WALTERS & FLEETWOOD

[2015] FamCAFC 235

FAMILY COURT OF AUSTRALIA

WALTERS & FLEETWOOD [2015] FamCAFC 235

FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Assessment of risk – Assessment of parenting capacity – Where errors are not material to the exercise of discretion by the primary judge – No appellable error established – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Application to adduce further evidence in an appeal – Application dismissed.

Family Law Act 1975 (Cth)

APPELLANT: Ms Walters

RESPONDENT: Mr Fleetwood

INDEPENDENT CHILDREN’S LAWYER: Leanne Walsh

FILE NUMBER: BRC 7101 of 2012

APPEAL NUMBER: NA 21 of 2014

DATE DELIVERED: 11 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Ainslie-Wallace, Ryan & Tree JJ

HEARING DATE: 2 December 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 26 March 2014

LOWER COURT MNC: [2014] FCCA 580

REPRESENTATION

FOR THE APPELLANT: In person

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DA Family Lawyers

Orders

1. The application to adduce further evidence in the appeal filed on 18 November 2014 be dismissed.

2. The appeal be dismissed.

3. There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walters & Fleetwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 21 of 2014
File Number: BRC 7101 of 2012

Ms Walters

Appellant

And

Mr Fleetwood

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Notice of Appeal filed on 14 August 2014, Ms Walters (“the mother”) appeals against parenting orders made by Judge Howard of the Federal Circuit Court pursuant to Part VII of the Family Law Act 1975 (Cth) on 8 April 2014. The orders concern the parties’ daughter, N who was born in 2010 (“the child”).

2. As a consequence of the orders made by the primary judge, the child left the mother’s primary care to live with the father who has sole parental responsibility.  After two months, during which the mother was restrained from having any type of contact with the child, the orders provide for her to spend time with the child for half of the school holidays, on special occasions and either each alternate or every third weekend during school term.  If the mother lives within 100 kilometres of the father’s home the alternate weekend formula applies and, if the distance is greater, the three week scheme operates.

3. In addition, the mother was ordered to attend her general medical practitioner in relation to depression and a psychologist or psychiatrist for treatment of “severe post traumatic embitterment disorder”. Further, the mother was required to attend upon her general medical practitioner to obtain a referral for an alcoholic abstinence course and attend such course as directed. Otherwise, there is a series of orders designed to address the parties’ inability to communicate effectively about the child and to minimise the risk of the child being exposed to family violence and parental alcohol or drug abuse.

4. The orders largely reflect those which an Independent Children’s Lawyer (“ICL”) appointed to represent the child’s interests asked the primary judge to make.

5. The ICL and Mr Fleetwood (“the father”) resist the appeal and seek to uphold the orders.

6. The mother also sought permission to adduce further evidence in the appeal,  that evidence being contained in her affidavit filed on 18 November 2014 and documents that became exhibits in the appeal.  Neither the ICL nor the father resists the application but submit that we would only receive this further evidence if we are satisfied it could properly be received.

Background facts

1. So as to give this appeal context, it is useful to set out in some detail key events in chronological order.  Although the factual context would ordinarily find expression in the reasons for judgment, his Honour’s reasons for judgment contain relatively few findings and it is necessary to look to the evidence in order to understand the child’s history and circumstances. 

2. The father was born in 1986.

3. The mother was born in 1989. 

4. In February 2009, the parties commenced a relationship.  The father was then 23 years of age and the mother was 19 years of age.  They commenced cohabitation in northern New South Wales in June 2009.

5. The child was born in 2010.  She is the only child of her parents’ relationship.

6. There was an ugly incident between the parties at their home on 20 September 2010 and which involved the child. The mother provided evidence that the parties had a verbal argument which escalated into a physical one. Her evidence is that the father grabbed her shirt, threw her across the room, choked her and punched the bed near her head. The mother contacted police at Town A in northern New South Wales who charged the father with common assault (Mother’s affidavit filed 16 April 2013, [7] and [21c], annexures A and E). The father admitted an altercation occurred in a manner similar to that alleged by the mother but said she exaggerated what occurred and denied throwing or punching her. He admitted he entered a plea of guilty. (Father’s affidavit filed 7 May 2013, [2] and [15]).

7. Based on the assault an application was made by the police for an Apprehended Domestic Violence Order (“ADVO”) and an order was made on 8 November 2010 for a period of 12 months for the mother’s protection from the father ([49]).  At the same time the father agreed to attend an anger management counsellor.  At [49] reference is also made to the father sending “…some abusive text messages to the mother complaining of the mother’s multiple sexual partners since separation.”  His Honour mistakenly found that the abusive text messages were the reason for the ADVO rather than his later conviction for breaching the ADVO.  As we will shortly explain nothing turns on this.  

8. The parties separated in late 2010.  The child, who was then 10 months of age, remained with the mother.

9. His Honour provides scant findings in relation to the child’s care and her history of contact with the father.  However, we understand it is uncontroversial that following the parties’ separation, the father spoke to the child by telephone once a week and, in the presence of his father, spent time with her on her first birthday.

10. The reference to abusive text messages at [49] of his Honour’s reasons for judgment relates to events which occurred on 4 February 2011. The mother’s unchallenged evidence concerning the incident on 4 February 2011 is that after she received increasingly foul and abusive text messages from the father she contacted police.  The police records (annexures B and F to the mother’s affidavit filed 16 April 2013) show the mother was concerned that “…the accused [the father] will continue to harass and intimidate her unless he is apprehended.”  Police viewed the text messages and on 20 February 2011 the father was charged and, on his own plea, subsequently convicted of having breached the ADVO. 

11. With the father’s consent, in March or April 2011, the mother and child moved to Brisbane following which occasional telephone contact occurred between the father and child.  It would seem that the parties were unable to reach agreement about the child spending time with the father, as a consequence of which it would appear that the child did not see him between April and October 2011.

12. In early October 2011, the father commenced seeing the child every second weekend.  This usually occurred in the mother’s presence at her home in Brisbane.  Although it is not entirely clear, we understand it to be uncontroversial that this arrangement continued until 27 December 2011, when the parties resumed their relationship and the father moved in with the mother and child in Brisbane.  Their reconciliation was short-lived and in February 2012 they separated again. 

13. Both parties agree that on 26 February 2012 they argued and that the argument escalated into a physical altercation. On the mother’s version of events, the parties argued in relation to the father spending money on a concert. The mother claims that the father broke the child’s toys and became violent. She said she punched him back in response. The parties then attended at Suburb Y Police Station where the police took out two year Protection Orders against each of them (Mother’s affidavit filed 16 April 2013, [21m], [21n] [21r]; annexure J). The father concedes there was an argument in relation to him spending money to attend a concert and that he bought the child a present to replace the ones that were damaged. According to the father, the mother punched him for no reason after which a struggle ensued and she may have been injured as he defended himself. He claims that the mother damaged his car and tail gated him when he left to drive to the police station (Father’s affidavit filed 7 May 2013, [24]-[25]).

14. Between February 2012 and early May 2012, the father regularly spent time with the child on weekends and at the mother’s home.  This informal arrangement ended in early May 2012 following what is said by the mother to be another incident of family violence perpetrated by the father on her. 

15. On the mother’s version, the father sexually assaulted her after which she fled the house. She said that without her permission the father removed the child who was left with a friend of his while he went to work. She rang the police to obtain assistance in having the child returned to her (Mother’s affidavit filed 16 April 2013, [21r]). The father said their sex was consensual. He claims that after the mother left the house he could not leave the child on her own and he took her with him. When he left for work he placed the child with a friend. The child was duly returned to the mother (Father’s affidavit filed 7 May 2013, [28]). The exhibited Queensland police documents (trial exhibits 6 and 7) contain no record of this.

16. In relation to family violence, the primary judge preferred the evidence of the father to that given by the mother and rejected her evidence that the father sexually assaulted her in May 2012 as well as her evidence that the father held a knife to her throat during an incident on 11 June 2012.

17. By agreement, on 11 June 2012, the father visited the child at the mother’s home during which there was a physical altercation between the parties; albeit each gave very different accounts about what occurred. According to the mother the father slammed her against a bed, pinned her down to the floor and held a knife to her throat which caused slight abrasions. Having put the child in the bath he then took her and left (Mother’s affidavit filed 16 April 2013, [21t]). On the father’s version there was a heated argument. While the child was in the bath, the mother threw things at him and she then took a knife and cut up the child’s teddy bears and books which she attempted to set alight. This made him decide he needed to take the child and leave (Father’s affidavit filed 7 May 2013, [29]). It is common ground that as he drove away the mother held a knife to her throat and made cutting motions. The mother claims she did this in an attempt to make him stop the car and return the child. The father says this is how the mother received the abrasions on her neck. The father called police who attended the scene and saw the abrasions on the mother’s neck which they photographed.

18. The mother declined to provide a statement to police that night but did so the next night at the local police station in Suburb X.  The father was charged with a breach of the protection order (made on 28 February 2012).   

19. Shortly afterwards the mother made an application to vary the protection order   to include the child as a protected person and to restrain the father from coming within a certain distance of either of them.

20. It would seem an interim variation of the protection order was ordered on 18 June 2012, which, by consent, was further amended on 30 July 2012.  The effect of the July 2012 variation was to add a clause which restrained the father from coming within 100 metres of the mother such that the father was subject to the following conditions:

    1.The respondent must be of good behaviour towards the aggrieved and must not commit domestic violence.

    2.The respondent must be of good behaviour towards any named person in this order and must not commit an act of associated domestic violence against the named person.

    3.The respondent is prohibited from going to; going to within 100 metres of; entering or remaining in the premises where the aggrieved or any named person resides, is staying or works.

    Except for the purpose of having contact with a child or children but only at such times and in such a manner as is permitted by the aggrieved in writing; or as is permitted by an order made under the Family Law Act.

21. For the purpose of the order, the child is a “named person”.

22. Both parties state that there was an incident that occurred at the mother’s residence on 27 June 2012 when the father attended to drop off child support payments.The mother’s evidence is that the father’s car mounted the curb and drove at her.  There is no dispute that she finished up on the bonnet and then the roof of the father’s car and that he drove a short distance with her on the car until a neighbour helped her down (mother’s version) or pulled her off (father’s version).  She claims that the police were called and that she attended at Suburb X Hospital for x-rays and that the following day she made at statement at a Police Station in Suburb Y.  The mother suggests that the father hid from police for two months before being interviewed and that after hearing the conflicting version of events, the police decided not to press charges (Mother’s affidavit filed 16 April 2013, [21x]).

23. The father’s evidence is that he drove over the curb to place his child support in the mother’s letter box (his modus operandi) so that he could avoid any confrontation with her.  The mother knew he was coming and as he stopped at the letter box she rushed out of the house and attacked him with a wooden spoon.  She then climbed through the driver’s window and continued her attack and somehow clung on to the roof as he attempted to escape.  On his version she attacked the car until neighbours pulled her off and in so doing she hit her head on the road.  He denies he hid from police (Father’s affidavit filed 7 May 2013 [31]) (Transcript 17 March 2014 p 50 lines 40-46, p 51 line 1-29).

24. Queensland Ambulance Service records show that on 27 June 2012 they arrived at the mother’s house at 7.27 pm where police were in attendance.  They were informed of events from the mother.  She complained of a sore back and neck from her fall.  She was offered pain relief but declined. She had bruising (trial exhibit 8).    

25. The father commenced these proceedings by his application filed on 8 August 2012.  By way of final order, he proposed that the child live with the mother and spend time with him each alternate weekend which would increase annually until, when the child turned four, she would live week about with each of her parents.  He sought interim orders in similar terms.

26. In her response filed on 16 April 2013 the mother sought interim and final orders for the child to live with her, for her to have sole parental responsibility until the child turned six, and the father have telephone contact but no face to face contact until the child turned six at which time the question concerning the amount of time she would spend with him would be reconsidered.  The mother also proposed that the father attend a six month parenting course and pay child support in the amount of $150 per week.

27. The father’s application came before the primary judge on 23 October 2012.  The father was represented by a solicitor and the mother appeared on her own behalf.  His Honour made interim orders which provided for the child to spend time with the father once each month at a contact centre in Town E in southern Queensland.  By that time, the mother had moved to live with her father at Town W in southern Queensland.  An order was also made for the appointment of an ICL.

28. Although the father was able to see the child at the contact centre on 11 November 2012, 9 December 2012 (not 21 December 2012 which the mother cancelled) and 23 February 2013, after what the contact centre staff viewed as abusive telephone calls from the mother, the centre withdrew its services.  This meant that the child and father were no longer able to see each other.

29. For good reason, the primary judge was concerned about the mother’s apparently long term misuse of alcohol.  There is no doubt that on 25 December 2012 the mother was found in the street apparently intoxicated and that an unidentified person called an ambulance.  Ambulance officers attended and placed a cannula into the mother’s arm.  The mother regained consciousness and climbed out of the ambulance and, with the cannula still in her arm, ran back to her father’s house.  He took the mother to Town E Hospital where she was diagnosed with “alcohol intoxication”. 

30. The mother seeks to introduce the hospital notes as further evidence in the appeal.  However, from [20] of his Honour’s reasons, it is clear that these notes were in evidence (trial exhibit 11 – judgment at [20]) and it is thus unnecessary that they be admitted on appeal.  In any event, the mother explained that the significance of the hospital records is that they record that the mother told the hospital staff she had a “period of unconsciousness” after consuming six full strength beers.  Her point being she had not consumed sufficient alcohol to cause her to lapse into unconsciousness and therefore, the notes lend credence to her evidence that she has an as yet undiagnosed medical problem which causes her to pass out.  In further support of this contention the mother sought to introduce evidence on appeal to the effect she recently was fitted with a heart monitor to establish whether this may demonstrate a cause other than alcohol consumption for her black outs.  In addition she obtained a medical opinion after the final hearing which concludes that while “alcoholic blackout” was a reasonable provisional diagnosis, based on the mother’s more recent account, other conditions such as atypical seizure disorder would need to be considered.  This further evidence does no more than show the mother continues to press for tests to establish an alternate explanation (to alcohol intoxication) for passing out.  There is nothing in the further evidence that is persuasive of an alternate diagnosis to “alcohol intoxication”.   

31. The proceedings again came before the primary judge on 7 February 2013.  The father appeared with his solicitor and the mother appeared on her own behalf.  His Honour made another interim order for the child to spend time with the father once a month at the contact centre in Town E.  The mother was directed to file a response and the proceedings were adjourned.  The contact service did not agree to facilitate contact and it was not resumed.

32. The ICL arranged for a family report which was prepared by Dr J, who is a consultant family therapist and registered mental health worker.  She interviewed the parties, the father’s partner and sister and made observations of the child in the company of the adults.  These interviews took place in early May 2013 and the report issued on 16 May 2013.

33. Dr J described this as a high conflict family for which each of the parties disclaimed responsibility.  It was her observation the child appeared to be very comfortable with each of her parents but showed signs of anxiety when in the company of both.  We think it appropriate to record her opinion that:

    12.2What is also evident is the lack of insight the parents hold in terms of how their conflict impacts on [the child].  It has been recorded in material provided and observed at the interviews, how readily [the mother] can become agitated.  It is acknowledged that [the mother] contends that her actions are protective of [the child] and no doubt this has been the case, however, this protectiveness is at times counter-productive and creates contexts of high conflict, exposing [the child] to her mother’s dysregulated behaviour.  In terms of attachment, this has the effect of setting an irreconcilable tension whereby [the child] experiences her mother as both a source of comfort and safety as well as fear and danger.  This is an issue of concern as this kind of behaviour has resulted in [the father] being denied time with [the child] even under supervised conditions at a reputable Contact Centre.  [The father] equally, seems to experience difficulty managing his anger and resentment in relation to [the mother] creating similar risks for [the child].

    12.3Despite these issues, [the mother] is clearly the child’s primary caregiver and as such a consistent attachment has been established.  It is my opinion that it is in [the child’s] best interests to have this attachment nurtured and supported rather than create a context through an equal shared care arrangement that arguably would create an insecure attachment with both parents.  At this stage of [the child’s] development, it is important that she have quality interaction with the non-custodial parent.  The frequency is less important.  It is noted also that geographical distance is also a mitigating factor in terms of frequency.

1. Dr J went on to recommend that:

   ·the child live with the mother and spend time with her father;

   ·the parties be jointly responsible for long term decisions in relation to the child and solely responsible for day to day matters;

   ·the child spend time with the father, initially supervised at a contact centre, and then unsupervised on a single occasion once a week for four hours.  If after six months the contact has progressed without incident, then the time would increase to each alternate weekend from Friday afternoon until Sunday afternoon.

2. We pause to observe that before us the mother complained Dr J was somehow biased against her.  It is noteworthy that her first report was much more supportive of the child remaining with the mother than the orders proposed by the father.  As the complaint about bias did not ultimately form part of the mother’s challenge to his Honour’s orders, we will not refer to it again.

3. In any event, Dr J also recommended that:

   ·both parents attend a parenting orders program so as to understand how parental conflict impacts on children and develop strategies to lessen conflict;

   ·both parents attend a parenting orders program to develop their parenting skills;

   ·the incoming contact centre be given information about the mother’s history of complaints concerning the Town E contact centre so that strategies could be put in place to manage any recurrence.

4. It is important to observe that Dr J explained:

   Evidence of that pattern repeating itself may meet the Court’s definition of alienation as it effectively denies the subject child an opportunity to have a relationship with her father.  Further, this may warrant active Departmental intervention as it is constitutive of emotional abuse.

5. In effect, Dr J explained to the mother that she needed to co-operate with orders for the child to see the father and that if she continued as she had been, her behaviour in clinical terms, was tantamount to emotional abuse of the child. 

6. Dr J also recommended that:

   ·Both parents obtain professional assistance to address their propensity for dysregulated behaviour and poor impulse control.

7. So that it is clear at the outset, this recommendation is predicated on Dr J’s satisfaction that each of the parties had engaged in violent behaviour.  As Dr J made clear she understood the father had a history of violence; as did the mother. 

8. The mother and her mother are estranged.  However, for a few weeks in April 2013 they were reconciled and the child’s maternal grandmother stayed with the mother.  It was during this period that what the primary judge described (at [38]) as “…another example of the mother’s inability to control her consumption of alcohol” occurred.  Because of this incident’s importance to his Honour’s reasoning, it is useful we record its details in full:

   …the mother had been out drinking with a male companion name [sic] “[her male companion]”.  It seems that this is not the same [person] who is the mother’s current partner ([name of current partner]).  The ambulance notes that the mother and [her male companion] had been “out drinking at clubs and taverns tonight”.  The notes state further:-

   “When it was time to go home [the mother] had an unsteady gait and was being assisted to walk by [her male companion].  At some stage she stumbled and [her male companion] caught her and she landed on top of him.  People watching on became concerned for her welfare as she was being bundled into a taxi for trip home.  [Her male companion] says he told someone the address they were going to.  Someone not known to either of them called QAS.  QAS arrived at address expectantly [sic].  1^st contact was [the mother’s] mother who reported that she gets drunk frequently.  [The mother] is initially pretending to be asleep but become offended at something her mother just said and then they started to have a heated argument. Once that settled down [the mother] was able to say that she had been drinking and was unhurt and just wanted to sleep.  She denies being injured in any way.  She was accurate with her details and gave QAS no concern.  She consented to a basic examination.  [The mother], [her male companion] and the [mother’s] mother were advised to watch her for head injury signs if she did hit her head such as unable to be roused, vomiting and unable to walk.  Confusion and unequal pupils.  Advised that they call QAS if any of these undesirable symptoms manifest.  As a precaution VIRCA was applied when transport was offered and she declined/refused.  [The mother] gave her refusal voluntarily without coercion.  She was informed that should a head injury exist the risks are that she may develop vomiting headache unable to walk unconscious or die.  [The mother’s] refusal was relevant to her present condition bearing in mind that some symptoms can be caused by liquor consumption.  She was alert and orientated and comprehended and deemed to therefore have capacity to refuse.  Advised [her male companion] and mother accordingly and to monitor [the mother] through the night and call QAS should she deteriorate.”

   (Original emphasis)

9. It was unable to be established whether or not the child witnessed the mother’s intoxication.  His Honour described the mother’s refusal of the ambulance service’s offer to take her to hospital as “…another example of the mother refusing to accept sensible medical advice” (at [38]).

10. The next incident of note occurred on 5 June 2013 when, once again, the ambulance service came to the mother’s aid.  Having left the child in her father’s care, the mother went to a local tavern.  Late that night a mother and daughter cleaning team found the mother lying on a wet concrete surface and unable to be aroused.  Her jeans were pulled down to just above her knees.  When ambulance officers arrived she was easily roused and walked unaided to the ambulance.  The mother was distressed and declined to have a physical assessment or provide details of how it was she came to be in this situation.

11. The mother assaulted a companion named H (not her current partner who has the same name) on 9 June 2013.  They were on a pub crawl during which the mother, who had apparently consumed alcohol to excess, was seen staggering, yelling and swearing at her companion.  Police were called to deal with the public nuisance she created and, as his Honour noted, somewhat remarkably in their presence, the mother punched her companion in the jaw.  The mother was arrested with the police notes recording she was “extremely intoxicated and could hardly walk…” (at [45]).

12. Further interim orders were made by the primary judge on 14 June 2013 and directions were made for another interim hearing.  As his Honour noted at [42], notwithstanding his specific direction that the mother file and serve an affidavit from her father for the up-coming interim hearing, no such affidavit was filed.  On that occasion further interim orders were made for the child to spend time with the father:

    (a)for six supervised visits; and

    (b)thereafter unsupervised for four hours each alternate weekend.

13. Orders were also made for the parties to attend a psychiatric assessment to be arranged by the ICL.  Dr L, who is a consultant psychiatrist, was duly appointed and he interviewed the parties in late July 2013. 

14. It is not entirely clear whether, in accordance with the orders dated 14 June 2013, the child spent time with the father.  However, there was a further interim hearing on 15 July 2013 which resulted in orders that the child spend time with the father as follows:

    (a)once a week for six weeks supervised at the Town M Contact Centre; and

    (b)thereafter unsupervised for four hours each alternate weekend with changeover to take place at the Town M Contact Centre or such other centre as the parties agree.

15. Provision was also made for the father to speak to the child on Wednesday and Saturday evenings.  Directions were made for another interim hearing on 17 September 2013 which his Honour directed that the mother’s father attend.  As best we can tell, the order directed to the mother’s father relates to oral evidence which the maternal grandmother gave in July 2013 to the effect that during her brief reconciliation with the mother, she observed the mother drink alcohol to excess and that the mother harboured suspicions the child was at risk of sexual abuse from the father. 

16. In any event, in accordance with the orders made on 15 July 2013 the child commenced spending time with the father at the Town M Contact Centre, albeit the mother withheld the child on 11 and 25 August 2013 because she said the child was unwell and the mother needed to work.

17. An incident occurred between the father and his partner (Ms C) at their home on 13 July 2013 in relation to which Ms C told police (who were called by her brother) that she wanted the father to leave.  No further action was taken and the father, Ms C and her two children were living together at the time of the trial. 

18. The mother commenced a relationship with her partner Mr B in August 2013.  They did not live together, although as they were expecting a child at the time of trial, they had plans to do so. 

19. Dr L’s report was released on 12 September 2013. In relation to the father, Dr L recommended he see a consultant psychiatrist or consultant psychologist for treatment and support psychotherapy to assist him to address his conflicted relationship with the mother.  Dr L also recorded that the father required monitoring and potentially treatment for depression. 

20. Dr L assessed the mother as having a severe and extremely problematic history of alcohol abuse and, like the father, she has “…features of a personality dysfunction marked by a propensity for severely conflictual interpersonal relationships”.  It was his recommendation that the mother be monitored for depression and receives treatment, if necessary, and that she sees a consultant psychiatrist or psychologist for a treatment plan and supportive psychotherapy for what he described as her “severe post traumatic embitterment disorder”.  Dr L explained this syndrome had been described by a Dr D and in Dr L’s view, the syndrome provided the most useful method “…of understanding the anger and rage, which [the mother] harbours and which will guide (hopefully) her psychological recovery from the abusive experiences, traumas and losses she has endured”.  He adopted Dr D’s view that “wisdom therapy” is the best type of psychotherapy for a person with severe post traumatic embitterment disorder.  He considered whether or not the parties suffered from an acute disorder of the type outlined in standard diagnostic manuals (DSM IV) and determined that neither party has such condition. 

21. Following the interim hearing on 17 September 2013, the primary judge made orders that in the absence of an agreement between the parties, the child would spend time with the father for four hours each Saturday with changeovers to take place at Town M Contact Centre.  If the contact centre was unavailable, changeover was to take place at Town M Police Station and be facilitated by the maternal grandfather.  The mother was restrained from attending changeovers at the police station and being under the influence of alcohol whilst the child was in her care. 

22. If the mother wished to consume alcohol the child was to be left with the maternal grandfather.  In addition, she was ordered to enrol the child in day care at least four days a week and to place the child with the maternal grandfather when she worked on Sundays.  The mother was restrained from changing the child’s place of residence from Town E in southern Queensland and, with the maternal grandfather’s consent, he was ordered to attend the mother’s home every day to check on the child.  The father was ordered to provide his address to the ICL and keep her informed about where he lived.

23. His Honour also listed the matter for final hearing in March 2014 in relation to which he made directions.  The mother substantially complied with these orders until December 2013 when, without permission from the court, she again stopped contact.  The child and father did not see each again until February 2014. Because there are issues about the failure to comply with these directions and procedural fairness to the mother, it is useful if we set out those directions which are relevant.  They are:

    …

    22.That each party file and serve on each other party by 17 February 2014:

    a.one (1) Affidavit of the party setting out all of the evidence in chief of that party upon which they intend to rely at the trial; and

    b.one (1) Affidavit of each other witness intended to be relied upon at trial.

    …

    25.That no party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without the leave of the Court.

    …

    (Original emphasis)

24. Dr J conducted further interviews for an updated family report on 27 November 2013.  In addition to the parties and the child, she interviewed the parties’ partners and the maternal grandfather.  From these interviews Dr J reached the conclusion that the child is strongly attached to both parents, although she was somewhat uncertain about the nature of the child’s attachment to the mother. 

25. As a prelude to her recommendations Dr J said:

    12.4…the most pertinent issues within this matter in terms of determining Parenting Orders that are in the best interests of the child are the capacity of each parent to facilitate a positive relationship between [the child] and the other parent and the capacity of each parent to provide a safe, secure and stable caregiving context for [the child] and finally, how [the child] ought to spend time with each of her parents. …

    (Updated Family Report, 22 January 2014, p 17) 

    In essence these are the issues engaged at trial.

26. As to her recommendations, Dr J slightly favoured the child continuing to live with the mother with regular and quite extensive unsupervised time with the father.  Her recommendations are set out below:

    12.5Firstly, there is a substantive case for [the child] remaining in the primary care of her mother and I am supportive of this with the caveat that [the mother] recognise she is partaking in alienating behaviours, demonstrates a capacity to address this and facilitate a meaningful relationship between [the child] and her father.  If the Court considers it is in the best interest of the child to remain living with her mother, it is recommended that [the child] spend alternative weekends, half the holiday periods and alternate Christmas days and birthdays with her father, with change overs occurring at a neutral location, ideally a contact centre that is midway between the party’s [sic] residences.  I have not formed the opinion that supervised contact is required.  Given the level of animosity [the mother] holds towards [the father] and the pattern of her ceasing contact without substantiated cause, it is recommended that [the mother] attend a Parenting Orders Program.  Further, given the evidence that [the mother] experiences a great deal of difficulty facilitating a meaningful relationship between [the child] and her father (perhaps due to underlying mental health difficulties and possible substance abuse), it is recommended she attend a reputable mental health worker as a means of addressing her alienating patterns, develop skills to de-escalate conflict and address substance abuse issues if required.  It is also recommended that the mental health worker receive a copy of the Family reports.  Refusal to engage in these recommendations suggests there is little chance that the underpinning issues of this matter will change and the process of further alienation is highly probable, warranting a change of residence.

    12.6Within this matter there is also a substantive case for [the child] being in the primary care of her father.  To date there is little evidence that [the mother] is able to facilitate a meaningful relationship between [the child] and her father and it is therefore reasonable to assume that in all probability alienating behaviours will persist whilst [the child] is in the primary care of her mother.  Although [the father’s] parental capacity is largely untested, this alone should not be determinant.  Further, his lack of parenting experience is largely due to [the mother] obstructing the time he has had with [the child].  Despite high levels of frustration and disappointment due to his time with [the child] being limited or ceased as well as ongoing allegations made by [the mother] that he is negligent and a poor parent, [the father] has remained calm and stable with no evidence he poses any risk.  This is not the case with [the mother] who is vulnerable to poor impulse control, aggressive behaviours and dysregulated affect.  These issues combined indicate that [the father] is potentially more able to provide a safe, stable and secure caregiving context and is better positioned to facilitate a meaningful relationship between [the child] and both her parents.  If the Court determines [the child] ought to reside with her father, it is recommended that a moratorium of contact for 2months [sic] occur so as to allow [the child] to settle within her father’s household.  Subsequent to this, it is recommended that contact between [the mother] and [the child] be supervised at a reputable contact centre midway between the party’s [sic] residences, occur alternate weekends for a period of 3 hours, increasing to unsupervised for a period of 5 hours and finally, increasing to weekends and holiday periods as outlined in section 12.5.  Progression should only occur when [the mother] has addressed all recommendations and there are no issues regarding her conduct during contact.

    (Updated Family Report, 22 January 2014, pp 17-19) 

27. At the final hearing and with obvious concern for the short term distress the child would feel being removed from the mother’s full time care, Dr J said that if the court was satisfied the mother was unlikely to support the child’s relationship with the father and there was a real possibility there would be no ongoing relationship between them, the child should live with the father.  She repeated her earlier opinion that such a move would not be ideal but that the child was sufficiently resilient and in the long term she would cope.

28. The final hearing took place before Judge Howard on 17 and 18 March 2014 with final submissions being received by both parties on 21 March 2014.  The ICL submitted that the child’s best interests would be met if orders were made for her to live with the father.  This distressed the mother to such a degree that rather than require her to make oral submissions, his Honour permitted her (and also the father) to rely on written submissions if they wished.  Both did. 

29. His Honour published his reasons for judgment on 26 March 2014 and requested that the ICL provide a minute of order which gave effect to his findings.  This was done and as we mentioned earlier the orders under appeal were made on 8 April 2014.  His Honour thus made a variety of orders which, in effect, implemented the recommendations made by the two experts. 

Trial judge’s reasons for judgment

1. There is no challenge to the primary judge’s statement of the applicable law and we will thus focus on his Honour’s findings and the reasons he gave for his conclusion that it was in the best interests of the child to live with the father and the consequential orders. 

2. His Honour was satisfied that it was in the best interests of the child to enjoy the benefits of a meaningful relationship with both her parents.  The expert evidence to the effect the child had close relationships with each parent was accepted and both parties were found to take their parental responsibilities seriously and to have at least good (in the father’s case excellent) attitudes towards the child.  In relation to these matters, the essential points of difference were that whereas the father understood that the child needed to have a relationship with the mother which he would facilitate, “…the mother has failed to realise the damage that she has been doing and will continue to do to the child if she continues upon her present path of denigration of the father…” (at [114]). 

1. His Honour examined the evidence concerning the father’s attempts to maintain and develop a relationship with the child and found he had “…tried long and hard to obtain parenting orders to enable him to spend time with the child…” (at [113]). However the mother lacked the capacity to facilitate a relationship between the child and the father [64] and even after orders were made for contact between them, she went looking for excuses so as not to comply with the orders.  For example, on 12 October 2013 when she attempted to persuade police to check the father’s child car seat (and thus prevent him from taking the child home).  Further, in November and December 2013 when the mother took the child to a doctor and sought an opinion about whether a rash on the child’s face had been caused by the father’s “wilful exposure…of the child to berries” which meant the child should not continue to visit the father (at [29]-[32]).  It was telling that the doctor encouraged the mother to attempt to reach an agreement with the father about the child and that he was not in a position to say the child should not see him.  Contrary to the doctor’s advice, “the mother unilaterally suspended” the father’s time for some months and then “allowed” very limited time (at [33]). 

2. This was not the only occasion on which the mother failed to heed “sensible” medical advice or found herself in actual and on occasions open conflict with people concerned with her or the child’s welfare.  In an attempt to understand why the mother found herself so often in conflict with people interested in her or the child’s welfare, consideration was given to her key family relationships, her relationships with the father and current partner and how she functioned generally. 

3. As to the mother’s family, the mother openly expressed her hatred for her mother, hated her stepfather and was estranged from her sisters.  On the other hand, she had a reasonably good relationship with her father and her partner, the latter of whom appeared to be a reasonably sensible person.  The mother was found to harbour “significant hatred” towards the father.  The poor quality of these relationships was consistent with Dr L’s opinion that the mother suffered a condition which adversely affected her ability to engage in personal relationships with other members of society, including those closest to her.

4. Putting to one side the manner in which the mother dealt with police, it is significant that in her dealings with a contact centre the mother was “very angry and abusive on the telephone and screaming loudly down the telephone before hanging up on contact centre staff” (at [24]) (original emphasis).  She was confrontational at the centre and the effect of her behaviour was that the child could not spend time with the father as ordered.  She was no less abusive and, as his Honour found, inexcusably racially abusive in her dealings with the father’s solicitor.  For example, on 20 January 2014, the mother wrote to the father’s solicitor in the manner set out below:

   …

   “Seriously … how fucking dumb are you?

   All I have asked for is a simple fucking email stating as to if you do or do not agree I will pre write it for you seen as your brain is never turned on!!!!

   “In regards to your request, our client does not agree to having order no. 7 removed from current orders”

   IS THAT FUCKING HARD ??????????

   Another piece of information for you.  I suggest you stop your unnecessary bullshit before I sue you!!!

   I AM PREGNANT UNNECCESSARY STRESS IS NOT WELCOMED DURING A PREGNANCY.

   You need to go back to school and re do your law degree because you have absolutely no idea what you are talking about in any of your emails.

   English is the common language used in Australia I suggest you use it or go back to your own friggin country!

   Don’t try me because If you cause any complications in my pregnancy I will sue you.”

   (Reasons for judgment at [60]) (Original emphasis)

5. Vile racial abuse was also directed to the father’s partner and there was a large volume of correspondence in which the mother “…heaped scorn abuse and derision upon the father, the father’s lawyer and members’ of the father’s family…” (at [61]). By way of example, to the father and others the mother repeatedly called the father’s partner the “black cunt”.  There is no challenge to these findings which his Honour described as “obvious evidence of racism”.

6. In a similar vein, his Honour was satisfied “…the mother has been expressing her negative opinions about the father to the child or in the presence of the child…” (at [67]).  This was evidenced by the child’s question to the mother in the presence of Dr J “[s]o do you still hate my daddy” ([67]) and the mother’s inappropriate interjections and accusations made to the father when he was speaking with the child on the telephone.

7. This behaviour was, in effect, consistent with Dr L’s opinion that the mother has features of a personality dysfunction “marked by a propensity for severely conflictual interpersonal relationships” (at [75]).

8. The mother’s use of alcohol was a key concern as was her ability to behave appropriately when inebriated.

9. The first incident of note occurred on 1 October 2004 and established that by the age of 15 years the mother consumed alcohol to excess and as those problems continued well into 2013, it was clear that the 1 October 2004 incident could not be dismissed as a youthful indiscretion.  Thus the evidence established that the mother’s “…issues with alcohol and her inability to appropriately moderate her behaviour have continued – virtually right up until the present day” (at [18]). 

10. There is no challenge to the accuracy of his Honour’s findings concerning the 1 October 2004 incident and it is set out below:

    15.On 1 October 2004 in Town D, New South Wales, the mother was intoxicated and was detained by the police.  The police notes of 1 October 2004 note as follows:

    “At 9.30pm on Friday the 1^st October 2004, the young person was located by Police in […] Park well affected by alcohol consuming alcohol from a bottle of ‘Smirnoff’ vodka spirit.  Due to her inability to take care of herself and her state of intoxication, she was detained and conveyed to the Police station with the aim to contact a parent/guardian to release her into their custody.  Whilst at the station she was placed in a muster room, not in the charge room due to her tender age.  The young person insisted on Police supplying her with a cigarette.  This request was refused.  The young person started to walk out of the station, she was informed she was not able to leave until a parent/guardian was able to take her into their custody.  The young person became aggressive and abusive towards Police and had to be restrained.  The young person was placed in to the charge room into a dock.  A mobile phone was in her possession in the dock and she had a silver chain best around her waist that was a custody risk.  The dock door opened and the young person was invited to leave the dock and remove her personal property.  The young person refused to leave yelling abuse at Police.  Eventually the young person was forcibly removed for the purpose of being searched.  She resisted, kicking [the Leading Senior Constable] in the stomach as she was standing on the seat in the dock.  The young person had to be restrained on the ground whilst a female officer removed her property.  The young person resisted any attempt to put her legs back in the dock, as Police were trying to push her in, the young person kicked [the Constable] in the shins.  Eventually the door was closed.  The young person was entered into custody, during that period the young person continued to yell loud abuse at any Police officer present.  The young persons [sic] father was contacted, he stated that he was working a shift as a taxi driver and was unable to attend until 4:30am.  A Duty Officer from [Town T in northern NSW] attended the station and spoke to the young person, who abused the Duty Officer in response.  Whilst in the dock the young person was baring her buttocks towards Police whilst wearing a G-string and continually yelled abuse at Police.  With the Duty Officer present it was decided to move the young person to a cell where the young person had more room and a mattress to lie on with a blanket.  The dock door was opened and the young person hurled abuse at the officers present.  No officer touched her or came into contact with her in any way.  The young person walked to the cell and stood in the door yelling abuse directly in the face of [the Leading Senior Constable], as she was yelling, saliva from her mouth was striking [the Leading Senior Constable] in the face.  [The Leading Senior Constable] asked her not to spit in his face, the young person spat a mouthful of spit then directly into the fact of [the Leading Senior Constable] from a distance of about 20cm away.  The saliva struck the officer in the left eye, cheek, forehead and hair.  The young person walked into the dock and the dock was secured.  [The Leading Senior Constable] immediately washed the saliva off his person.  The young person was informed that she had assaulted Police and action would be taken.  The young person continued yelling loud offensive abuse at Police for a further 40 minutes before quietening down.  Police suspect the young person may have had more than alcohol this evening.  Neither [the Constable nor the Leading Senior Constable] were injured as a result of each assault.  [The Leading Senior Constable] felt disgust at her actions, [the Constable] felt pain where she was kicked for some time afterwards.”

    (Original emphasis)

11. His Honour went on to make findings about a number of other incidents in which the mother came to the notice of police and health services because of her apparently drunken and abusive behaviour.  We have already referred to a number of these and point out that his Honour was clearly concerned that on 9 June 2013 the mother assaulted her companion in the presence of police.  Thus, his Honour was satisfied he could accept the opinion of Dr L that the mother’s history of alcohol consumption was “severe and extremely problematic” such that he went on to find “[t]he repeated excessive use of alcohol by the mother clearly is a significant risk factor for the young child.  The mother has not, to date, accessed any form of proper counselling or expert assistance to assist her in dealing with her excessive consumption of alcohol” (at [90]).

12. We will discuss family violence issues where relevant to grounds of appeal, and it is sufficient to record at this stage his Honour was satisfied that the parties’ relationship was marred by family violence inflicted by each of them.  Having analysed the evidence, seen the mother’s “…on a large number of occasions aggressive” behaviour when giving evidence ([130]) and taking into account the evidence of both experts that with each of them the father remained calm and stable ([71]), his Honour came to the view that in relation to family violence he preferred the evidence of the father. 

13. There is no doubt that in coming to this view his Honour was influenced by the fact that both prior to the parties’ relationship and since it came to an end, the mother has been violent whereas “[i]nappropriate conduct by the father (in the form of being a party to family violence) appears to have ceased entirely following the final termination of his relationship with the mother” (at [50]). 

14. In this regard, his Honour was impressed by the father’s partner and her evidence about the nature of her relationship with the father.  The father’s partner was described as:

    70.…perceptive, sensible, child focused, intelligent, caring, understanding, sympathetic, supportive of [the child] and supportive of the father in his endeavours to obtain an order whereby [the child] would come to live permanently in their household.  [The father’s partner] is also well aware of the importance of [the child] continuing her relationship with the mother.

15. Her evidence that the father does not have an anger problem was accepted, as was her evidence about a heated argument she had with the father in July 2013.  Namely, that although heated, the argument did not involve physical violence and there had been no further anger or family violence issues ([58]).

16. His Honour was satisfied the father has the capacity to facilitate a relationship between the child and mother ([69]) and to provide for the child’s emotional and intellectual needs ([109]).  The father is a calm and reasonable person, in fulltime steady employment who has paid child support and cared for the child when she has been with him.  His Honour agreed with Dr J that the child is not at risk in the father’s care with that inference also available from the evidence given by Dr L. 

17. Notwithstanding these strengths, because the mother was the child’s primary carer and had been from birth it would be a drastic step to place the child with the father.  This was the opinion of Dr J but, given her evidence that the child was robust and in the long term would cope, the evidence in support of a change in residence was overwhelming.  The essence of his Honour’s conclusion in that regard is found at [71] which is set out below:

    I want to make it perfectly clear in these Reasons for Judgment though – even in the event the father was not in such a steady relationship with [the father’s partner] – I would have been convinced that the primary residence needs to change.  The mother is utterly incapable of controlling her behaviour and her hatred of the father seems to know no bounds.  I note further evidence from Dr [J] stated in paragraph 12.6 of her report where she states:-

    “Despite high levels of frustration and disappointment due to his time with [the child] being limited or ceased as well as ongoing allegations made by [the mother] that he is negligent and a poor parent, [the father] has remained calm and stable with no evidence he poses any risk.  This is not the case with [the mother] who is vulnerable to poor impulse control, aggressive behaviours and dysregulated affect.  These issues combined indicate that [the father] is potentially more able to provide a safe, stable and secure caregiving context and is better positioned to facilitate a meaningful relationship between [the child] and both her parents.”

    (Original emphasis)

18. The presumption of equal shared parental responsibility was rebutted and his Honour was satisfied that an order of that type would inevitably lead to further conflict.  As the child would live with the father it was appropriate he have sole parental responsibility (the orders sought by the mother proposed sole parental responsibility in this circumstance). 

19. As to the child’s time with the mother, it was uncertain whether she would remain in the Town W area or move to Town O in south east Queensland or Brisbane.  The former scenario presented practical difficulties in relation to the child spending time with her, whereas the latter did not raise any significant practical difficulties.  His Honour was not persuaded that an order for substantial and significant time would be appropriate, and as we said at the outset, orders were made in relation to both scenarios and more or less in accordance with the frequency suggested by both parties.    

Grounds of appeal

1. The appellant is self-represented and prepared her grounds of appeal. The grounds upon which she relies are set out below:

   1.        The trial Judge made a mistake as to the facts.

   2.The trial judge erred by making findings inconsistent with the evidence.

   3.The trial judge failed to take into account material of significant importance upon making his findings.

2. Because the grounds of appeal are incapable of establishing error we went to considerable effort with the mother to distil the challenges she wished to make.  As it transpired this required us to explain that catchwords do not form part of a judgment and to distinguish between the mother’s asides which appeared to complain about those involved in the proceedings, regrets the mother had about the way she ran her case and the challenges she wished to pursue.  The challenges she wished to pursue will be addressed and can be distilled into five discrete topics, namely:

   1.denied procedural fairness to the mother in that the trial judge refused her request to adduce evidence from her father and did not give her an opportunity to tender documents produced under subpoena;

   2.errors of fact in relation to family violence which affected his Honour’s assessment of the comparative magnitude of the risk of exposure to family violence;

   3.erred in failing to appreciate the mother had good reason to withhold the child from contact with the father;

   4.gave too much weight to the opinion expressed by Dr J and failed to take into account that her evidence was unreliable;

   5.gave too much weight to the opinion of Dr L and, in particular failed to take into account that the syndrome he said the mother suffers is not recognised in DSM IV; and

   6.failed to take into account that the mother was pregnant and in the foreseeable future the child would have a sibling.

3. As we commence our discussion of these challenges, it needs to be understood that a trial judge is not required to make findings in relation to every factual matter and, that in this case, the primary judge published his reasons within a few days of the close of evidence.  The evidence was undoubtedly fresh in his mind and it is appropriate that the presumption of correctness of the decision be given full effect and only displaced by clear evidence of error in relation to matters which are material to the exercise of his Honour’s discretion.

Procedural fairness

1. We will deal with the question of procedural fairness first.

2. As we have already mentioned, his Honour made trial directions and allocated trial dates approximately six months prior to the trial.  No doubt, so as to afford procedural fairness to both parties and the ICL, he ordered the parties to file and serve their affidavits about four weeks prior to the trial date and specifically warned them in writing (by order) that a failure to comply with these directions, meant the defaulting party would not be permitted to rely on a non-compliant affidavit without leave.  Thus there can be no doubt that all parties understood that evidence in chief was to be given by affidavit and the failure to comply with the trial directions could seriously compromise their case. 

3. As it transpired, neither party complied with the trial directions.  The father filed his affidavit on 4 March 2014 and the mother filed hers on 14 March 2014.  That is, the last working day prior to the trial.  Both parties also indicated they proposed to call evidence from a number of people, none of whom had sworn affidavits.  The mother was given permission to rely on her affidavit.

4. In relation to the mother’s father, his Honour asked the mother:

   HIS HONOUR:  …but is there any reason that you have as to why you didn’t file an affidavit from [the mother’s father], say, by Friday, 14 March?

   MS [WALTERS]:  No, your Honour, there isn’t a reason.

   (Transcript, 17 March 2014, p 4)

5. His Honour then discussed the various witnesses which the father proposed to call.

6. Counsel for the ICL submitted that notwithstanding the procedural unfairness it would involve, it was in the child’s interests for the parties’ partners to give evidence.  Self-evidently these witnesses had the potential to be of real significance and permission was given.

7. However, his Honour was not persuaded that the other witnesses should be permitted to give oral evidence.  It is noteworthy that the mother failed to provide an affidavit sworn by her father containing the evidence he would give.  Indeed she did not even provide a proof of evidence, statement or anything of that ilk to enable his Honour to evaluate the potential significance of his evidence.  We observe that, notwithstanding the mother sought to adduce further evidence on appeal, she did not seek to adduce evidence from her father about the evidence he wanted to give before the trial judge.

1. His Honour’s decision to refuse the mother’s request for her father to give evidence was exquisitely a matter of discretion.  It is the type of decision about which a court on appeal should be slow to overturn.  That said, we see no error in the approach adopted and this aspect of the mother’s challenge must fail.

2. The next procedural fairness challenge concerns what the mother contends was his Honour’s decision to close the evidence without giving her an opportunity to tender documents produced under subpoena.

3. This challenge did not form part of the challenges raised in the mother’s Notice of Appeal or her summary of argument.  Rather, her summary of argument proceeds on the basis that the primary judge failed to take into account documents produced under subpoena by the NSW Police Force in relation to various COPS events in which the father is identified as the person of interest.  The point being, that until shortly prior to the hearing before us, the mother asserted that his Honour erred by failing to have regard to these COPS entries which she said were admitted into evidence.  It appears that it was only on the mother’s more recent review of the transcript that she realised that of the various bundles of documents only specific pages were tendered and not the entire bundle.  As the transcript of the trial demonstrates, his Honour made it very clear that only portions of the various bundles of documents were admitted into evidence.  The mother’s seemingly mistaken view about what in fact transpired does not result from any error by his Honour.

4. A review of the transcript of the trial shows that a number of documents were tendered during the trial and then after the oral testimony finished counsel for the ICL tendered a considerable volume of material produced under subpoena.  By way of preamble, counsel for the ICL explained:

   [Counsel for the ICL]:  …would seek to tender from the subpoenaed materials in this fashion, highlighting to your Honour bundles of material, such as the subpoena number 3 from the [Y] contact centre, the ‑ ‑ ‑

   …

   [Counsel for the ICL]:  And we’ve simply tagged and numbered with yellow flags the particular pages that ‑ ‑ ‑

   HIS HONOUR:   Will form the exhibit.

   [Counsel for the ICL]:   The exhibit, yes, your Honour. 

   (Transcript of proceedings, 18 March 2014, p 197)

5. The exchange proceeded:

   [Counsel for the ICL]:   The next one will be the Commissioner of Police New South Wales, bundle number 5. 

   HIS HONOUR:   Thank you.  We’ve got that, New South Wales Police. 

   [Counsel for the ICL]:   Yes.  Bundle number 7:  Queensland Police Service. 

   HIS HONOUR:   Hang on, what about six? 

   [Counsel for the ICL]:   Not six, your Honour. 

   HIS HONOUR:   You went from five ‑ ‑ ‑

   [Counsel for the ICL]:   I’m referring to bundles, your Honour, the actual subpoena bundle. 

   HIS HONOUR:   Okay.  Sorry.  So exhibit 5 is New South Wales Police.

   (Transcript of proceedings, 18 March 2014, p 198)

6. The tender process undertaken by the ICL concluded with the following exchange:

   [Counsel for the ICL]:   Then we have from the [Town W] Hospital and Health Service, which are effectively the records from the [Town E] emergency section of the hospital. 

   HIS HONOUR:   Exhibit 11.

   EXHIBIT #11 [TOWN W] HOSPITAL AND HEALTH SERVICE DOCUMENTS

   [Counsel for the ICL]:   Those are the documents that the independent children’s lawyer seeks to rely upon. 

   HIS HONOUR:   Right. 

   [Counsel for the ICL]:   As being what we suggest are the relevant documents that your Honour would consider in determining the matter. 

   HIS HONOUR:   And in terms of those bundles, have you tagged the pages that you want to take me to?

   [Counsel for the ICL]:   Yes.  They’re all ‑ ‑ ‑

   HIS HONOUR:   And it’s only those tagged pages which actually form the exhibit.

   [Counsel for the ICL]:   Yes, your Honour. 

   (Transcript of proceedings, 18 March 2014, p 200) (Original emphasis)

7. There were then further exchanges in which his Honour established the mother had read the documents now tendered but the father had not.  His Honour then said:

   HIS HONOUR:   All right.  Well, anyway, it’s a matter for you.  The trial is over.  That is to say the evidence is concluded.

   (Transcript of proceedings, 18 March 2014, p 201)

8. According to the mother, his Honour’s remarks “the evidence is concluded” constitute his refusal to entertain any application by her for the tender of documents.  We do not accept this proposition.  In our view, on a proper reading of the transcript, these remarks were directed to the father and his failure to inspect the documents now tendered by the ICL.  His Honour’s point being that the father could not expect the court to delay completion of the hearing merely because of his failure to inspect documents which had been available for inspection for a long time.  It is appropriate to note that the father did not challenge his Honour’s remarks at first instance or on appeal.  Nor, before his Honour did the mother. 

9. We are conscious that the mother appeared before his Honour on her own behalf but once again a fair reading of the transcript of the trial establishes her active participation in it and her ability to challenge rulings when she perceived it was in her interest to do so.  Her submissions in relation to the receipt of evidence from potential witnesses, is a case in point.

10. We are of the view that by this sub ground, the mother constructed an argument of convenience in order to mask her failure to adequately attend the exchanges between counsel for the ICL and the primary judge.  Had she done so, there is no reason to doubt that she would have understood only the tagged documents were tendered.  Error in the manner alleged has not been established.

11. Nonetheless, because the mother appeared on her own behalf, we thought it appropriate to consider the forensic value of the documents at the heart of this challenge.

12. The records show that on 18 May 2004 a former girlfriend of the father’s sought advice from police in relation to his harassing phone calls.  She had no fear for her safety but wanted him to stop calling her.  Advice was given about the availability of apprehended domestic violence orders, however, she did not seek that type of assistance. Nine days later, the father’s girlfriend contacted police again, this time complaining about an abusive text message she received from him the day before and a threat he made approximately one month earlier.  Police advised her to obtain an ADVO and, with her agreement, it would seem that an interim Police ADVO was issued. 

13. Otherwise, these records contain admissions by the father in relation to the family violence incident on 20 September 2010 which involved the mother and in relation to which he was charged and an ADVO was made.  In relation to this latter incident, the father’s police statement is consistent with the evidence he gave at trial.

14. When evaluating the significance of these records, it is important to understand that the police records in their entirety were provided to Dr J and as we have already said, she accepted the father had a history of violence, acknowledged he said “some pretty nasty things” to his former girlfriend (we infer the victim referred to in the 2004 COPS events).  Dr J discussed specific issues of violence with the father and she formed the opinion he “…tended to minimise the events and his actions”.  She opined that he had characteristics in common with male perpetrators of domestic violence and, by reference to police records and child safety documents, she was satisfied he had engaged in violent and aggressive behaviour.

15. His Honour accepted the evidence given by Dr J.  Thus, although we accept his Honour may have been slightly better informed about the history had the source documents been placed before him and at least theoretically this evidence may have established the risk of exposure to family violence in the father’s care was slightly higher than as found, we are not persuaded that the provision of those documents would have affected the disposition of the proceedings.  Lest the point be misunderstood, for this evidence to have been influential to the outcome of the proceedings it needed to be persuasive of a finding that the risk of exposure to family violence in the father’s care was at least comparable to the magnitude of that risk in the mother’s care.  It could not have established an evidentiary foundation for such a finding.

16. These challenges have not been made out.

Errors of fact in relation to family violence

1. Turning then to the mother’s challenge which asserts errors of fact in relation to family violence.  Paragraph 49 of his Honour’s reasons for judgment is the focus of this challenge.  Paragraph 49 is set out below:

   During his oral testimony in the witness box on 17 March 2014 [the father] confirmed that the parties, when they were together, had scuffles where they would grab each other.  He said this occurred on three occasions.  [The father] says that both parties were at fault.  I note from exhibit 5 (notes from the New South Wales Police Service) that on 8 November 2010 in the [Town A] Local Court an apprehended violence order was granted in favour of the mother against the father.  The father, it seems, had sent some abusive text messages to the mother complaining of the mother’s multiple sexual partners since separation.  I do note that the father had complained about the mother’s behaviour in this regard to Dr [J].  I do note that the father agreed to attend an anger management counsellor in New South Wales in 2010.  Further, I note that after that date the parents became reconciled for some time.

2. As we said earlier, the ADVO which issued on 8 November 2010 concerned an incident on 20 September 2010, the details of which we set out at [12] above. The abusive text messages were sent in February 2011. Because the father was subject to the ADVO issued on 8 November 2010, as a consequence of what occurred on 4 February 2011, he was charged with having breached that ADVO. The unchallenged evidence before his Honour was that in relation to the 20 September 2010 incident the father was charged with common assault to which he entered a plea of guilty. It is uncontroversial that he also entered a plea of guilty in relation to breaching the ADVO. It follows that the mother has identified a number of factual errors. However, the question that arises is whether, as the mother says, these errors establish that his Honour’s preference for the father’s rather than her evidence in relation to the violence between them was wrong.

3. Before his Honour the father conceded behaviour which resulted in his guilty pleas on both of these occasions.  As we understand it, the 20 September 2010 incident is one of the “scuffles” to which his Honour referred in [49] and findings are also made that the abusive text messages were sent. However, in the absence of findings by the court which accepted the father’s pleas of guilty or evidence of the facts on which his pleas were based, the mere fact of conviction would not have assisted his Honour’s decision to prefer the evidence of the father rather than the mother.  So that the point is clear, the father’s evidence before his Honour established facts which justified the convictions.  That he was convicted did not require him to prefer or even consider the mother’s version of events.  It follows that the fact of the convictions would not have assisted his Honour’s determination of which of the parties was the more reliable witness. 

4. It must also be understood that his Honour was in the invidious position of being required to make orders which would govern the child’s future in circumstances where the child’s parents had such difficult pasts.  Thus, he attempted to predict the extent to which those past behaviours were probative of an ongoing risk to the child and strove to understand whether in the period following their separation, the parties’ violent behaviour ceased.  As we have already explained, there is no doubt his Honour placed very great weight on the fact that following the parties’ final separation and within months of the final hearing, the mother physically assaulted her companion.  On the other hand, the father had not been involved in ongoing violence.  There is no doubt his Honour was entitled to reach these conclusions.  Considered in this light the errors in [49] of his Honour’s reasons do not warrant appellant intervention.

Failure to appreciate the mother had good reason to withhold the child

1. The next challenge is that his Honour failed to appreciate she had good reasons for withholding the child from contact with the father.  Namely, that contact was refused because the child was sick or in response to the father knowingly giving her food to which she is allergic. 

2. The first challenge arises from his Honour’s finding at [27] that the R Contact Centre records revealed “…the mother cancelled the changeover that was supposed to take place on 11 August 2013”.  Although factually correct, the mother asserts that the contact centre records exhibited in the trial established that she agreed with the centre not to take the child if the child was ill and contain a medical certificate which shows that on 11 August 2013 the child was ill.  There are no documents of this nature in exhibit 10.  The records do no more than record the mother’s advice the child had conjunctivitis. 

3. However, medical records contained in trial exhibit 9 (ICL(2)) shows that on 8 August 2013 the child was diagnosed with bilateral conjunctivitis.  Thus although the mother may have had a good reason for not making the child available for contact on 11 August 2013, the fact that on this occasion and on 25 August 2013 when she went to work, she had good reason for her

   
   

   non-compliance is all but irrelevant.  This is because, as his Honour pointed out, the magnitude of her non-compliance and her attitude to her obligations under the orders was quite extraordinary.  The mother’s behaviour and remarks in the contact centre records to which she drew our attention more than prove the point.       

4. In a similar vein, the mother challenges his Honour’s finding at [30] “[t]here is no medical evidence at this stage to confirm that the child is allergic to berries”.  In support of her contention she relies on the unchallenged evidence the child was, on other occasions, seen to have a rash and she and the father had an epi pen to be used in the event the child suffered an allergic reaction.  Be that as it may, the medical records upon which the mother relied establish that whether or not the child is in fact allergic was still under investigation.  The point being, his Honour did not reject the possibility the child is allergic to berries but merely pointed out that the child’s medical advisors had not yet established for themselves the child suffers from the allergies the mother believes she does.

5. Nor did his Honour find that the child did not have a rash or conjunctivitis on those specific dates.  Rather, the gravamen of his Honour’s findings is that when these exhibits are read as a whole they clearly record the mother looking for reasons to stop contact.  They certainly do.  For example, the mother’s remarks to Dr Z which postulated the father’s “wilful exposure” of the child to berries and, as his Honour mentioned at [28], her attempt to have police attend the contact centre to inspect the father’s child seat.  Reference need only be made to the Y contact centre records being trial exhibits 3(2), 3(3), 3(4), 3(5), 3(6) and 3(7) to reinforce the correctness of his Honour’s finding “that the mother was looking for excuses not to attend at the [contact] centre” (at [28]).

6. These challenges have not been made out.

Weight afforded to expert opinion expressed by Dr J

1. The mother asserted to his Honour and on appeal that Dr J did not have the mother’s affidavit filed on 16 April 2013 and therefore her opinion is fatally flawed.  This issue arose because in her first report when Dr J listed the documents provided by the ICL she did not include the mother’s affidavit. 

2. Counsel for the ICL explored this issue with Dr J and the following exchanges occurred:

   All right.  I mean at this stage – I mean obviously one doesn’t know what might affect an opinion until you see it.  It would seem to be that there was some clarification required about whether you had the mother’s affidavit material; is that right?‑‑‑Yes.

   And is it correct to say that you did have the mother’s affidavit material even though it might not have been listed in your report?‑‑‑Yes, I did have the material.

   All right.  So you can assure the court that as part of your consideration of both reports you had the affidavit material of the mother?‑‑‑Yes, I did.

   Right.  And is it fair to say also that the mother displayed no reticence in the two interviews that you’ve had with her in providing, I suppose, her version of events and the facts that she wanted you to consider?‑‑‑That’s correct.

   Right.  Is there any further investigation that you say was or is necessary for you to either formulate your existing opinions or to assist the court further?‑‑‑No.  There’s no further investigations required at this point in my opinion, yes.

   (Transcript, 18 March 2014, p 170, lines 22-39)

3. This evidence went unchallenged, as a consequence of which the asserted error is not made good.

4. We have already provided an overview of Dr J’s evidence and his Honour’s approach to it.  Notwithstanding the challenge which the mother made in relation to his Honour’s decision to place significant weight on the opinions and evidence given by Dr J, there can be little doubt that she undertook a thorough investigation and her evidence withstood the attacks mounted on it.  His Honour was entitled to rely on the evidence given by Dr J in the manner he did.  This challenge is not made out.

Weight afforded to expert opinion expressed by Dr L

1. It will be recalled that Dr L diagnosed the mother as having “severe Post Traumatic Embitterment Disorder”.  It is common ground that this syndrome is not recognised by the American Psychiatric Association (DSM IV).  Thus, the mother contends that “…given the diagnosis has no medical status as such, the creditability of the diagnosis is doubtful.  Although, the credibility of Dr [L] is in no way under dispute, the status of the diagnosis should be seen to be invalid”.  Because his Honour relied upon this “invalid” diagnosis he erred.

2. Counsel for the ICL cross-examined Dr L about the aetiology of Post Traumatic Embitterment Disorder and the basis upon which he came to the view that the mother suffered from it.  These exchanges are set out below:

   [Counsel for the ICL]:   Doctor, you’ve raised the issue with the mother of this idea of Posttraumatic Embitterment Disorder.  Could you just give us a little bit more information as to what that is and how it might manifest itself in a parenting situation such as we have before the court?‑‑‑Yes.  I chose to, in the diagnostic section of the medico-legal report, highlight this concept, noting that there are a number of other diagnoses which were not evident.  I just might make that point and answer that a major depressive disorder or psychotic order, importantly are not in the history of the examination.  But there is a history of substance use and, in particular, alcohol abuse.  These issues, combined with the issues that I referred to on access [sic] 2, are a long and very sad, in my view, series of issues which, in fact, begin on page 9 of the report under the heading Access [sic] 2 and talk about experiential issues or issues that the mother has experienced through her life from her childhood, through her teenage years and, indeed, up until 2013, which have led, in my view, to this syndrome of embitterment and chronic and unresolved harshness, anger and a sense of negativity and, indeed, an attitude to other people marked by the sorts of responses that she began the assessment with me on 31 July with, regarding what I called an opposition or a difficulty with having to come along to be assessed.  So this leads then to this state of chronicity, which is unchanging, which is – this sense of injustice and being treated unfairly.  And harbouring the sorts of emotional and psychological capacity that would allow a mother to tell me that – as I said on page 11 of the report, a very good example of the duration of this embitterment – she says at line 14, in terms of a potential child that she might have produced at that time, “I just – I got rid of it”, as if it were an object or an unwanted – well, household item.  And having had the opportunity to experience not just the content of that phrase but also the way in which it was said to me at that point in the interview, highlights then the answer to your – the second part of your question, that this syndrome of self-preoccupation severely impairs, then, the mother’s capacity to take account of, be interested in, be aware of the emotions and psychological experiences of the child, in my view.  But also she struggles to get through her life and function day to day herself, because of the overwhelming nature of this particular syndrome.  Now, I use the word syndrome, because as I pointed out in appendix 3 attached to the report, this is not a diagnosis that the American Psychiatric Association have embraced.  It is over 10 years, though, in the European and British Psychiatric worlds.  And it’s one that – as I said in the report, I wanted to use as I thought the mother’s presentation – when it comes to her experiences and her drug abuse, her problems with her mother, her problems with the father, they all fit under that umbrella.  And most importantly then, when it come so the psychological therapy that’s required, it’s absolutely essential, in my view, that given the nature and severity of this syndrome, that the mother undertake appropriate, what is called and recommended as wisdom therapy.  The answer ceases there.

   (Transcript, 18 March 2014, pp 187, line 44-47, p 188, lines 1-36) 

1. In answer to a question from his Honour, Dr L explained that wisdom therapy is “…a complex process of relationship therapy, attempting to assist the person to come to terms with and move on from the issues, if you like, that they continue to doggedly live in the past about.” (Transcript, 18 March 2014, p 189, lines 39-41). It was his opinion that a psychiatrist or trained and experienced psychologist would be able to deliver wisdom therapy, albeit he went on to explain that it is possible to conceptualise the treatment model in a variety of ways.  For example, an alternative model would include prohibition of illicit drugs, abstinence from alcohol use, and therapeutic intervention from an alcohol or drug service complimented by other relationship therapy.  As we have already mentioned, his Honour accepted Dr L’s opinion and found his evidence compelling.

2. We are not persuaded that a syndrome which is recognised in Europe, the United Kingdom and has been for a decade or more ought to be disregarded merely because the American Psychiatric Society does not include it in their diagnostic manual.  Without more, that proposition could not establish error.  In this case, there was no evidence which contradicted that given by Dr L on the point and, indeed, Dr J agreed with it.  It follows his Honour was entitled to give Dr L’s evidence the weight he afforded to it.

3. This challenge must fail.

Failure to consider the mother was expecting a child

1. The essence of this challenge is that the primary judge should have taken into account that the mother was expecting a child and therefore a sibling to the subject child.  True it is that his Honour made no mention of that fact and it is appropriate for us to proceed on the basis that the fact that the mother was pregnant was not significant to the ultimate determination.  However, other than to assert the error the mother was unable to explain how his Honour’s failure to consider the possibility the subject child may have a sibling to the mother might sound in error.  The sibling was not yet born and it could have involved nothing more than speculation to allow the child’s relationship with her unborn sibling to materially influence the outcome of the proceedings.  We are not persuaded that his Honour erred.

2. The mother has failed to establish a ground for appellate intervention.  Accordingly, her application to adduce further evidence in the appeal must be considered.

Application to adduce further evidence

1. The further evidence which the mother sought to introduce may be categorised as evidence which:

   ·was in evidence before his Honour but afforded little weight;

   ·included steps taken by her to give effect to his Honour’s orders she engage in therapy and the like;

   ·included evidence of communications with the father which she argued showed he created difficulties for her spending time with the child;

   ·included evidence the child complained she was hungry and inadequately cared for;

   ·included Suburb X Hospital records of the mother’s attendance in 2011 and June 2012 in which, in particular, demonstrated the consistency of her evidence about violence with the father;

   ·included a Risk of Harm assessment undertaken by the Department of Child Safety in October 2012 and related documents; and

   ·included a photograph of the mother said to have been taken on 26 February 2012 and showing she had bruising to her right eye socket.

2. The purpose of seeking to adduce this further evidence was to establish the evidentiary foundation to set aside the orders and to enable this court to re-exercise his Honour’s discretion.  We explained to the mother that the contentious nature of all but the first two categories of her evidence made it appropriate for that type of evidence to be considered at trial and not taken on appeal.  Hence, she relied on the evidence to impugn the orders.

3. We will deal with each of the categories of evidence in turn.  It is

   
   

   self-evident that there is no utility in the admission of evidence on appeal if that evidence was placed before the trial judge. 

4. We do not accept that the evidence which shows the mother has taken steps to comply with his Honour’s orders in relation to therapy and the like could in some unspecified fashion establish error by the primary judge or impugn his orders.  Accordingly, the evidence referred to at [3] and [5] of the mother’s affidavit will not be admitted.

5. With respect to the communications between the parties and the asserted difficulties the father has created for the mother, that evidence does little more than demonstrate there are ongoing communication difficulties between them.  It does not establish the point sought to be made and will not be admitted.

6. The evidence about the child’s complaints in her father’s care and the mother’s dissatisfaction with the child’s presentation is not of such seriousness that it could impugn the correctness of his Honour’s orders or justify a rehearing.

7. The same conclusions must be reached in relation to the remaining documents.  This evidence was available or could have been obtained and presented to his Honour.  However, we are not persuaded that the further evidence if tendered before the primary judge was likely to have produced a different result.  The fact that the mother may have been able to establish that the father fell behind in the payment of child support, that she attempted to mediate the parenting dispute but the father was uncooperative and hospital records confirm she suffered bruising in the June 2012 motor vehicle incident, would not have altered the manner in which his Honour exercised his discretion.  As we said already, his Honour knew the mother was bruised.  The Queensland departmental records are based on interviews with the mother and did not include the father.  Although these records establish that the mother was advised to act protectively with the child and keep her safe from the father, there is nothing in them which suggests she was advised not to comply with orders for contact.  And it is the later scenario that so troubled his Honour. 

8. It will be recalled the father did not deny the mother was injured in the February 2012 incident and agreed she may have been.  Although the photograph may have established she was injured, the mother provides no explanation for her failure to produce the photograph at trial.  We accept this photograph may have assisted his Honour to have a slightly better appreciation of the detail of the violence which occurred between the parties.  However, he undoubtedly considered that the violence was serious and the child needed protection from it.  As we have already explained, his Honour gave greater weight to the comparative ongoing risk to the child of exposure to family violence in the mother’s care compared to the magnitude of that risk if she lived with the father.  The introduction of this evidence would not have elevated magnitude of the risk in the father’s care to anything like the magnitude of risk as found in the mother’s care.

9. Accordingly, the mother’s application to adduce further evidence in the appeal will be dismissed.

10. Thus the appeal will be dismissed.

11. Neither the ICL nor the father seeks an order for costs. 

I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

(Ainslie-Wallace, Ryan & Tree JJ) delivered on 11 December 2015.

Associate:

Date: 11 December 2015