W & M and Anor - [2006] FamCA 512

[2006] FamCA 512

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT PERTH

Appeal No. WA 11 of 2005

File No. PTW 7907 of 2002

IN THE MATTER OF:

Appellant/Father

-and –

First Respondent/Child Representative

-and-

Second Respondent/Mother

REASONS FOR JUDGMENT

BEFORE: Bryant CJ, Warnick & May JJ
HEARD:27 March 2006

JUDGMENT: 28 March 2006

APPEARANCES:
The Appellant Father appeared on his own behalf

Mr Walker of Counsel (instructed by Mr M c/- Legal Aid WA, 55 St Georges Terrace, Perth WA 6000) appeared on behalf of the First Respondent
Mr Stokes of Counsel (instructed by Ms Marie Stokes, 7/16 St Georges Terrace, Perth WA 6000) appeared on behalf of the Second Respondent

Name of Appeal W and M

Appeal Number WA11 of 2005

Date of Appeal Hearing 27 March 2006

Date of Judgment 28 March 2006

Bench Bryant CJ, Warnick & May JJ

Catchwords:APPEAL – Application to remove Child’s Representative - No specific allegation as to the conduct of the Child’s Representative

APPEAL – Application for provision of Legal Aid
COSTS – Where appeal misconceived

Appeal dismissed.

Appellant ordered to meet costs of the First and Second Respondents fixed in the sum of $1,500 each.

BRYANT CJ:

The appellant, who is the father of J, aged five and a half, is appealing against orders made by Holden J on the 12 July 2005. The orders appealed related to the father's two applications and an application by the child representative.
The applications before Holden J came about following a hearing before Thackray J about which parent J should live with and what contact he should have with the other parent. Because the decision of Thackray J is the basis for the subsequent application to Holden J, it is necessary to set out what he determined in the orders he made. Thackray J was dealing with competing residence applications and property applications.
The father represented himself for most of the proceedings before Thackray J, and Holden J, and has represented himself before us. He failed to comply with orders relating to the preparation of his case for trial before Thackray J and, as a consequence, the property part was dealt with on an undefended basis. Although he also failed to file documents required to support his application concerning J, he was allowed to take part in the proceedings, and in his reasons for judgment Thackray J records that the appellant was given:
" - - great latitude by being permitted to rely on a number of affidavits filed and interim applications, and he was also allowed to give oral evidence."
Apparently the father was cross-examined for in excess of half a day on the first day of the trial, and was still under cross-examination at the commencement of the second day. However, on that morning he refused to return to the witness-box, reading what Thackray J described as "a bizarrely worded statement". Although warned of the consequences to his case, he would not take any further part in the proceedings.
As there was no challenge to the mother's evidence and that of her witnesses, Thackray J admitted into evidence all the affidavits of the mother and the child representative and reserved his decision.
His decision was delivered on 16 November 2004. He identified various issues for determination, including whether there was any viable alternative to J continuing to live with his mother, whether the parties should retain long-term parental responsibility, whether contact between J and his father would promote J's best interests, whether the contact should be supervised and by whom, whether therapeutic interventions would be appropriate, whether it was appropriate for certain injunctions to be granted, and whether it was appropriate for final orders to be made.
After setting out the background, which was lengthy and complex, Thackray J considered the issue of credibility. He noted that as the father refused to take part in the proceedings after the first day, the mother and her witnesses were not cross-examined and he could not make any assessment of their credibility. However, as there was no contradictory evidence, and the evidence was not inherently improbable and often corroborated, his Honour accepted their evidence as he was entitled to do.
Thackray J made similar findings about the evidence of the child representative. Only one of the child representative's witnesses was cross-examined after being interposed on the first date. The witness was a child psychologist, who Thackray J found to be an impressive witness. She had recommended that the father undergo a full psychiatric assessment urgently.
Thackray J had limited opportunity to see the father under cross-examination. Accepting the truncation of his cross-examination, he found the father's personality and paranoia was such that on a variety of matters his evidence was unreliable and he was not, in any event, supported by any other witnesses.
Thackray J considered whether there was any viable alternative to J continuing to live with his mother and found there was not. In doing so, he appears to have fully canvassed the matters in section 68F(2) of the Family Law Act with appropriate reference to the evidence. He made particular reference to evidence that led him to have concerns about certain of the father's behaviours.
In summary, his Honour concluded that J should continue to live with his mother because she had always been J's primary caregiver, she was J's primary attachment figure, he had a close relationship with his half-siblings who lived with his mother, she was able to make adequate arrangements for his physical and emotional well-being and that the father was unable to cater for J's emotional needs and would continue to be unable until he addressed his own emotional problems.
Having determined that joint parental responsibility was not appropriate, Thackray J considered what contact between J and his father would promote J's best interests. Thackray J clearly formed the view that it would be desirable for J to have a good relationship with his father, and said at paragraph 71 of his reasons for judgment:
"I find it would be desirable for J to have a good relationship with [his father]. Clearly such a relationship can only be promoted by there being some form of regular contact. Notwithstanding my concerns about Eric's behaviour, I believe it is in J's best interests that [his father] be given one more chance to put a workable and satisfactory contact arrangement in place.”
Nevertheless, his Honour was concerned about the father's past behaviours and his present mental state. He noted that the father had said he would not accept supervised contact. Nevertheless, he considered it to be in J's best interests for the contact to be supervised "for the time being". He considered that contact should be supervised by Relationships Australia's contact service at [W] or Anglicare's contact service at [G]. Thackray J then considered whether any therapeutic interventions would be appropriate.
With particular reliance upon the evidence of Ms N, the psychologist who had conducted a psychological assessment of the mother and father, Thackray J found that it was desirable for the father to continue to have psychiatric treatment to deal with what he described as what may be a psychiatric illness or, at very least, a serious personality problem.
Importantly, in my view, Thackray J then considered whether it was appropriate to make final orders for contact. He noted that it was impossible to predict how the contact would progress and that if the father commenced having contact he would be prepared to allow the proceedings to be relisted for a consideration of unsupervised contact. However, he was not persuaded to entertain unsupervised contact until the father had undergone an independent psychiatric assessment. In short, Thackray J ordered, inter alia, supervised contact for three hours each alternate week, ordered the father to attend a psychiatrist nominated by the child representative for assessment, and indicated that provided the father had exercised the supervised contact for 6 months and undergone the psychiatric assessment he could have liberty to apply for unsupervised contact.
The father apparently did not appeal Thackray J's decision, but then filed two applications in June 2005, which came on for hearing before Holden J. The first sought to vary some of Thackray J's orders, effectively to provide that the psychiatrist to carry out the assessment be a person nominated by the father.
The child representative filed an application on 4 July 2005 seeking various injunctions to prevent the father from contacting employees of Relationships Australia outside work hours and other orders of that kind. The father consented to the injunctions. The child representative also sought an order that the father attend upon a particular psychiatrist, Dr S, for an assessment.
The father then filed a second application seeking that the child representative representing J be discharged, that there be a separate hearing conducted by Holden J to determine whether or not it was necessary for the father to undergo the psychiatric assessment as ordered by Thackray J, that the Court should show cause for the orders made, particularly for the psychiatric assessment, and that the Court order that the Legal Aid Commission of Western Australia provide representation for the father.
In the hearing before Holden J in respect of these applications, his Honour noted the father's concessions regarding the injunctions and that the child representative did not press for the making of orders that the father attend Dr S. He then dealt with the matters that remained in dispute.
His Honour first considered the father's application for the discharge of Mr M as the child representative. His Honour noted that there were no specific complaints against Mr M, but rather a general submission that his actions and recommendations resulted in orders not in the best interests of the child. His Honour also noted that the child representative's obligation was to promote the best interests of the child and, in particular, noted that the hearing before Thackray J did not result in a decision based on the recommendation of the child representative but on all of the evidence before the trial judge.
His Honour rejected the father's submission that the recommendations of the child representative had a great deal of influence in the case before Thackray J, and pointed to the fact that there was a "wealth of other evidence before his Honour, all of which was untested because of Mr W declining to take part in the proceedings."
His Honour opined that the child representative's recommendations were not the basis for Thackray J's orders, and that there were no specific examples of how the child representative might be biased towards one or the other party. He further noted that after such a lengthy matter, which involved seven volumes of Court file, to replace the child representative would be an unwarranted expense to the Legal Aid Commission and hence the public purse.
On the second issue remaining, namely, that he conduct a separate hearing to determine whether the father should undergo a psychiatric assessment, Holden J concluded he would be unable to conduct such an assessment without the benefit of an assessment himself.
On the orders sought by the father that the Court show cause for the assessment, his Honour pointed to the fact that the judgment of Thackray J gave ample reasons for his decision to order an assessment. He referred to the evidence before Thackray J of the psychologist, Ms N, and his Honour's observations of the father.
On these two issues his Honour, in my view, was demonstrably correct. I would add that to review Thackray J's decision to order the father to undergo a psychiatric assessment as a pre-condition to an application for unsupervised contact was not open to Holden J as he could not sit as an Appeal Court unless there was fresh evidence which made it an entirely new application. It is demonstrably clear there was not.
The final issue that his Honour dealt with was the father's application for the Court to order the Legal Aid Commission of Western Australia to provide him with counsel. His Honour noted that it was not appropriate for him to do so and that the Legal Aid Commission had already funded a child representative for the child. He further noted that it was not a matter for the Court to demand that the Legal Aid Commission of Western Australia use its limited resources in a way that it had apparently made a reasoned decision not to do.
In relation to the appeal before us, the father's evidence in support of his application to Holden J was contained in his affidavit filed 11 July 2005. Insofar as his application to replace the child representative is concerned, it is clear that the father's underlying concern was that the child representative had formed a view with which he did not agree in the trial before Thackray J. His Honour, in my view, was correct when he noted that there were no specific allegations of bias referred to by the father.
The notice of appeal in relation to Holden J's decision contains nine grounds. It is asserted:
(a)that the judge acted contrary to the facts and against the weight of the facts that were relevant;
(b)that he made findings not supported by the facts;
(c)that he failed to consider or adequately consider what was just and equitable with regard to the welfare of the child and that he failed to give weight or sufficient weight to what was just and equitable with regard to the welfare of the child;
(d)that he erred in the exercise of his discretion by taking into account evidence that was not relevant;
(e)that he failed to act on correct principles or, alternatively, acted on an incorrect principle;
(f)that he erred in the exercise of his discretion in failing to make findings about material matters in the case and otherwise made findings without the provision of adequate reason, leaving the parties to speculate the basis of such findings;
(g)that he erred in the exercise of his discretion having regard to his findings and;
(h)that he demonstrated judicial prejudice and bias against the father, his child and his family.
Considering the limited issues that Holden J had to consider, it is not surprising that the father was unable to substantiate any of these grounds.
In his written submissions, which I will not set out here in full, the father's arguments were directed to a variety of matters which do not, in my view, directly relate to the judgment appealed. He submits that there were personal injustices associated with the legal process that have distressed and angered him. He complains of the award of residence by Thackray J to the mother and the order for supervised contact. He asserts the right of children to live with and know their biological father. He asserts and emphasised in his oral submissions an obligation on the Court to make its own inquiries as to the evidence that might support the finding of what is in the child's best interests. He asserts that Thackray J should have known that the mother's allegations against him were false, and so found, and he asserts that the child representative did know and failed to present such evidence to the Court. He asserts the error of the orders made by Thackray J for supervised contact and that Thackray J was biased against him.
It is clear from the father's written submissions and oral argument that the gravamen of his case is about the decision of Thackray J, and particularly the order for supervised contact. The applications he made before Holden J, in my view, were an attempt to get another decision on that issue, and his appeal against the decision of Holden J as a means of attacking the original decision and orders is entirely misconceived. The father did not deal in either his written or oral submissions before us with any defects in Holden J's judgment.
In the end, there were only two issues of any real substance that Holden J had to deal with. The first was the discharge of the child representative and the second was that the Legal Aid Commission provide the father with an independent lawyer. I have already commented on the argument that the father made concerning a review of Thackray J's decision to order a psychiatric examination.
It is clear that the Court has the power to remove a child representative. See Lloyd and Child Representative (2000) FLC 93-045; Re K (1994) FLC 92-461; and T and L (2000) FLC 93-056. That power is to be exercised in accordance with the proper appreciation of the role of the child representative and, of course, the evidence.
In T and L, Chisholm J expressed the view that while an application to remove a child representative is not strictly covered by the principle that the child's best interests must be treated as the paramount consideration, those interests will normally be a matter of great and probably overwhelming importance. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove such a representative merely because a litigant has taken the view that the representative is acting contrary to that litigant's position or, from that litigant's point of view, contrary to the child's best interests.
A submission that the Court might be expected to follow the child representative's submission is mistaken. Judges are required to form an independent view based on the matters in the Family Law Act.
As the Court said in Lloyd (at 87,689-690):
“There are a number of very good reasons why, in my opinion, the Court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. Those reasons include:
(i)The best interests of the children have to be borne in mind….
(ii)The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not ``on side'' or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
(iii)There is also a public policy consideration….

In this case, his Honour rightly observed that the father made no specific complaints about the conduct of the child representative, but only a general submission that his actions and recommendations had resulted in orders that were not in the best interests of the child. His Honour concluded, as it was open to him to do, that the outcome of the trial had not been as a result of the child representative's influence and recommendations but other evidence before his Honour.
Holden J concluded that in the absence of specific allegations as to the conduct of the child representative and any convincing examples of how he had indicated bias, he did not intend to accede to the application.
In my view, no error in a relevant sense in the approach of his Honour has been demonstrated by the father, nor even faintly suggested. No relevant matter was overlooked. No irrelevant matter was taken into account, and no error of approach or understanding to the relevant principles or the facts has been made out.

In relation to the question of whether his Honour had erred in failing to order the Legal Aid Commission to provide representation to the father, no argument was directed to this point, either in oral or written submissions, and no error on his Honour's part has been demonstrated. For these reasons, in my view, the appeal must fail.
There is one further matter that I want to raise. The position is not as the father asserts, that the relationship between himself and his son has been severed. Thackray J made interim, not final, orders and was careful to do so in anticipation that there may be appropriately at some stage unsupervised contact. It is true that he imposed conditions for supervision and for the father to obtain a psychiatric assessment, and he did so on the basis of proper evidence. It is obvious, perhaps to everyone but the father, that the door is open to him, not closed. If he proceeds as suggested, accepts the finding that his son should see him, albeit on a supervised basis, and submits to the psychiatric assessment, it is available to him to re-apply for unsupervised contact. Holden J made the point that if he obtained the psychiatric report by the psychiatrist suggested by the child representative and was unhappy with it, he could seek another opinion.
The answer to the ongoing relationship with his son, in my view, lies in the father's hands and his alone. He may not like the orders made, but if he really believes the relationship between himself and his son is important, he surely ought to be pursuing it however unreasonable he believes the present constraints to be.

Costs of the Appeal

Both the child representative and counsel for the mother submitted that if the appeal was unsuccessful an order for costs in their favour should be made, and each sought the sum of $1,500. The father opposed such an order on the grounds that it would cause financial hardship.
In my view, as I have set out, the appeal was misconceived, as, in my view, was the application to Holden J as the father's real complaint was against the orders made by Thackray J. The mother and the Legal Aid Commission ought not to be responsible for the costs in such a situation.
The only material before the Court in relation to financial matters is the judgment of Thackray J in relation to property settlement. Whilst it provides limited information, it appears that the former matrimonial home is to be sold and there is some equity for division. In my view, an order that the father pay the costs of the mother and the child representative of $1,500 each in relation to the appeal is entirely appropriate.

ORDERS

The Appeal be dismissed.
The Father pay the costs of the Child Representative fixed in the sum of $1,500.
The Father pay the costs of the Mother fixed in the sum of $1,500.

WARNICK J:

I agree with the orders proposed and the reasons given by her Honour, the Chief Justice.

MAY J:

I agree entirely with the reasons provided by the Chief Justice and would make the same orders.

…..

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

Associate