W & E

[2005] FamCA 1036

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA41 of 2005

(No. BRM 4542 of 2004)

BETWEEN:
W
Appellant Father

AND:
E
Respondent Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 16 September 2005

Date of Judgment: 7 October 2005

Appearances: The appellant father appeared in person
Ms Martinovic of Counsel, instructed by Shila Battenburg & Associates Lawyers appeared on behalf of the respondent mother

Mr Drysdale of Counsel, instructed by Legal Aid Queensland appeared on behalf of the Children’s Representative

W and E        NA41 of 2005 (BRM4542 of 2004)
Heard:  16 September 2005
Delivered:  7 October 2005
APPEAL FROM FEDERAL MAGISTRATES COURT – PARENTING ORDERS – RESIDENCE AND CONTACT – Exercise of discretion – Orders related to the parties two children aged 6 and 10 years – The Federal Magistrate ordered that the children reside with the mother – The father appealed against the weight place on the family report and a psychological report prepared at the request of the child representative – the father was represented at trial – Assertions were put to the relevant witnesses and tested.
THE APPLICATION OF S60B AND 68F – The father asserts that the trial Judge did not properly consider the factors of s68F and in particular did not adequately consider the mother’s proposals for residence – A need for consideration of proposals does not mean that a person without a permanent arrangement or plan for the accommodation of the children at trial will be necessarily seen as in a less favourable position than one who does have such an arrangement – The Federal Magistrate was well aware of the context, including the circumstances of parenting post-separation, in which he was called upon to make a decision about the residence of the children.
FACTUAL ERRORS – The father asserted that the trial Magistrate made factual errors relating to events involving the mother’s supervision of the children, an incident involving the father and one of the children using a whiteboard, the ‘category’ of proceedings and the father’s engagement of a private investigator – No evidence to show that the trial Magistrate erred, and that such an error affected the result.
“UNACCEPTABLE RISK” – The father argued that there was an “unacceptable risk” to the children based on an incident involving their cousins – On the view the learned Magistrate took of the significance of the incident, the issue of “unacceptable risk” did not arise.
SPECIFIC ISSUES – The father argued that the trial Magistrate did not provide clear final orders relating to the no contact order of 12 July 2004 – It is not necessary for the learned Magistrate to specifically refer to an interim order, made before a full exploration of the issue to which it related was possible, and that it would in any event lapse on the making of final orders.
R v Smith [2000] NSW CCA 388
CDJ & VAJ (1998) FLC 92-828
De Winter & De Winter (1979) FLC 90-605
Bellenden (formerly Satterthwaite v Satterthwaite) [1948] 1 All ER 343
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712
That the appeal be dismissed.

Following the breakdown in their relationship in October 2003, the parties fell into disagreement about the parenting arrangements for their children, S, born July 1995 and O, born July 1999. Proceedings in the Federal Magistrates Court were resolved by orders made by Federal Magistrate Baumann on 6 May 2005. The basic effect of these orders was that the children reside with the mother and have contact with the father each alternate weekend from Friday evening to Sunday evening, on alternate Wednesdays from the conclusion of school to 7.30pm during school terms, for half of school holidays and on special occasions.
The father appeals the order relating to residence and consequently the orders for contact, as well as (on the face of the appeal) orders for telephone contact, an order for changeover, and an order requiring the parents to advise each other of changes to their residential address and mobile telephone number. He seeks that the children reside with him.
I will discuss those grounds of appeal that were pursued after an outline of the background facts and the judgment of the trial Judge.
The father argued the appeal himself.

Background facts and the judgment of the trial Judge

Such facts as are contained in the following account have been taken from the reasons of the Federal Magistrate.
In the hearing before the Federal Magistrate, each party was represented by solicitor and counsel and the children were separately represented, counsel appearing for that representative.
When the relationship of the parties commenced, the mother was about 15 years of age and the father 29 years. He had been previously married and had three daughters, who at that time lived with their mother.
As earlier noted, the two children of the marriage were born in July 1995 and July 1999. The father’s eldest child, X, moved in to reside with the father’s new family in 2001. As seen, the parties separated in October 2003.
Following increasing disputation, the father commenced proceedings seeking parenting orders in May 2004. Interim orders were made that the children reside primarily with the father, with the mother having contact each week.
Fairly early in his reasons, after making observations about each of the mother and father as witnesses, the learned Magistrate said that the mother was:
“…a loving and caring parent who … was better able than the father to separate her needs and adult perceptions from those which serve the best interest of the children.”
Then, shortly after referring to expert witnesses, his Honour said:
“19. I now propose to deal with the competing proposals within the nature of the relevant s 68F(2) factors.”
His Honour noted that The counsellor, a social worker who prepared a family report, recorded that S expressed a wish for equal time with each parent. However, his Honour accepted the children’s representative’s submission that his Honour should have serious reservations about the validity of S’s wish. The learned Magistrate noted also that the father suggested that the children’s wish for shared residence should be treated with some caution. His Honour expressed himself satisfied that S had been so heavily involved in the dispute that he could not attach significant weight to her wishes. He said O was too young for any weight to be attached to her wishes.
His Honour observed that The counsellor’s opinion that O was primarily attached to her mother was supported by The counsellor’s observations and the work history of the parties before separation. However, he said that ultimately there was little between the proposals of the parties when having regard to the relationship of each with the children.
The trial Magistrate accepted the children’s representative’s submission that there was no evidence that the children would suffer any significant adverse impact associated with a change from the father’s care. However, his Honour thought a real issue was the prospect that the children would feel responsible for the inevitable sadness that one of their parents would suffer, following a residence order in favour of the other, because:
“…of the father’s currently almost obsessive relationship with the girls.…”
In considering parental capacity, Baumann FM dealt with some particular assertions by the father against the mother, but found himself satisfied overall that both parents had the capacity to meet the emotional, physical and other needs of the children.
On the other hand, as to parental attitude, his Honour said:
“38. It is this factor which [the counsellor] opines, and the child representative contends, separates the two competing proposals. They emanate from the assessment of the father’s need to control.…”
His Honour then noted with approval the evidence of the counsellor and certain other evidence, including the particulars of the orders sought by the father, and concluded that he agreed with the counsellor’s assessment. This he had earlier set out as follows:
“In my opinion, while both parties offer adequate accommodation and both are currently able to meet the physical and practical needs of the children, if the girls were to primarily reside with their mother they would be more likely to achieve a balanced relationship with both parents. In my opinion, [S] would be less likely to feel conflicted in her loyalties to each parent and more able to relax as a child with (sic) adult burdens. She and [O] would be able to maintain a strong positive relationship with their father while strengthening their bond with their mother.”
Shortly after expressing agreement with that opinion, his Honour said:
“47. It follows from my analysis to the relevant s 62F(2) (sic) factors that I have come to the conclusion that it is in the best interests of the children that they live with their mother and have regular contact with their father.”

Grounds of appeal

The Notice of Appeal contained 13 grounds.
In his summary of argument, the father said in respect of grounds 5, 6, 7, 8 and 11, that submissions were “to be detailed orally at hearing.” No submissions were then offered in support of these grounds, which in the circumstances I consider effectively abandoned.
In respect of grounds 9 and 13, there were no separate submissions but, in the written submissions, there was reference back to the submissions made in respect of earlier grounds. Accordingly, these later grounds will be considered with the earlier grounds referred to.

Ground 1(a) and Ground 13

“1. Applicant Father was not afforded Procedural fairness – (a) Undue weight placed on Family Report following prior instruction to applicant from FM Baumann that little weight would be placed upon it, applicant denied reasonable opportunity to dispute the report.
13. The family report writer appears to have been dishonest in her oral evidence.”

Except incidentally during the course of submissions in respect of other grounds, the father did not expand on the written submissions made in respect of these grounds.
In his written submissions, the father referred to a procedural hearing which took place on 11 October 2004, when the father appeared for himself, the mother being represented by solicitor. The appearance followed the release of the family report and the purpose of the hearing appears to have been to determine the future direction of the proceedings. The father says that upon his advising the Magistrate that he would dispute every word in the family report, the Federal Magistrate said:
“You can dispute it if you like, but I can tell you now I will not be placing much weight on it. I will be judging this case on you and the mother in the witness box.”
This assertion by the father is inaccurate. What was actually said (at the fourth page of the transcript) was:
“FEDERAL MAGISTRATE: …This is only part of the evidence of [the father]. The best evidence for me in any parenting issue the best evidence is the mother and father being in the witness box because I have to make a decision. It’s just part of the evidence Report writers don’t make decisions. If they did I wouldn’t be sitting here.
MR W: Yes.
FEDERAL MAGISTRATE: I make the decisions. That’s just part of the evidence I’m neither bound by it nor do I have to accept it. Obviously it has some persuasion because it’s on the face of it independent by someone who has no axe to grind in the matter and who is a specialist who is a professional. Every day of the week I see professionals in the witness box who are cross examined about their opinions. That’s the process. The hope of the Court is and often it’s met is that by using this process it enables us to narrow issues quite often and in many cases people accept recommendations and resolve the matter and it finishes. This is not one of them. Therefore
MR W: indistinct your Honour.
FEDERAL MAGISTRATE: there’s only one other option. Let’s set it down for hearing.”
In his written submissions, the father also suggests that somehow his position at trial, bearing on his challenge to the counsellor’s report, was circumscribed by the statements made by Baumann FM at the October directions hearing.
As earlier noted, the father was represented at trial. The counsellor was cross-examined. Assertions were put to her.
The father does not say that at any stage his counsel raised any prejudice to the father arising from anything earlier said by the learned Magistrate or made any suggestion that the learned Magistrate somehow was bound by any earlier statement about an approach toward the family report.
There is therefore no merit in ground 1(a) as framed.
In his written submissions, the father asserted:
“11. Alternatively, his honour has erred by placing undue weight on the family report for, but not limited to, the following reasons;
a.   Some of [the counsellor’s] opinions fell outside of her expertise,
b.   No basis was established for some opinions that did fall within her expertise,
c.   Her findings lacked objectivity,
d.   She failed to adequately address mattes as ordered on 12 July 2004, and
e.   The extent of her focus upon unsubstantiated allegations of harassment of the mother, coupled with the level and gravity of substantial matters that were totally ignored or omitted from the report, demonstrates a very clear bias.”
While I have some doubts that these submissions raise matters within the ground as drafted, this point was not raised by either of the other parties.
At the outset, I note that the submissions are directed at the counsellor’s evidence, not as would be expected on appeal, at the trial Magistrate’s dealing with that evidence.
Secondly, save for the matters referred to in paragraph “e.” above, the trial Magistrate expressly noted and considered each of the assertions about the counsellor’s evidence now put forward by the father. His Honour said:
“15. It is the submission of the father that the report of [the counsellor] should be rejected because:
(a)some opinions proffered fell outside her expertise;
(b)no basis was established by the report writer for opinions which might otherwise fall within her expertise;
(c)[The counsellor’s] findings lack objectivity; and
(d)[The counsellor] failed to address as part of her report matters identified in paragraph (a) to (i) of the order appointing her.
16. Although under cross-examination [the counsellor’s] expertise was challenged, I am satisfied on the totality of her evidence (including oral evidence) that she has demonstrated the highest levels of impartiality and objectivity made observations and recorded them accurately and has given opinions generally within the area of her expertise. I am as a result comfortable in giving her recommendation some weight; that is remembering the distinct advantage that she enjoys of having seen the children both with and absent their parents.”
Notwithstanding that the father’s submissions are not directly addressed to the way in which the trial Magistrate dealt with the counsellor’s evidence, insofar as they indirectly challenge the trial Magistrate’s conclusions, I turn to consider them.
The submissions of the father in paragraphs 13 to 24 can be summarised as follows:
(i) that the counsellor went beyond her expertise in suggesting that the father might struggle to deal with an order providing that the children reside with the mother and “…become depressed to the point of self harm or suicide.”
The transcript discloses that it was his Honour himself who suggested that the counsellor’s opinion might be beyond the expertise of the witness. Subsequent exchanges make it clear that the counsellor in her report was merely highlighting a concern which needed further investigation. This was carried out by a psychologist, whose report was received in evidence. Indeed, in her oral evidence The counsellor said:
“…but since I’ve seen [the psychologist’s] report, I am reassured that he [the father] appears to perhaps not be coping as badly as I thought he might.”
(ii) The counsellor made no mention of a “whiteboard incident” (discussed further later) in her report, though she did in oral evidence. This, in the father’s submission “implies that she did not view it as significant”. On that premise, the father deduces “Either his Honour’s view as to its significance is wrong or alternatively his Honour’s view as to the quality of the report is wrong”.
All that need be said in respect of this argument is that the inferences for which the father contends are not necessary inferences from the circumstances recounted.
(iii)    There are then a series of criticisms of the counsellor that the father proffers.
·   The counsellor’s limited observation hindering her capacity to form views of the attachment of O to the mother upon
·   the formation of opinions by the counsellor that at the time the interviews for the report were conducted, the father had a desire to reconcile
·   that the counsellor reported things stated by the maternal grandparents but the grandparents were not called in evidence
·   that the counsellor referred to a letter supporting the mother’s case but failed to acknowledge the existence of a letter provided by the father which supported his case
·   that the counsellor suggested both parents offered adequate accommodation and could meet the physical needs of the children despite the fact that the mother was temporarily residing with her parents
·   that the counsellor’s opinion that the father had a diminished parental capacity was inconsistent with the bond that the children had with both parents and other factors in the children’s lives
·   and that the counsellor operated under some limitations of time and other constraints in conducting interviews and preparing her report.
In short, these are all arguments which the father had the opportunity to, through his representatives, pursue in the course of hearing. They all represent matters which, if established, might have been considered relevant and from which inferences might have been drawn by the Federal Magistrate, but none represent or lead to findings, conclusions or inferences, that must have been made. In other words, the findings made by the learned Magistrate about the counsellor’s evidence were open to him.
In my view, there is no merit in these grounds of appeal.

Ground 1(b)

“(b) Undue weight placed upon psychological report, applicant denied reasonable opportunity to dispute the report, applicants independent evidence not allowed “undue waste of time”.

The psychological report referred to in this ground is that earlier noted, of the psychologist. At the request of the children’s representative, the psychologist had assessed both father and mother.
As to the asserted denial of a reasonable opportunity to dispute that report, in his written submissions, the father made reference to the unavailability of the psychologist’s report until 30 January 2005 (the trial was held 16 February 2005) and asserted that there was no reasonably opportunity to comprehensively dispute the report. Since in fact, the father obtained a report by another psychologist, it is difficult to see a foundation for this assertion. Moreover, the father did not point to anything raised by his counsel in relation to restriction on disputing the report.
As to the exclusion of “independent evidence”, the written submissions disclose that this refers to a report from another doctor and affidavits from A.D. and N.B. In oral submissions the father also wished to include in this category material from the childcare centre, but was unable to point to where this material was proffered at trial.
The father submits that the evidence rejected constituted:
“…strong testament to my character and parenting abilities and particularly to the resultant demeanour of the children as well as being valid and strong evidence of the mother’s difficulties and limitations with respect to her parenting, and also expert evidence that serves to dispute the psychological report and the family report… It is unfair and incorrect that his honour excluded this evidence (as an undue waste of time), particularly as his reasons for judgment rely heavily upon his assessment of my character and the opinions of the family report and psychological report.”

Further, the father submitted that the evidence was the “only independent, supporting evidence, of my honesty, my character, and my parenting abilities and the children’s happiness with the current situation.” The other doctor saw only the father. In the sense that he was engaged by the father, he could not be regarded as independent, which is not to say that his views may not have been objective. However, his position as a witness for the father was to be contrasted with the position of the psychologist engaged by the children’s representative. Counsel for the children’s representative supported the exclusion of the other doctor’s report. Section 135 of the Evidence Act 1995 (Cth) undoubtedly provided a power to the Federal Magistrate to refuse to receive the evidence in question on the basis that its probative value was substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
Given that the learned Magistrate had before him a family report in respect of which the parents and the children had been seen and the assessment of each party by the psychologist on behalf of the children’s representative, it was open to him to find that the probative value of the report of the other doctor proffered by the father was outweighed by the danger that receipt of the report might cause or result in an undue waste of time. I note the discussion of a trial Judge’s use of section 135 by the New South Wales Court of Criminal Appeal in R v Smith [2000] NSW CCA 388 and consider that the approach taken by the learned Federal Magistrate was consistent with the approach approved of in that discussion.
As to the affidavits of N.B. and A.D. the transcript discloses that counsel for the father abandoned requests that they be admitted into evidence.
I consider that the decision of the learned Magistrate to exclude evidence shows no appealable error.
Again, as he did in relation to the family report, the father made assertions in the alternative as follows:
“27. Alternatively, his honour has erred by placing undue weight on [the psychologist’s] report for, but not limited to, the following reasons;”
Again, I have some doubts about whether this alternative submission fits within the ground, though in this instance the phraseology of the ground permits greater room for argument, of which however, there was none.
In his written submissions, the father mounted an “attack” on the psychologist’s report. Again, the submissions are not directed to the way in which the learned Magistrate dealt with the psychologist’s report.
The father suggested that differences in the way the psychologist quoted each party and differences in the conclusions associated with similar responses created bias, that certain passages were a misrepresentation of the facts, others were misquotes of information the father had provided and the report was littered with errors. In this regard, the father referred to some matters which seem to be of a mere typographical or clerical nature. However, he also asserted that the psychologist had formed opinions based heavily upon what the parties had told him and also had made incorrect assumptions.
As to this report, the learned Magistrate said:
“17. Some similar criticisms are directed to [the psychologist]. I disagree that ‘little or no weight’ can be given to the report as urged upon me by the submissions of the father. Whilst psychometric testing may form part of any assessment process, individual observations made during the interview process are a critical factor in reaching an expert’s conclusion.
18. [The psychologist] was strongly cross-examined by counsel for the father about his adopted process and conclusions. I am satisfied these opinions were formed objectively and are well within the expertise of this witness.”
For reasons that match those given in relation to the weight that the learned Magistrate gave to the counsellor’s family report, I am not satisfied that the father has shown that the way in which the learned Magistrate dealt with the evidence of the psychologist was not properly open to him.

Ground 2

“2. Objects and principles of sect 60B and sect 68F Family Law Act 1975 have not been correctly applied”

In so far as this ground refers to section 60B, it represents something of an “umbrella” or “abstract” ground which, to succeed, relies upon success in other grounds which have the necessary particularity. Effectively, all that the father says is that the result was wrong, thereby not meeting the objects and principles of section 60B.
As to section 68F(2) however, the father asserts that the trial Judge did not take the approach of examining and weighing each of the factors set out in that subsection but rather adopted an approach of looking for a reason to award residence of the children to their mother. Save in one respect, all that need be said in relation to this somewhat offensive submission, is that the recount of the structure of the trial Judge’s judgment earlier given indicates that he did address factors relevant under section 68F(2). For the most part the assertion made by the father seems based on a subjective criticism of the result rather than any examination of the reasons.
However, in his written submissions the father was critical of the report of The counsellor in so far as it expressed the conclusion:
“…both parents offer adequate accommodation and both are currently able to meet the physical and practical needs of the children.”
Of this the father wrote:
“Given the mother’s proposal of ‘temporarily residing with her parents until she found alternate accommodation’, the fact that despite the motivation of a residence application the mother has still not found alternate accommodation and has still not gained any employment in the 11 months since separation, the fact that the mother had never parented the children alone, and the lack of any indication as to the attitude of the Mother’s parents to her and the children residing in their home, [the counsellor] has again drawn a conclusion far beyond the available data.”
In oral submissions the father extended this criticism of the counsellor’s report to the Federal Magistrate’s reasons, asserting that pursuant to section 68F(2) his Honour had to consider the mother’s proposals for housing and work and did not. Moreover, had he considered the mother’s proposals, he would have found them to be wanting.
The father referred to the mother’s material in which she said:
“That the children reside with myself in my parents’ four bedroom home until I obtain alternative accommodation for myself and the children.”
He also pointed to cross-examination of the mother by his counsel at the hearing, on the question of the mother’s proposals for future housing.
The mother indicated that she was awaiting the outcome of the hearing before making arrangements for alternative accommodation. She also indicated that there was a possibility she might reside with her partner at some time in the future. It was suggested to the mother that she was asking the court to make orders on an unknown but this the mother denied, saying that her plan was to get a house for herself and the children in “the area” and that the children would remain at the same school. The mother also indicated that she could see herself obtaining work in the future, as she had done in the past, cleaning houses, which was work within school hours.
As to the way in which his Honour dealt with this evidence, there is no specific mention, within the factors referred to in section 68F(2) of the Act, of proposals for housing and supervision. However, such matters are generally considered as part of the capacity of each parent to provide for the needs of the children. But a need for consideration of proposals does not mean that a person without a permanent arrangement or plan for the accommodation of the children at trial will be necessarily seen as in a less favourable position than one who does have such an arrangement. Where a court assesses a parent as being aware of the needs of children in relation to accommodation and supervision and as having a capacity to make appropriate arrangements, the court may well be satisfied that that parent will provide for the physical needs of the children. In the instant case, at paragraph 39 of his reasons, the learned Magistrate noted the view of the counsellor that in her opinion both parents “…offer adequate accommodation and both are currently able to meet the physical and practical needs of the children…” As well, in paragraph 37 as earlier seen, his Honour had himself assessed “…both parents have the capacity to meet the emotional, physical and other needs of the children if they are in their care.”
While the Federal Magistrate could have said more about the issue of the propriety of the plans of the mother, I consider it would be pernickety to regard the way in which the learned Magistrate dealt with this issue as representing an insufficient dealing with it.
Under this ground the father also referred to his assertion that the mother had never parented the children alone prior to the trial. During the course of his reasons, the learned Magistrate recognised:
·that the mother “simply wants her children back…” (paragraph 13),
·that both children have a close relationship with both parents and the counsellor’s opinion of O as primarily attached to her mother is supported by the counsellor’s observations and the work history of the parties before separation (paragraph 24),
·that there was “…no evidence the children ‘would suffer any significant adverse impact associated with a change into the mother’s care’”,
·that he was “of the view that the parents would assist the children to adjust if a change occurred – or did not occur.” (paragraph 28)
·that as seen “both parents have the capacity to meet the emotional, physical and other needs of the children if they are in their care” (paragraph 37).
It is apparent in my view that the learned Magistrate was well aware of the context, including the circumstances of parenting post-separation, in which he was called upon to make a decision about the residence of the children.
As Kiley J said in CDJ v VAJ (1998) FLC 92-828 at 85,468:
“…Every appellate judge knows that the reasons given for a decision can never express the entire range of maters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision. This is true of the decision of the primary judge, expressing the combination of “main considerations” that led to his ultimate conclusion that the children should reside with one parent rather than another.”
There is no merit in this ground.

Ground 3 and ground 9

“3. Factual errors, going to substantial influence in FM Baumann’s decision.
9. FM Baumann has erred in that the “reasons for decision” contain factual errors, and contradictions.”

All that the father said in his written submissions in respect of ground 9 was:
“79. Factual errors as discussed at item 3 above, and in addition, contradictions to be included with discussion about reasons for decision.”
There were no further relevant submissions made at hearing in relation to ground 9 and in those circumstances I see no need to add anything beyond the following discussion of the submissions in respect of ground 3.
In respect of ground 3, in his written submissions, furthered in oral submissions, the father suggested that there were several factual errors made by the learned Magistrate. Most of these allegations related to the way in which the learned Magistrate dealt with two matters set out in paragraph 30 of his reasons, which, in relevant part is as follows:
“30. The father levels criticism of the mother's extent of awareness, supervision, and general capacity to be the primary parent. Simply stated, the father's allegations are not made out. The father specifically alleged the children "were at risk as a direct result of the mother's failure to adequately supervise" them on the following occasions:
(a) with their cousins at the maternal grandmother's home in January 2004;
(b) at a suburban shopping centre when [S] was with an 11 year old friend and apparently unattended for a period;”
The thrust of the father’s submissions was that the events referred to in sub-paragraphs (a) and (b) in the passage quoted were “proved” and therefore it was not open to the learned Magistrate to find that “the father’s allegations” were not made out.
As discussed with the father during his submissions, the difficulty with them was that they were confused about to which allegations the learned Magistrate was ultimately turning his mind. It is clear from paragraphs 31 to 37 of the learned Magistrate’s reasons that he accepted that the incidents referred to in the two sub-paragraphs nominated had occurred. Indeed, in paragraph 35, he rejected the mother’s view about the appropriateness of leaving the child S with an older friend in a toyshop in a shopping centre.
The allegations of the father that the learned Magistrate did not accept were those referred to in the opening two sentences of paragraph 30, namely the father’s contentions about what the events (which were established) implied about the mother’s awareness, supervision and capacity as a parent.
In a similar vein, the father was concerned about a finding in paragraph 22 about the father “using a whiteboard”. In context, that finding was:
“22. Although she is a mature 9 year old child, I am satisfied [S] has been so heavily involved in this dispute that I could not attach significant weight to her wishes. The evidence of the counsellor about the father using a whiteboard to identify the "pros and cons" of the parents was a telling disclosure, in my view.”
The evidence of the counsellor (referred to by the learned Magistrate) about the father using a whiteboard, included the following passage:
“…Yes, he did an exercise with her on the whiteboard, getting her to draw up the pros and cons of living with Mum and living with Dad and giving them a score and ---
…
And she wrote next to Mum’s name, “good” and next to Dad’s name, “good, but better”. Under where Dad had written the pros and cons and said that she gets more things from Dad. This is what ---“
The father seemed to have a concern that the counsellor’s evidence did not reflect exactly what had happened about the use of the whiteboard and either the finding of the learned Magistrate adopted that misapprehension or involved a further misapprehension as to exactly who wrote what or initiated the use of the whiteboard.
Again, if the counsellor was mistaken in her evidence, the opportunity presented at trial for a challenge to her in that regard. If that challenge did not succeed or was not made, there is no error resulting simply from the acceptance by the learned Magistrate of the counsellor’s evidence.
To the extent that the father submitted there was an error in what the learned trial Judge took from the counsellor’s evidence, I do not accept that submission. The term used by the learned Magistrate was simply, as seen “The evidence of [the counsellor] about the father using a whiteboard to identify…”. This reference does not carry specific implications about any particular sequence of events in relation to the use of a whiteboard which are inconsistent with the evidence of the counsellor.
The next alleged mistake of fact was the finding of the learned Magistrate about the “category” of the proceedings commenced by the father in May 2004. These proceedings were described by the learned Magistrate in paragraph 5 as “…proceedings for residency”. The father contends that they were proceedings for specific issues orders and that he did not seek residency until December 2004. In his submissions, the father said that the attitude behind the orders sought in his initiating application did not exclude the option of the children residing with the mother.
Two points which immediately limit the significance of any error in this finding of the learned Magistrate are firstly, that whatever the father sought when he instituted proceedings, the mother promptly sought by way of response an order for the interim residence of the children. This the father resisted and about six weeks after the commencement of proceedings, an interim order for residence of the children with the father was made. Therefore the effect of any misunderstanding on the part of the trial Magistrate likely related to an insignificant period.
Secondly, the description of the learned Magistrate appears in the introductory section of the judgment and nothing whatever would appear to turn on whether the proceedings commenced by the father on 27 May 2004 were correctly described as proceedings for residency or not.
In any event, it is contended on behalf of the children’s representative that, given that the children were with the father at the time he instituted proceedings, the nature of the orders sought imply that he was seeking that the children continue to reside with him.
Given that among the orders the father sought were orders that:
“10. All future access arrangements to be confirmed in writing.
11. [The mother] to cease her presence at the school gate and/or its boundaries before and after school.
12. [The mother] to cease ‘uninvited’ visits to the residence of the children and [the father].”
It seems to me there is some strength in the contention of counsel for the children’s representative in this regard.
Overall, I see no merit in this particular.
The last alleged error of fact was contained in the first sentence of paragraph 34 of the learned Magistrate’s reasons and related to the terms upon which the father engaged a private investigator. The impact of the finding is best understood in the context of paragraph 33:
“33. Indicative of the father's attitude is his readiness to make the three complaints to the Department of Families – at times to its emergency service number. I have formed the view that this was more indicative of the father trying to get some evidence against the mother likely to assist him in these proceedings than reflective of a serious concern the children were at risk (save for the January incident referred to above).
34. This focus is consistent with the father's engagement of a private investigator to follow the mother shortly after final separation. I do not accept that the mother engaged in adult sexual activities in the presence of children. The father's relationship history with the mother sets a basis for the mother's concerns about the father knowing too much about her new adult relationship – something the mother agreed that in the normal course the father should know about.”
It is the father’s contention that his evidence about the purpose of the engagement of the private investigator, supported by a letter from the private investigator (which however may not have found its way into evidence before the learned Magistrate) was that the investigation was to ascertain the address of a man with whom the mother was in a relationship. The father’s evidence (at page 61 of the transcript) was as follows:
“What arrangements did you make in relation to a private investigator or inquiry agent?--- I had discussions with an agent and told them that I was concerned that she might abscond there with the kids sort of thing so my explicit instructions to them were to find or to attempt to get an address of the male person that she’s going down to see.
They could have only done that by following her from the airport could they not?--- No, by following him from the airport.
Wasn’t the mother going down to Melbourne?--- The surveillance started at 5.40pm on the Sunday at the airport when she was leaving to come back to Brisbane. I have the report here too.
Did they provide a report to you as a result of their surveillance?--- Yes, I did.
Where is that report?--- My lawyers have it.
I call for that? --- I hope.
Let me get this clear. Did the mother tell you or inform you prior to her going to Melbourne that she was going down to Melbourne to see her boyfriend?--- Specifically she said I’m going to see if I can have a relationship with him.
At the time, and that to you in your mind set alight the idea that she might be absconding with the children did it?--- I became more concerned on the Friday over a phone conversation I had with her when she was in Melbourne.
She’d left to go down the Melbourne on the Friday had she?--- I believe she went Friday some time.
Friday 14 November 2003?--- I believe it was sometime Friday, yes.
When did you first commission the inquiry agents to follow the mother?--- On the Saturday morning about lunch time I had a discussion with them in their office and gave them my written instruction to try and find out the address---
You gave them instructions?---- Yes.
Have you got a copy of those?--- No, I requested them from the agents but I don’t have them.
So, on Saturday you ask inquiry agents to pick up the mother at the airport and then follow the person that had dropped her at the airport?--- I didn’t ask them to follow. I asked them to try and get an address but it’s pretty obvious that they’d do that by following. How they do their job is their business.”

I was not taken to any other evidence said to be relevant to the father’s purpose in engaging the private investigator.
There is some force in the father’s argument, namely that, on his evidence, the purpose for which he engaged the private investigator was not to follow the mother. Moreover, because the learned Magistrate interpreted the father’s evidence as indicating that purpose, his Honour considered that the father’s engagement of the private investigator supported the view that the Magistrate had formed of the father, namely that he was focussing on getting evidence against the mother likely to assist in the proceedings, rather than holding concern about the children.
However, viewed from another perspective, and as put on behalf of the children’s representative, though the purpose of the engagement of the private investigator might have been to ascertain the address of the man with whom the mother was in a relationship, if this purpose was to be effected by initially following the mother, then the finding of the learned Magistrate is not strictly incorrect. Put another way, the reference in the reasons is merely to the engagement and one consequence of it, rather than to its purpose. While I do not say that this proposition is untenable; and may ponit to ambiguity in the finding, the contention is not without weakness.
A more significant argument in my view is that the pertinent finding appears under the heading “parental capacity” as to which the learned Magistrate ultimately concluded:
“37. Overall, however, I am satisfied both parents have the capacity to meet the emotional, physical, and other needs of the children if they are in their care.”
It does not necessarily follow from this conclusion that the “erroneous” finding had no effect on the result. It seems arguable that, had the learned Magistrate not formed an unfavourable view about the father’s “focus”, his Honour might have found that the father’s parental capacity exceeded that of the mother. In this regard however, it is to be noted that in paragraph 33 earlier quoted, the learned Magistrate had already referred to material which, on the face of his reasons, had led him to form a view about the father’s focus, which view he then found merely to be consistent with the father’s engagement of the private investigator “to follow the mother”.
Taking all of these aspects into account, though not without hesitation, I am ultimately of the view that, insofar as the learned Magistrate has erred in relation to the purpose for which the father engaged the private investigator, it was an error which did not affect the result.
As Gibbs J said in De winter and De winter (1979) FLC 90-605 at 78,092:
“It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.…
The question is whether the invalid reason has influenced the ultimate conclusion or whether the error was immaterial;…”
In the end I consider that this ground fails.

Ground 4

“4. Test and principles relating to “unacceptable risk” have not been applied”

In his written submissions, the father’s argument is that the learned Federal Magistrate did not address the risk of further abuse of the children by their cousins in terms of whether or not “unacceptable risk” existed.
The father did not add to his written submissions during the hearing. In particular, he does not demonstrate what was made of the question of any future risk at the trial, either by way of evidence or submissions.
The father’s submissions are impliedly premised on his view of the significance of the behaviour of the cousins. Of this view, the learned Magistrate said at paragraphs 31 and 32:
“31. I heard the mother's responses. It is clear that the incident at the grandmother's house (when the mother was actually away) and the cousins were "playing" was taken seriously by the mother. She accompanied the father to police interviews of S.
32. Whilst I accept the children were possibly exposed to sexualised behaviour involving the two older cousins (not totally dissimilar to natural curiosity or child exploration), it would be overly harsh to level criticism at the mother who, in my view, like the father, acted appropriately. I do accept the mother has been more relaxed about the event than the father.”
In the absence of anything further, I am not satisfied that, on the view the learned Magistrate took of the significance of the incident, the issue of “unacceptable risk” arose.

Ground 10

“10. FM Baumann has erred by not providing clarity in “final orders” or “reasons for decision”, relating to “specific issues”, namely the no contact order of 12 July 2004.”

I infer that this ground relates to the circumstance that in the final orders made, an interim order was not continued, that interim order being:
“10. That whilst the children are in the mother’s care, she shall ensure that the children do not come into contact with their cousins.”
It is clear from the orders made 12 July 2004 for the filing of further material, for the preparation of a family report and for the adjournment of the applications for further mention in October 2004, that the orders made that day were of an interim nature only. As a general proposition, interim orders cease to have effect upon the making of final orders. It is not necessary therefore for an order to be made specifically suspending the interim order.
Moreover, in circumstances where the question of the actions of the cousins towards the children of the parties was thoroughly explored in the final hearing, and conclusions reached as indicated in discussion of ground 4, it is in my view not necessary for the learned Magistrate to specifically refer to an interim order, made before full exploration of the issue to which it related was possible, and that would in any event lapse on the making of final orders.

Ground 12

“12. FM Baumann’s decision fails to recognise the substantial progress made between the parties relative to, post separation management, extended and more equitable contact, strong relationships between the children and both parents, and easing of tensions between the parties, in favour of orders that his honour concedes in his “reasons for decision” carry a risk of deterioration of the abovementioned progress.”

This ground is basically an assertion that the learned Magistrate gave undue weight to those factors favouring a move of the children to, on a final basis, primary residence with the mother as against those factors favouring continuation of the circumstances established by interim order, namely primary residence with the father,
As was said by Asquith LJ in Bellenden (formerly Satterthwaite v Satterthwaite) [1948] 1 All ER 343 at 345, as to the rationale of an appellate court’s approach:
“… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
and in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178, by Brennan J:
“The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”
The father has not shown that the learned Magistrate erred in the exercise of his discretion.

Conclusion

As no merit has ultimately been found in any grounds of appeal, the appeal must be dismissed.

ORDER

That the appeal filed 3 June 2005 be dismissed.

[2005] FamCA 1036

7 October 2005

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