002 and is annexed to [Dr J] affidavit of 3 February 2003. The second report is dated 24 May 2003 and is annexed to his affidavit of 18 June 2003.
In both of those reports, [Dr J] finds that both of the parents had appropriate and adequate parenting skills which could not be reasonably faulted. The central issue that [Dr J] was examining was the wishes expressed by the children.
When [Dr J] first interviewed the children in June 2002, [A] was aged 10 and [J] was aged 4 years and 11 months. At the interviews for the second report in May 2003, [A] was aged 11 and [J] was aged 5 and 10 months.
At the interviews for the first report, [A] clearly sought residence with his Father. [Dr J] reports that [J] likewise indicated a preference to residence with her Father. In the second report [Dr J] reports that “[A] has maintained a clear desire to reside with his Father” (page 9, paragraph 41). And further in that second report, [Dr J] concluded “that [J] equally favours each party’s home environment. However, it additionally appears that [J] desires to live with her Father.” (page 10, paragraph 51). Clearly the wishes of the children have played a significant part in the matters were aired in front of your Honour and they will be the main focus of these submissions to your Honour.
…
It is clearly very important that the views which are expressed by children be done in a way which maintains the integrity of those views. Because children must not [be] subjected to the experience and the trauma of the Court room, it adds even greater burden on the report writer to ensure that the report accurately reflects those matters which the Court needs to take into account. But it goes further than that, it is respectfully submitted. It is incumbent on the caring adults in the children’s lives to ensure that any of their acts or omissions, whether verbal or non-verbal do not create the impression for the children that the children that the children (sic) should express any particular wish. To be clear, it is my submission that the integrity of expressed wishes of children is irreputably damaged by the children’s desire to please either one or the other of the parents.
[Dr J] is an experienced author of Family Reports for the Family Court. [Dr J] understands, it is my submission, the importance of ensuring, as best he can, that the wishes being expressed by children are done in a way which, as best he can tell, are free from influence. Your Honour has heard of the suggestion that [A] had been influenced by his Father and that allegation coming to light following the interview for the second report. Your Honour is aware that allegation caused [Dr J] to recontact [A] by telephone and to have a further interview. As your Honour is aware, [Dr J] set out his findings in his second report on page 8, from paragraph 39 to 41.
It is of great concern to the Children’s Representative that the Father may have influenced [A] to the extent that [A] expressed the wishes that he did with a degree of force that [Dr J] reports. Clearly, [Dr J] was satisfied in his second report that [A’s] wish was genuine. It is the Children’s Representative’s position and it is my submission that although [A’s] wish was genuine, his wish had been influenced by his Father’s behaviour and by statements his Father was making. May I make it clear at this stage, your Honour, that the Children’s Representative does not submit that any influence by the Father was done maliciously, or, probably, intentionally. Rather the Father’s parenting style and perhaps his tendency towards speaking about feelings, opened up a repeated communication about [A’s] expressing of his residency wishes.
It was clear from the Father’s evidence that the issue of residency came up in his conversations with [A]. His evidence included conversations along the lines of “that it was [A’s] choice where [A] wanted to live during the week” and further along the lines of “it is up to you, to say to the man who you would like to live with.” Clearly, [A] was led to believe that it was important that he specify a choice and that choice was going to have a real outcome for his life. It is the Children’s Representative and it is my submission that this [is] a (sic) intolerable position to put a 10 or 11 year old child in.
I note at this stage that [A] had been diagnosed with Autistic Spectrum Disorder. I note that the parties stated that [A’s] suffering from this condition was not an issue that they felt had any bearing on the proceedings, or words to that effect. Further, I note that [Dr J] states in his second report that [A] told him that he, [A] does not believe he continues to suffer any psychological problems. It was the Mother’s evidence that [A] is receiving support in his school at Level 5F. As you Honour heard, in terms of support for children in State Schools Level 6 is the highest need which is provided for. Therefore Level 5 is support of a significant level. In cross-examination [Dr J] stated that he found [A’s] level of maturity to be quite mature and to be age appropriate and further [Dr J] found no signs of developmental disorder. It is difficult from my perspective to reconcile those two divergent opinions. On the one hand, the school supports him at a high level. On the second hand, the experienced clinical psychologist finds no signs of developmental disorder.
It is my submission that your Honour would have to find that [A] does suffer difficulties. Your Honour may easily assume that the State School system would not be spending funds or resources supporting a child who did not require support. [A] does suffer from Autistic Spectrum Disorder and his wishes must be given weight which corresponds. Because of [Dr J’s] opinion it is difficult for me to make submission as to what that corresponding weight would be. But I submit that your Honour must take it into account and lessen the appropriate weight accordingly.
It is noted again, that [A] was 10 in the first interview and was 11 at the second interview.
At the end of [Dr J’s] first report he stated that “if a single weekend/fortnight contact arrangement is established, it will be significantly upsetting to [A], and maybe upsetting to [J]. Moreover, in the medium to long term, it is unclear whether the children would comfortably adjust to the arrangement, or (particularly in [A’s] case) become more dissatisfied. And further [Dr J] went on to say “a more extended contact arrangement (ie. more than two days/fortnight) is likely to suit the children. However, if not managed by the parties in terms of their respective advice to the children, such an arrangement may serve to intensify their (the children’s) desire to live with their Father.” (page 13, paragraph 49(1)(2)). In [Dr J’s] second report on page 11 at paragraph 30, he stated “If the current arrangement is maintained, is [sic] seems certain that [A] will continue to desire to live with his Father. However, it can not be predicted whether the child’s thwarted desire will be manifested through the emergence of some behavioural or psychological problem. The same advice can be given in respect of [J].”
Your Honour will have noted that the first report was in June 2002 and the second report in May 2003. Further your Honour would have noted that the current regime came into place in November 2002 and has continued to the date of trial. There is no evidence before your Honour that the children have suffered any psychological or other difficulty or damage arising from the continuing state of spending more time with their Mother than with their Father. It is respectfully submitted that there is no evidence before your Honour which would satisfy your Honour that any possible harming of the children because of any thwarted desire is anything other than speculative. Your Honour may consider that if there was to be any harming that would have already occurred in the time within the two Family Reports.
Your Honour would be familiar with the cases which refer to the wishes of children. I refer your Honour to R and R Children’s Wishes [2000] FaCA 43 wherein the Full Court of the Family Court of Australia referred to the matter of Harrison and Woollard (1995) 18 Fam LR 788 and the matter of P and P (1995) FLC 92-615. It is the case that it is important for your Honour to give proper weight to the wishes of [A] and [J] but the Full Court does not say that you are bound by them. Clearly, your Honour, appropriate and careful consideration must be given. Your Honour would be satisfied that [J] is of an age where her wishes are of little weight. It is my submission that the weight to be given to [A’s] wishes should be looked at in line with his age of 11, his Autistic Spectrum Disorder, and the evidence of the Father of the discussions which he had with the child which the Children’s Representative would say were inappropriate and bound to create an affect on the child.
…
Given the even nature of the remaining factors of 68F(2) of the parties, the Children’s Representative submits that that matters referred to in sub(a) take on increasing importance. Having said that, the Children Representative submits that your Honour’s findings with respect to the wishes of [A] will lead your Honour to the point that your Honour can not be satisfied that those issues should be given weight which would result in a change of residence. It is the Children’s Representatives position, and it is my submission, that the children should remain living where they are. The children are settled and stable where they are and any change in residence, on the evidence, is not justified.

The trial Judge’s treatment of the children’s wishes

Her Honour’s discussion of the children’s wishes can be seen to begin with her discussion of the evidence of Dr J in the following paragraphs from her judgment:
71.It is not necessary to refer in detail to [Dr J’s] two reports. It is sufficient to say that the cross-examination centred around paras 27-29 of the first report, and para 60 of the second report.
72.I prefer to concentrate on [Dr J’s] oral evidence, which I was able better to assess, than his forensic reports.
73.In his oral evidence, [Dr J] said that the source of the information referred to in para 28 of the first report was, in his opinion, from the father. He said, unequivocally, that it was inappropriate for a child such as [A] to have such information, that the father had acted inappropriately in giving that information to [A] and that the father’s conduct in doing so was “emotional manipulation”.
74.However, [Dr J] drew a clear distinction between, on the one hand, information given to a child (that is, knowledge of facts or occurrences or events as between parents, and a child’s mere repetition of that information) and, on the other hand, a parent’s coaching of a child as to what to say when he or she is asked to express a wish. Whilst both are forms of emotional manipulation, the one is merely passing on information, the other concerns the child’s wishes. The task of the interviewer is to identify whether the children’s wishes are expressed as the result of emotional manipulation, or are the child’s own wishes, genuinely expressed.
75.In respect of [A], [Dr J] said that the “bottom line” is that “I was quite confident that [A] was clear that he wished to live with his Dad”, and that in his opinion that was “[A’s] own genuinely expressed wish” and not the result of any emotional manipulation by the father.
76.[Dr J] said further that [A] impressed him as a robust and confident boy. His level of maturity is “age appropriate”. [A] did not exhibit any overt signs of ASD. [A] had “no communication problems” with [Dr J].
77.As to [J], [Dr J] said that [J] had also said to him that she wished to live with the father. She did not say why, but “spoke of a desire to spend time” with the father. He said that [J] is equally bonded to both family units. She “wanted to be with the father”, but “had an appreciation that she would miss the mother”.
78.[Dr J] said that in his view [J] expressed her own genuine wish to him, but that there was doubt in his mind in respect of [J], having regard to her age, “just how firmly her wish is held” so that, if the current residence situation were reversed, she might just as easily have reversed her wishes.
79.[Dr J] said that, in his view, [J’s] level of maturity as to her understanding of the issues is “for her age”, and that “she spoke her own mind, as she knows it now”.
80.[Dr J] said that, in respect of the children, he had not considered the prospect of sibling separation, as the circumstances of the children’s expressed wishes did not give rise to that. He said that he is strongly of the view that siblings should be together.

Her Honour’s findings and conclusions in relation to the children’s wishes were then as follows:
102. The Court is faced with an unusual complexity concerning the children’s wishes. The child representative engaged [Dr J] to assess the children’s wishes…
103. The complexity arises because [Dr J] formed the view, as referred to above, that [A’s] wish to live with the father is his genuinely expressed wish, and did not result from any emotional manipulation by the father. Further, [Dr J] concluded that [A’s] level of maturity was “age appropriate”, that [A] did not exhibit any overt signs of his ASD condition and that [A] did not have any “communication problems” with him. [Dr J’s] conclusion in oral evidence was that “I was quite confident that [A] was clear that he wished to live with his Dad”. This is strong and persuasive evidence. Yet the child representative, who engaged [Dr J] has expressed through the written submissions of Ms Demack of Counsel, who is very experienced in child matters (page 4):
“… [A] does suffer from Autistic Spectrum Disorder and his wishes must be given weight which corresponds. Because of [Dr J’s] opinion it is difficult for me to make submission as to what that corresponding weight would be. But I submit that your Honour must take it into account and lessen the appropriate weight accordingly.”
And (page 5):
“… It is my submission that the weight to be given to [A’s] wishes should be looked at in line with his age of 11, his Autistic Spectrum Disorder, and the evidence of the Father of the discussions which he had with the child which the Children’s Representative would say were inappropriate and bound to create an effect on the child.”
104. There is no evidence that [A’s] ASD may have affected his strongly expressed wish to reside with the father. To find so may be contrary to [Dr J’s] evidence. However, it must be borne in mind that [Dr J’s] evidence was that [A] did not exhibit any overt signs of his ASD condition. That is not to say that the condition should be disregarded by the Court. This is so despite the fact that, as recorded earlier in these reasons, the parties themselves at the outset of the hearing agreed that [A’s] ASD condition should have no bearing on the question of his residence.
105. In all of the circumstances, it is proper for the Court to heed Ms Demack’s careful submissions. It is impossible to assess, ultimately, just what effect the father’s conversations with [A] had on the expression of [A’s] wishes, in the light of [A’s] ASD condition. The result is that the Court should proceed cautiously, in this case, so as not to give undue weight to [A’s] expressed wishes, despite [Dr J’s] strong evidence. As has already been noted earlier in these reasons, [A] attends the level 5 IEP, which is one of the highest levels of the programme, ranging from level 1 to level 6. This cannot be disregarded in assessing the weight to be given to [A’s] expressed wishes.
106. Thus, I do not consider that in this case [A’s] expressed wishes should be the determinative factor concerning his residence, especially because to carry [A’s] wishes into effect may have the necessary result that [J], who is only 6 years, would also reside with the father. This would arise because there has been no suggestion by the parties, the children’s representative or [Dr J] that the siblings in this case should be separated, and further, there is no evidence as to the effect of separation on the siblings.
107. The weight to be given to [A’s] wishes must be considered also in the context of [Dr J’s] evidence concerning [J’s] wishes, to the effect that, having regard to her age, she cannot as yet express a genuine wish.
108. Ms Demack, in her careful written submissions, referred to the authorities to the effect that, whilst proper weight must be given to children’s wishes, the Court is not bound by them.
We mention here that her Honour’s reference in paragraph 104 of the last quoted passage, to the parties’ agreement in relation to A’s autistic spectrum disorder (“ASD”) has to be read against the background of her Honour’s earlier comments in her judgment where she said:
21.[A] has Autistic Spectrum Disorder (ASD). At school, he attends the intensive education programme (IEP), at level 5, which is one of the highest levels of the programme, ranging from level 1 to level 6. The programme operates such that each six months a learning programme is written for him. [A] does not acknowledge that he suffers from the disorder. [Dr J], clinical and forensic psychologist engaged by the child representative, said in oral evidence that [A] is a “confident young man”, and that he does not have overt signs of ASD. The father said to the effect that [A] presents “as a normal boy”.
22.At the outset of the hearing, the parties agreed that [A’s] ASD condition should have no bearing on the question of his residence.
Her Honour’s ultimate conclusion in relation to the question of the residence of the children was as follows:
133.With some hesitation I have decided, based on the above analysis, that the children’s best interests would be served by their continued residence with the mother, and that contact with the father should be on the basis agreed between the parties earlier noted in these reasons.
134.My principal reasons are these. [A] has expressed a strong wish to reside with the father. However, despite [Dr J’s] evidence as to his confidence that this is [A’s] genuinely expressed wish, I accept Ms Demack’s submissions to the effect that the Court should be cautious in the weight attached to them, for the reasons outlined. [J] is too young to express a wish to which the Court should attach any great weight.
135.Having regard to [A’s] ASD condition, the Court would be likely to have greater confidence in giving weight to his expressed wishes in a few more years, perhaps when he is aged 13 or 14, especially because, as already observed, to carry [A’s] wishes into effect may have the necessary result that [J], who is only 6 years, would also reside with the father. This is so because there is no evidence that the siblings should be separated, and no evidence as to the effect of the separation of the siblings.
136.It may be appropriate to review [A’s] wishes in a few years time, when he is aged 13 or 14 years. However, at this stage of the proceedings, for the reasons advanced by Ms Demack of Counsel, [A’s] wishes should not be determinative or (sic) the residence of the children.
137.The children are in a stable environment at present. They have always lived with the mother, except for a short period of shared residence. There is no evidence as to what effect there may be on the children if their residence should now be changed to the father’s residence.
138.I have expressed earlier in these reasons some reservations concerning the mother and [Mr J]. However, I am unable to elevate these reservations to a level of concern.
139.The parents live within a very short distance from each other, so that the contact I propose should not present any difficulty. The contact orders I propose should ensure that the children’s relationship with the father is maintained and nurtured.
140.Both parents have the capacity to parent the children. I have already expressed some concern at the very early hour of 6.30am at which the mother leaves the children with a child minder, and that at the date of trial, a third child minder, as yet unknown to the children, was to be engaged. However, this factor must be weighed against the effect on the children of a change to the father’s residence, which they have not experienced, except for the very short period of shared residence.
141.It may be that with the passage of time [A] continues to express the wish to reside with the father. If the mother considers it appropriate, then in due course perhaps she should give effect to that wish, later in time, by agreeing consent orders with the father. There is no reason why the mother ought not consult [Dr J] about that, if [A] should continue to express that wish or if he should appear unsettled by continued residence with the mother.
142.However, in all of the circumstances, the best decision the Court can make, on the evidence, and having regard to the statutory factors and the submissions of the parties and the child representative, is that there is no good reason to risk the children’s stability now by ordering a change of residence.

The husband’s complaints concerning the trial Judge’s treatment of the children’s wishes

The husband’s complaints concerning her Honour’s treatment of the children’s wishes are detailed in his first ground of appeal which is in the following terms:
1.The trial Judge failed to treat the children’s wishes in accordance with the law because:-
(a)The child [A’s] wishes were clearly and unequivocally in evidence before the Court;
(b)The child J’s wishes (contrary to the Trial Judge’s findings) were clearly and unequivocally in evidence before the Court;
(c)The Trial Judge gave no weight, or inappropriate weight, to the children’s wishes;
(d)The Trial Judge erred in discounting the children’s wishes on the bases of age, level of understanding or any other factor, given there was no evidence to substantiate a discount of the children’s wishes;
(e)The Trial Judge erred in determining that the child [A’s] Autistic Spectrum Disorder had any bearing on the development of and adherence to his long held wish to reside with his father (paragraph 105);
(f)The trial Judge’s decision to discount the children’s wishes was contrary to the evidence;
(g)The Trial Judge’s finding that [Dr. J’s] evidence was that the child, J, could not express a genuine wish as to where she was to reside (paragraph 107) was in error;
(h)The Trial Judge’s total discounting of the child J’s wishes was contrary to the evidence;
(i)The Trial Judge was in error in accepting the submissions of the Children’s Representative on the issue of the children’s wishes where the children’s wishes were not based on any evidence, contrary to the evidence led by the Children’s Representative and based upon indeterminate reasoning;
(j)The Trial Judge erred in determining that the issue of the children’s issues was “of unusual complexity” when no such complexity was apparent;
(k)The trial Judge erred (paragraph 112) in disregarding the disharmony between the mother’s partner and the child [A] on the evening of Sunday 18^th May 2003 where the actions of the child [A] were important in assessing the strength and significance of the child’s wish to reside with his father.
(l)The Trial Judge erred in discounting the wishes of the child [A] on the basis that to give vent to those wishes would see the child [J] also reside with the father, particularly where the child [J] also expressed a wish to reside with the father;
The submissions made to us by Counsel for the appellant husband in support of this first ground of appeal are well encapsulated in the following paragraphs from Counsel’s written summary of argument:
4. …
(a)both [A] and [J’s] wishes were clearly and unequivocally in evidence before the court; coming from the family report writer, [Dr J], by two reports and oral evidence…
(b)the validity and genuineness of the wishes had been the subject of enquiry by [Dr J] particularly as to allegations that the children were coached into these wishes;
(c)[Dr J] was cross examined about his enquiry and held his opinion that the wishes were genuine and sincerely held; …
(d)the wishes of the children were finally rejected as important by the trial judge for two reasons. First that [Dr J] found [J] could not express a genuine wish and for [A] the combined effect of [A’s] ASD (autism spectrum disorder) and age. The appellant says the rejection was wrong and contrary to the evidence because –
(i)there was no evidence that [A’s] ASD had any bearing on the development of or an adherence to [A’s] long held wish to reside with his father. Indeed the opposite was the case, [A] was found by [Dr J] to be “mature” and “very age appropriate”…
(ii)[A] was 11 years of age and no evidence (particularly from [Dr J]) was before the court that his age should derogate from his wishes, again, the opposite was the case…
(iii)there was no finding by [Dr J] that [J] could not form a genuine wish… It was only his opinion that [J’s] wishes should be given less weight because of her age;
(iv)to diminish the importance of [A’s] wishes because to vent those wishes and see [J] reside with the father was an irrelevant consideration and in error particularly when [J] expressed a wish to reside with her father;
(v)the “issue” of the children’s wishes was simple, straightforward and (contrary to her Honour’s findings) was not of unusual complexity;
(vi)the importance and significance of the children’s wishes had been demonstrated in the behaviour of the child [A] on Sunday 18 May 2003.
5.The determination by Her Honour in relation to the children’s wishes was an unquestioned acceptance of the submission of the child representative and her counsel… The submission of the child representative was wholly based upon [A’s] inability to form a desire to reside with either parent because of ASD, his age and discussions between father and son. Yet there was no evidence before the court that ASD would effect or have any bearing on the development of or adherence to his long held wishes to reside with his father. This position was contrary to the evidence led by the Separate Representative and contrary to the position reached by the parties that [A’s] ASD had no bearing on the issue of residence. There was no evidence that his age would affect or have any bearing on the development of or adherence to his long held wish to reside with his father. Further, the question of the genesis and genuineness of [A’s] long held wishes were exhaustively considered by the Family Report writer. He had the utmost confidence in them – a confidence unmoved by cross examination.

Conclusion in relation to the appeal against the parenting orders

In light of our earlier examination of the evidence of Dr J and of the submissions of Counsel for the Children’s Representative, we consider that there is considerable substance in these submissions made on behalf of the appellant husband.
It seems to us that her Honour decided not to give effect to, or to place only very limited weight on, A’s wishes, on account of a concern that his wishes might have been unduly influenced by his father and because of his ASD condition. It seems that her Honour was also concerned about the impact on J of giving effect to A’s wishes.
It is clear from Dr J’s second report and from his oral evidence that he knew of the allegations of pressure from the husband on A and that he interviewed the child against the background of that knowledge. However, Dr J maintained his position that the child’s wishes were genuinely expressed. He did not suggest that those wishes should be given less weight because of any alleged pressure from the husband. We therefore have great difficulty in understanding how, against the background of Dr J’s evidence, her Honour could have accepted the submissions of the children’s representative and lessened the weight which she gave to A’s wishes on the basis of alleged pressure from the husband.
However, it seems, particularly given what her Honour said in paragraph 105 of her judgment, that she concluded (possibly in light of the submissions of the children’s representative) that A’s ASD condition may have made him more vulnerable to pressure from his father or less able to formulate his own wishes. The difficulty with this conclusion is that, as her Honour herself had noted in paragraph 104 of her judgment, there was no evidence that A’s ASD condition “may have affected his strongly expressed wish to reside with the father.” Her Honour seems to have overcome this difficulty by relying on the fact that Dr J had not been prepared to comment on the diagnosis of ASD in A.
Whether or not Dr J had accepted that A had that condition, it was not, in our view, open to her Honour to lessen the weight to be attached to A’s wishes on account of his ASD condition in the absence of expert evidence concerning the impact of that condition on the child’s capacity to formulate his own wishes or to resist pressure from his father. It is also of concern to us that the parents had apparently agreed at the outset of the hearing before her Honour that A’s ASD condition would have no bearing on the question of his residence. If her Honour considered that the condition had relevance, the parties should have been given an opportunity to address the issue by calling expert evidence.
While her Honour was no doubt correct in adopting a cautious approach to A’s wishes because of the impact that those wishes would have on J’s future (it being accepted that the children should not be separated), her Honour appears in paragraph 107 of her judgment to have overlooked Dr J’s assessment in paragraphs 29 to 52 of his second report of the greater weight that could now be given to J’s wishes, and also Dr J’s responses to the questions of Counsel for the children’s representative concerning J in the passage of transcript quoted above.
We are, of course, mindful of the authorities such as Gronow v Gronow (1979) FLC 90-716 which caution against an appellate court interfering with a trial Judge’s decision on the basis only of the conflicting assessments of the weight to be accorded to a particular matter. We are also mindful of those authorities such as R and R (Children’s Wishes) (2002) FLC 93-108 which make it clear that a court is not bound to accede to the wishes of a child. Nevertheless, we are satisfied that, given the state of the evidence before her, there was no justification for her Honour limiting the weight which she gave to A’s wishes in the way in which she did and for the reasons which she did. Nothing put to us on behalf of the wife or of the children’s representative has persuaded us to a contrary view.
Our conclusion that her Honour has erred in the weight which she accorded to A’s wishes lead us to the conclusion that we must allow this appeal (notwithstanding that the error on the part of the trial Judge is essentially one of weight). We reach this conclusion because it is very clear from paragraphs 133 to 142 of her Honour’s judgment (which we set out above), that once her Honour had determined that less weight should be accorded to A’s wishes, she regarded this case as finally balanced. We note that in their written submissions to her Honour, both Counsel for the wife and Counsel for the children’s representative recognised that the “crux” of the case was the weight to be given to the wishes of the children.
Thus, following our conclusion that her Honour erred in relation to the crucial matter of the weight to be attached to the children’s wishes, we consider that we have no alternative but to set aside her order in relation to the residence of the children and the consequential orders in relation to contact. We also consider that we have no alternative but to order a new trial. It would, in our opinion, be unsafe from the point of view of the children’s best interests for us to simply reverse her Honour’s decision.
In reaching the decision that there should be a re-hearing of the residence applications, we have also had regard to the fact that the parties had agreed that A’s ASD condition would have no bearing on the question of his residence.
In these circumstances, it is unnecessary and may well be undesirable for us to comment on the other matters which formed the subject of complaints by the husband about her Honour’s decision in relation to the residence of the children or the contact orders which she made. We do, however, think it appropriate to say that there would seem to be substance in the husband’s complaint that her Honour appears not to have dealt with his evidence concerning problems which he had experienced with the wife in relation to contact and that she appears to have misunderstood the parties’ proposals in relation to contact.

The wife’s cross appeal against the property order

As mentioned in the introduction to this judgment, her Honour having recorded in her judgment that the parties had agreed that their assets had a net value of $215,680 and that their contributions should overall be regarded as equal, then proceeded to make a ten per cent adjustment in favour of the husband on account of the matters contained in s 75(2) of the Act, and thus to make orders dividing the property 60-40% in the husband’s favour.
The ground of appeal contained in the wife’s notice of cross appeal against those orders is in the following terms:
1.The trial Judge erred in fact an in law in making a distribution of property 60% in favour of the Husband, the non residential parent in that it was not just and equitable.
PARTICULARS
(a)the parties had agreed that the contribution was equal;
(b)the parties had agreed to the valuation;
(c)the trial Judge erred in giving too much weight to the disparity in incomes between the Husband and Wife;
(d)the trial Judge erred in giving too much weight to the fact that the Husband made a lifestyle choice to not seek higher employment;
(e)the trial Judge erred in not making a finding that the Wife’s choice to not maximise her income potential was in the bests (sic) interests of the children as she was a residential parent.
(f)the trial Judge erred in finding that the chance that the children of the marriage may shift at some indeterminate time in the future as a relevant factor under section 75(2)(c) when assessing the distribution of property;
(g)the trial Judge erred in fact and in law in not making a distribution of property in favour of the Wife, the residential parent, in the split of 55% to the Wife and 45%, such distribution being just and equitable taking into account all relevant factors.
Although it might appear from the ground as drafted that the wife challenged her Honour’s understanding that the parties had agreed the value of their property and the equality of their contributions, it was clear from the submissions of Counsel for the wife that there was no such challenge. Rather, the wife’s challenge was limited to the ten per cent adjustment in favour of the husband on account of the s 75(2) matters. The particulars of the wife’s challenge to this adjustment are set out in sub-paragraphs (c), (d), (e) and (f) of her ground of appeal.

The trial Judge’s reasons for the 10% adjustment in favour of the husband

Her Honour provided a relatively lengthy and detailed discussion of the relevant s 75(2) matters. The conclusions which she reached in that discussion can be summarised as follows:
·     the wife was 35 at the time of the trial and “in good health”;
·     the husband was 41 and “in average health” (her Honour made reference to the nature of the husband’s health problems);
·     the wife’s present and potential income earning capacity “considerably exceeds” that of the husband and the husband’s “maximum potential income, for his level of training, is significantly below the wife’s potential” (her Honour had earlier at paragraph 29 of her judgment found that the wife earned about $61,777 per year, including salary and benefits, and at paragraph 42 that the husband earned about $38,800 per year);
·     that the wife’s case “that the husband could earn more if he elected to do shift work” failed to take into account “that the wife herself, on her own evidence, has made a lifestyle choice not to increase the amount of work she does”;
·      that “there may be a slight, but not great, loss of chance in respect of the husband’s employment” on account of the positions which the wife and her new husband had with one of the leading employers in the area where the parties live;
·     that “the financial circumstances relating to the cohabitation of each of the wife and the husband again shows the wife to be in a very favourable position”;
·     according to the residence orders proposed by her Honour (whereby the children would reside with the wife), “the wife will bear the psychological and emotional burden of the children which falls to a resident parent and also will bear the financial burden including the costs of the children’s child minder…”;
·     the husband pays child support at the assessed rate and has done so since separation;
·     the husband “has afforded the wife the opportunity to have the tertiary education and consequent more lucrative career which she now has, to his own financial detriment”; and
·     that in all the circumstances of this case “it is proper to take into account based on A’s age, strongly expressed wishes to reside with the father and [Dr J’s] expert opinion that those wishes are genuinely held that there is a very real prospect, as a matter of present circumstance, that at least [A] may at some stage between now and 18 years reside with the father.”
Her Honour’s ultimate conclusion that there should be a ten per cent adjustment in favour of the husband was then expressed in the following terms:
186.In all of the circumstances, I consider that an adjustment of 10% in the husband’s favour would be just and equitable. Principally, the significant disparity in the wife’s and the husband’s present and potential income earning capacities, and the more significant disparity arising from the financial circumstances of their respective cohabitation indicates an adjustment in the husband’s favour. There is authority for such a result even though the wife, at least according to the residence orders currently proposed, will have the psychological and emotional burden as the resident parent and the additional financial burden even taking into account the child support presently being paid by the husband. I would refer to V v G [1982] FLC 91-207 (FC); and Prpic v Prpic [1995] FLC 92-574. There are other relevant cases to which reference may be made, eg, F v F [1982] FLC 91-214 (FC), although that case concerned spousal maintenance not property settlement. The other factors which weigh in his favour are that the wife appears to have slightly better health than the husband. She is younger than the husband by seven years. Her greater income now was enabled by the husband’s own sacrifice of tertiary study.

Conclusion in relation to the cross appeal

Having regard to her Honour’s ultimate conclusion as contained in the paragraph just quoted, and also to her various findings which we have summarised from her earlier discussion of the s 75(2) matters, we do not see any substance in the complaints (in sub-paragraphs (d) and (e) of the ground of appeal) that her Honour gave “too much weight to the fact that the husband had made a lifestyle choice to not seek higher employment” and that her Honour erred in “not making a finding that the wife’s choice to not maximise her income potential was in the best interests of the children as she was the residential parent.” In paragraphs 163 and 164, her Honour said:
163.The wife’s case is that the husband could earn more if he elected to do shift work, asserting:
“The submission is that the wife should not be prejudiced because the husband is taking some lifestyle choices to decrease the amount of work he does.”
164.However, this submission fails to take into account that the wife herself, on her own evidence, has made a lifestyle choice not to increase the amount of work she does, where potentially she could be earning up to $80,000 base salary, plus incentives and benefits. …
Her Honour seems here to be adopting an approach whereby the fact that one party had chosen not to earn the maximum amount possible had to be balanced against the fact that the other party had made a similar choice. We do not think that it was incumbent upon her Honour to go further and examine why each party had made such a choice.
There is, however, considerably more substance, in our opinion, in the wife’s complaints concerning the weight which her Honour attached to the disparity in the parties’ incomes and to the possibility that the children’s residence might change.
Her Honour’s decision to make a ten per cent adjustment in favour of the husband on account of the disparity between his income and that of the wife and also, it must be remembered, on account of the disparity between the financial circumstances of his cohabitation and those of the wife, must be considered in the context that the wife, as a result of her Honour’s orders, was to have the two children of the marriage residing with her. Her Honour expressly recognised that this situation would impose on the wife psychological and emotional as well as financial burdens. In these circumstances, it might well have been expected that no adjustment would be made in favour of either party, and indeed we note that the husband’s submissions to her Honour would seem to have proceeded on this basis (see paragraph 30 of those submissions).
It would seem that her Honour’s decision to make a ten per cent adjustment in favour of the husband on account of the disparities in income and in the financial circumstances of his cohabitation in circumstances where the wife had the residence of the children, can only be explained by the fact that her Honour must have given significant weight to the possibility of a future change in the residence of the children.
Although in paragraph 186 (quoted above) of her judgment, where her Honour reached, and explained, her conclusion that there should be a ten per cent adjustment in favour of the husband, there is no mention of the possibility that the children’s residence would change to the husband, it seems reasonably clear that her Honour may in effect have discounted, so to speak, the impact on the wife of being the residence parent on account of the possibility of such a change.
In apparently having regard to the possibility of a change in the residence arrangements for the children, her Honour referred to the cases of Sandark v Sandark (1991) FLC 920260 and Simpson v Hamlin (1984) FLC 91-576, both of which were cases concerned with applications under s 79A of the Act to vary property settlement orders, and the unreported decision of Louis v Louis (PA5339 of 1994).
As presently advised, we have considerable doubts as to whether decisions concerning the operation of s 79A can be of relevance or assistance in the consideration of the s 75(2) matters for the purposes of an application for a property settlement order under s 79. We note, however, that this question was not the subject of argument before us.
The unreported decision of Louis was not a case where the trial Judge had made a decision as to where a child would live prior to determining the property settlement matter. Rather, the trial Judge in that case, only had to have regard to the evidence concerning the likely future living arrangements of the child in question. This is a significant difference between that case and the present case.
It is our view that, having decided that the children should reside with the wife, there was no justification for her Honour effectively to reduce the wife’s property settlement award on account of the possibility that the children may move to live with the husband at some time in the future. Further, we were informed by Counsel for the wife, that her Honour never raised with the parties the issue of whether a possible future change in the residence of the children should be a factor to be taken into account under s 75(2). This assertion was not challenged by Counsel for the husband.
For these reasons, we consider that we should intervene and set aside the property settlement order made by her Honour. It would have been our usual practice in a case such as this to re-exercise the jurisdiction ourselves in relation to the property settlement matter. However, given that the residence matter has to be the subject of a re-hearing, and given that the outcome of the re-hearing of the residence matter would be relevant to the outcome of the property matter, that latter matter will also have to be remitted for re-hearing.

Costs of the appeal and the cross appeal

It was agreed with Counsel at the conclusion of the hearing of the appeal and the cross appeal that the costs of the appeal and cross appeal should be the subject of written submissions after the delivery of our substantive judgment.
Accordingly, we will make directions for such submissions. We would, however, remind both parties and also the children’s representative that this is a case in which applications could be made for certificates under the Federal Proceedings (Costs) Act 1981.

Orders

That the appeal against orders 1, 4, 5, 6 and 7 of the orders with respect to children made by the Honourable Justice O’Reilly on 11 September 2003 be allowed and that those orders be set aside.
That the cross appeal against paragraphs (1), (2), (3), (4) and (5) of the order with respect to property settlement made by the Honourable Justice O’Reilly on 11 September 2003 be allowed and that those orders be set aside.
That the parties’ cross applications for parenting orders and for property settlement be remitted for an expedited re-hearing.

(4)(a)That each party including the children’s representative be at liberty to file and serve any written submissions in relation to the costs of the appeal and the costs of the cross appeal within 28 days of the date hereof.
(b)That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the preceding 50 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate

[2004] FamCA 784

25 August 2004

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