WERTH & PACAPELLI - [2018] FamCAFC 106

FAMILY COURT OF AUSTRALIA

WERTH & PACAPELLI

[2018] FamCAFC 106

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence on the appeal – where the further evidence contained opinions expressed by psychologists as to the mental health of one of the three subject children – where the subject evidence was highly contentious and was produced without any input from the father – where the opinions stated by the psychologists provided no elaboration of the criteria used to form such opinions – where the expert family report writer provided her evaluation having had the benefit of being briefed by the ICL, reviewing all relevant documents and interviewing the father, the mother and each of the children – where the mother’s further evidence, if accepted, would not demonstrate that the order under appeal was erroneous or would have produced a different result if it had been available at the trial – application to adduce further evidence dismissed.

FAMILY LAW – APPEAL – PARENTING – where the mother contended that the trial judge placed insufficient weight on evidence indicating that one of the subject children suffered separation anxiety from the mother – where the mother’s oral evidence at trial and the evidence of the subject child provided to the family report writer identified numerous factors contributing to his depressive state and anxiety – where the expert family report writer, whilst noting significant problems with respect to the child’s mental health, did not identify separation anxiety from the mother as an issue – where the child expressed a desire to live with the father – where challenge as to the weight given in a discretionary judgment can only succeed when the appellate court is satisfied that the trial judge was plainly wrong – where the trial judge concluded that there was no probative evidence to support the mother’s propositions – where the mother criticised the trial judge and the ICL for failing to undertake further enquiries into the issue of separation anxiety – where the ICL does not have a duty to investigate and present the case for one of the parties and the Court is not equipped to conduct inquisitorial proceedings – where the trial judge’s path of reasoning to his conclusion was readily discernible from the reasons for judgment – appeal dismissed – mother to pay father’s costs fixed in the sum of $11,169.

Family Law Act 1975 (Cth) ss 60CA, 64B, 65D, 65DAC, 68L, 93A(2)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Corwin & Corwin [2018] FamCAFC 83
De Winter v De Winter (1979) 23 ALR 211
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
T and S (2001) FLC 93-086; [2001] FamCA 1147

APPELLANT:

Ms Werth

RESPONDENT:	Mr Pacapelli
INDEPENDENT CHILDREN’S LAWYER:	Susan Gray, Susan Gray Solicitor

FILE NUMBER:

CSC

349

2016

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

7 June 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

12 March 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 October 2017

LOWER COURT MNC:

[2017] FCCA 2533

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Carmody

SOLICITOR FOR THE APPELLANT:

Slater & Gordon – North Lakes

COUNSEL FOR THE RESPONDENT:

Mr Victoire (via video link)

SOLICITOR FOR THE RESPONDENT:

Lanza Legal (via video link)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Lawrence (via video link)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Gray (via telephone)

Orders

The mother’s Application in an Appeal to adduce further evidence filed on 21 February 2018 is dismissed.
The mother’s appeal from the orders made by Judge Jarrett on 19 October 2017 is dismissed.
The mother pay the father’s costs of and incidental to the appeal proceedings, including of the Application in an Appeal filed on 21 February 2018, in the fixed sum of $11,169 on a party and party basis within ninety (90) days of the date of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 64 of 2017
File Number: CSC 349 of 2016

Ms Werth

Appellant

And

Mr Pacapelli

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 19 October 2017, following a two day trial conducted in September 2017, Judge Jarrett made parenting orders[1] determining the competing applications of Mr Pacapelli (“the father”), Ms Werth (“the mother”) and the lawyer appointed[2] to independently represent the subject children’s interests in the proceedings (“the ICL”), concerning the children D (born 2006 and then aged 11 years); E (born 2008 and then aged 9 years); and F (born 2009 and then aged 8 years).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[2] Pursuant to s 68L of the Act.
The effect of the orders made was, in summary:
·That the father and mother have equal shared parental responsibility for the children;
·That if the mother elected to remain living in City N, New South Wales (to where she had unilaterally relocated from City Q, Far North Queensland with the children in June 2016) the children were to live with the father in City Q commencing 22 December 2017 and spend block holiday time with the mother in City N for one week in each of the March, June/July and September school holiday periods and half of the December/January school holidays; and
·That if the mother returned to live in City Q the children would spend time with each parent in a week about arrangement.
The orders as made were consistent with the proposed orders sought by the ICL and by the father, and were also supported by the older two children’s biological parent, one Mr R. The father had, in the proceedings, sought to have the children returned to live in City Q where he and the mother had lived since their relationship commenced in early 2008. The mother had acted unilaterally to relocate the children to City N in June 2016.
For her part the mother had proposed that the children continue to live with her in City N. She proposed that the children spend school holiday time with the father if he continued to live in City Q albeit that her proposal differentiated between the youngest child, F (who is the father’s biological child) and the older two children, the biological children of Mr R. In summary, the mother proposed that if the father moved to live in City N, the youngest child F would spend equal time with each parent, whilst the older two children would spend alternate weekends with the father.
Other than the order for the parents to have equal shared parental responsibility, the mother appeals from the orders made. Each of the father and the ICL oppose the mother’s appeal. The appeal is heard by me as a single judge pursuant to s 94AAA(3) of the Act.

Mother’s challenges on appeal

Whilst the trial judge had to determine parenting orders in the best interests of all three children the subject of the proceedings, as will be seen the focal point of the mother’s appeal, and of her Application in an Appeal to adduce further evidence pursuant to s 93A(2) of the Act, is upon the child, E. That is, against the apparent acceptance that it meets the best interests of all three of these children that they not be separated, the mother’s focus is upon demonstrating error with respect to the child, E. Her case in this respect is, in summary, that E suffers serious mental health issues the product of separation anxiety, as regards the mother, and the trial judge made errors with respect to this issue.
Relevant to the emphasis the mother seeks, on appeal, to place on the possible effects upon the child, E, of his separation from the mother, as will be further discussed, the orders provided for the children to live in a week about arrangement with each party if the mother resolved to live in City Q. Pursuant to the orders, the children commenced living with the father in City Q in December 2017. As at the hearing of this appeal, the mother had not relocated from City N to City Q nor was there any suggestion by the mother of any intention on her part to do so.
The mother’s Summary of Argument abandoned Ground 3 as expressed in her Amended Notice of Appeal filed on 2 February 2018. Her remaining grounds are as follows:
1.The learned trial judge failed to place sufficient weight on a relevant consideration, namely the effect on the child, [child E] born [March 2008], of removing him from his Mother’s primary care.
2.The learned trial judge erred on the facts by speculating (notwithstanding his disclaimer) as to the reasons for [child E’s] separation anxiety.
…
4. The learned trial judge’s decision is plainly wrong.
5. The learned trial judge failed to provide adequate reasons.
In support of these challenges, the mother seeks to adduce further evidence on appeal pursuant to s 93A(2) of the Act by an Application in an Appeal filed on 21 February 2018 with supporting affidavits. This application was opposed by each of the father and the ICL. Each party, respectively, addressed their arguments concerning this application concurrently with their arguments on the appeal itself.

Relevant factual context

The following summary of facts is extracted from the reasons of the trial judge.
The mother has five children to three different fathers. The oldest two being Mr A born in 1998 (aged 19 years at trial) and Ms B born in 2000 (aged 17 years at trial) who were not the subject of these proceedings. Their father is one Mr S. As at trial, Mr A was living independently in City Q as was Ms B, although she spent most evenings with the father. Mr A was expected to relocate to City N by the time of judgment and Ms B was expected to relocate to Victoria in April 2018.
As already noted, Mr R is the biological father of child D and child E. Mr R gave evidence at trial and ultimately supported the orders sought by the father.
The father has another child, C aged about 14 years. Child C is described as profoundly disabled. Child C lives with his mother in City Q but spends each alternate weekend with the father.
The father and mother commenced a relationship in City Q in early 2008. At that stage Mr A was aged about 10 years; Ms B eight years and child D was a little over one year. It seems uncontentious that the biological fathers of those children, and child E, have had very limited involvement in the lives of those children and, conversely, the father in these proceedings has had very significant involvement. The father’s son C was aged about four years when the parties’ relationship commenced. Child E and child F were born after the relationship commenced.
The father and mother married in June 2012. They purchased a home in City Q in 2012.
In late 2013 the mother commenced working as a safety manager in City N on a fly-in fly-out basis. The father was the main carer for the children from then until about November 2014.
The parties separated under the one roof in December 2014. In February 2015 the mother took a ten day holiday to Country X leaving the children in the father’s care in City Q.
In April 2015 the mother commenced working in City N again and would be away from City Q for up to two months at a time during which periods the children were cared for by the father with the assistance of members of his family.
The mother returned full time to City Q in about October 2015 after her work in City N came to an end. She obtained work in City Q. By that time she had commenced a relationship with her present partner, Mr T.
In February 2016 the father vacated the former matrimonial home and took up rental accommodation in City Q. Child F commenced spending time with him for three nights on alternate weekends which soon increased to four nights. Child E and child D spent less time with the father at the mother’s insistence on the basis, remarkably, that the father was not their biological father.
In April 2016 it was agreed that child F should live week about between the respective households of the father and the mother, and child E and child D were to spend two nights at the father’s home each alternate weekend.
On 8 June 2016 child F went to school and without the father’s knowledge the mother removed child F from school and travelled to City N with all three of the subject children. The mother had engaged Mr A in creating a deception so as to prevent the father from realising that the mother had removed child F from school and had gone to City N.
Upon her relocation to City N the mother took up temporary residence with her father and step-mother but in October 2016 organised more permanent accommodation. She commenced full-time employment in City N working as a health, safety and environment adviser, a position in which she continued as at trial.
In September 2016 child F, child E and child D spent school holiday time with the father and they also spent from 26 December 2016 until 24 January 2017, and part of July 2017, in the father’s care over their school holiday break. As already noted, the trial of the parenting proceedings was heard in September 2017.

Determination of the trial judge

The trial judge recorded numerous findings critical of the mother’s evidence about significant issues in the case together with his Honour’s preference of the evidence of the father to that of the mother with respect to those issues (for example, at [18] – [19], [24], [26] – [28], [31] – [32], [39] – [40], [53] and [70]).
Indeed at [53] the trial judge recorded, with respect to the mother, in relation to a particular issue:
…I reject her claims about that. Her evidence about this matter is an example of the embellishment which, in my view, infects most of [the mother’s] evidence in this case.
Taken from the reasons of the trial judge, the following findings can be seen as central to his Honour’s ultimate conclusion as to the parenting orders to be made in the best interests of the subject children:
a)That living with the father in City Q offered the best prospect of child D’s and child E’s relationship with their biological father Mr R being promoted ([15]);
b)That the children will benefit from maintaining a meaningful relationship with both the father and the mother ([59] – [61] and [98]);
c)When they lived in City Q, the children had regular and frequent contact with the father’s parents, and the father’s parents represent an important relationship to each of the children ([70]);
d)The children’s relationship with their mother has been punctuated by significant absences by her from their lives; from 2013 onwards she absented herself regularly leaving the children in the father’s care and even when she was physically present in City Q she was not emotionally available to the children ([71] – [72]);
e)There “is”, that is at the time of trial, no probative evidence to support the proposition that the child, E suffers from anxiety at being separated from the father or from being separated from the mother ([75] – [78]);
f)There is a real issue concerning the mother’s attitude towards her responsibilities as a parent, given the arrangements she made for her older children, Mr A and Ms B when the mother left City Q for City N in June 2016 ([83] and [87]);
g)Wherever the children live, each of the father and mother will ensure child E’s needs are attended to and they will ensure his access to appropriate care and treatment for his mental state; appropriate specialists and services being available in City Q ([88]);
h)There is a more realistic prospect of the mother returning to live in City Q than of the father moving to live in City N ([89] – [92]);
i)It is in the best interests of the children for the father and the mother to have equal shared parental responsibility for them ([93] – [94]);
j)The children’s broader relationships with members of their extended family lie in City Q; they have significant social networks with the father’s family and their own peers in City Q where they have lived their lives; and living in City Q represents a far more stable option for these children than living in City N ([95] – [96]);
k)The father represents the more reliable parent for these children given the history of their care; the mother’s parenting style is likely to be more problematic for the children than that of the father; and the mother withdraws from the children and household at times leaving the care of the children to others ([71] – [72] and [97]);
l)It is more likely that the children’s emotional needs will be met by them living with the father in City Q than by them living with the mother in City N ([98]); and
m)It is likely that the children will have greater support available to them in City Q through their relationships with the father and their extended family in City Q ([99]).
Notably, on this appeal, other than with respect to the trial judge’s findings concerning child E and separation anxiety, there is no challenge to any of the other central findings informing the conclusion of the trial judge as identified.

The mother’s Application in an Appeal to adduce further evidence on appeal

The mother represented herself at trial, a matter which her counsel sought to emphasise on appeal in conjunction with counsel’s submissions concerning the mother’s application to adduce further evidence on appeal, together with submissions as to the asserted errors of the trial judge contended for, and the somewhat strident criticisms of the role played by the ICL, as will be further discussed.
It is important to note, then, that the reasons for judgment record (at [50]) that it was as early as July 2016, more than twelve months prior to the trial, that the Federal Circuit Court “commenced” making orders for the mother to file material “to set out, and support, her case”. Moreover, the trial transcript reflects that at the outset of the trial, the trial judge was at some pains to carefully explain that the orders to be made by his Honour in the children’s best interests would be based only upon the evidence before the Court; and his Honour carefully explained the three forms that evidence could take, namely, affidavits of witnesses relied upon; oral evidence given at trial; and documents admitted as exhibits.
That explanation was given in the context of each party having filed, in advance of the trial, a Case Outline document setting out the affidavits and documents each party intended to rely upon at trial. The mother was thus appraised of the fact that the only document relied upon by the ICL at trial was the single expert report of the psychologist, Ms H, who had prepared a family report for the purpose of the trial. The trial judge’s explanation included confirmation being sought and obtained from each party, as to the documents each party relied upon for the purpose of the trial. The mother expressed her understanding of that explanation; and confirmed to the Court the documents she sought to rely upon.[3]
[3] Transcript of proceedings, 20 September 2017, pp 2 – 10.

As child E, and his mental health, is the specific focus of the mother’s complaints on appeal, and of her application to adduce further evidence on appeal, it is necessary to outline at least some of the evidence concerning this aspect of the case in more detail.
Admitted as an exhibit in the trial was a letter authored by one Ms W, clinical psychologist, from the single occasion upon which she assessed child E on 14 December 2016. As at that date child E had been living with the mother and the other children in City N since their relocation from City Q by the mother in June 2016. The letter is dated 19 December 2016 and its relevant content is set out in full in the reasons of the trial judge at [79] and reads as follows:
To whom it may concern,
I saw [child E] for an assessment this week for the purpose of participating in our research study “Side by Side” which is a treatment program for children with Oppositional Defiant Disorder. I was quite troubled during my assessment of [child E] because of the severity of depressive symptoms he displayed. In particular, his admission that he had thoughts of harming himself in the last 2 weeks and had thoughts about how he would do this. Unfortunately he would not disclose to me any more details. In addition to his depressed mood, [child E] also displayed very high levels of anxiety. I strongly recommended to [Ms Werth], his mother that she take him to either the local community mental health team to be assessed or a private clinical psychologist. I have given her a list of possible referrals for her that are in her area.
Self-evidently, the letter is in summary form and cannot reasonably be described as a report. It contains no particulars of the actual data assessed by the author, including any particulars as to what the mother, or the child himself, actually related to the therapist. That is in the context of the therapist spending some 65 minutes with child E and, significantly, more than two hours with the mother. The letter records that the child would not disclose to the therapist the further details she sought as to his depressed mood; and ultimately a referral was made. Notably, the letter records nothing about any assessed cause of the child’s recorded display of “very high levels of anxiety”. It is uncontentious that the father had no input into this assessment and, despite a further affidavit from this therapist sought to be adduced by the mother as part of the further evidence the subject of her application, the actual data assessed by this therapist on this single occasion on which she assessed child E; or the means by which the therapist reached the opinions recorded in her letter, remains unknown.
Whilst, as noted, the mother seeks to emphasise on appeal the issue of “separation anxiety”, that is, that separation of child E from the mother is the cause of, or substantially contributes to, child E’s anxiety, it is apparent from the oral evidence the mother gave at trial that many issues, quite apart from his separation from the mother, were apparently troubling for child E and contributing to his levels of anxiety as exhibited as at the time of the December 2016 assessment referred to. There was at trial these exchanges during the mother’s cross-examination by counsel for the ICL[4]:
[4] Transcript of proceedings, 20 September 2017, p 83 ln 1 to p 84 ln 7.
Did you speak to [child E] around the time that you saw the clinical psychologist from [City N University]? Did you speak to [child E] about his thoughts of self-harm?---Yes, I did.
And what was the conversation?---He said that he is just really, really worried and he doesn’t know what to do and sometimes he feels like things are his fault and he feels that he’s stupid and can’t do his work at school. A lot of his issues were in relation to school and not being able to complete his work and not knowing what was happening with when he was going to be, you know, going backwards and forwards to – with seeing [the father]. He was a bit concerned about – that he would be taken away from me. As the psychologist had said he had quite severe separation anxiety from me due to working away, in the conversations I’ve had with her.
So who’s this? Which psychologist is that?---The first one. In the conversation we had after the – his assessment. Prior to this letter, we had quite a lengthy conversation as to everything that [child E] had spoken to her about. That was the text message I had sent to [the father] to give him the information that she had told me. And that was prior to receiving the report that you have in your hand.
Did you involve [the father] in the – any of the discussions with the [City N University] clinical psychologist?---No, that wasn’t requested.
I’m going to hand you a copy of the letter from [Ms W], the clinical psychologist from [City N University], dated 19 December 2016. Is that a copy of the report you’ve been talking about?---Yes.
I tender that, your Honour.
HIS HONOUR: All right. That will be exhibit 1.
EXHIBIT #1 LETTER FROM [MS W], CLINICAL PSYCHOLOGIST FROM [CITY N UNIVERSITY] DATED 19/12/2016
[COUNSEL FOR THE ICL]: You mentioned previously in your evidence that [child E] felt that, at the time that he was seeing – well, that he saw the clinical psychologist at [City N University] that things were his fault. Did he expand on that?---Not really. He was – he said some of the arguments – he thought some of the arguments between myself and [the father] were because he was badly behaved. And the – him being suspended from school was causing issues and those kind of things. So we – yes, that was what he thought were things that he was causing.
What about blame in relation to you moving with the children to [City N] from [City Q]?---No.
So he ‑ ‑ ‑?---It wasn’t something he ‑ ‑ ‑
He didn’t mention that?---No.
And you say that the separation anxiety was separation anxiety that he had from you?---Correct.
And you accept, though, that the letter from the [City N University] clinical psychologist doesn’t mention separation anxiety, does it?---No. But the conversations did, with her.
It is to be kept in mind that as at December 2016 when this assessment took place, more than a year had elapsed since October 2015 when the mother’s work in City N came to an end. Prior to that the mother had been leaving the then home in City Q to attend to her work in City N. Thus more than twelve months had elapsed since that had been child E’s experience. Moreover, the reference to child E being “a bit concerned about – that he would be taken away from me” by the mother assumes some significance when regard is had to the content of the family report and that expert’s interview of child E.
It was only some 13 days after this assessment of child E by Ms W on 14 December 2016, that interviews were conducted by the single expert psychologist, Ms H for the purpose of her detailed family report. Those interviews took place on 27 December 2016. For the purpose of her assessment, Ms H had the benefit of being briefed by the ICL not only about the issues in the case but also with relevant documents, including then existing affidavits of both the father and the mother and of course Ms H could rely upon her interviews with each of the father and the mother, as well as with each of the children. Ms H’s report records, in relation to her interview with child E, the following relevant information:
51.Developmentally, [child E] presented as having some mental health issues. The parents both reported independently that [child E] had trouble at school in [City Q] and was suspended on a couple of occasions.
52.When asked who he would like to come to the hospital he not only stated his immediate family, but also added ‘[Uncle J] and [Uncle K]’. [child E] also added “and my dad…” and went on to state, “I saw my read [sic] dad a couple of years ago and last time he tried to take me. He tried to keep me on the [Queensland Coast]. He talked to me about it.” When asked the Mother stated that this had not happened to [child E], but had happened to [Mr A] when he was four (4) years old, well before [child E] was born.
53.When asked to describe his likes and dislikes with [the father] (who he calls ‘[Dad-P]’) and with his Mother, [child E] stated he likes “that [Dad-P] is funny, payful [sic], likes going places, but doesn’t like it when he is upset and grumpy”. [child E] stated he likes that his Mother “buys things for us, and is always happy, well kind of”. [Child E] couldn’t think of what he didn’t like about his Mother’s home.
54.When asked, [child E] stated he would most like to live with [Dad‑P] “cause I haven’t seen him for a long time and I miss him.”
55.Both parents brought up concerns regarding [child E]. The Father stated that at [City Q State School] “they made special arrangements” for [child E] as they thought he had “borderline ADHD”. The Father reported, “[Ms Werth] doesn’t think [child E] can get help here, but he can.” Apparently [child E] had been seen by [Dr L] and the [City Q Hospital], who ruled out ADHD. The Mother stated, “[Mr Pacapelli] wasn’t able to take him to appointments”. However, once relocated to [City N] [child E] saw a psychologist, [Ms W] at [City N University] who diagnosed [child E] with anxiety and depression and having suicidal thoughts. The Father stated that the Mother had advised him that [child E] was diagnosed with “severe separation anxiety” as well has [sic] having depression and suicidal thoughts. The Mother advised that [child E] will have a one on one teacher aid in [City N] as well as starting the ‘Cool Kids’ program (a cognitive behavioural therapy program available to children throughout Australia).
56.In summary, in observation [child E] presented as being well attached to both his step-father, ‘[Dad-P]’ and to his Mother. [Child E] does seem to have his life-story confused with his brother’s. This does indicate that [child E] perhaps overhears or is told about issues that would be better if he does not know about.
Undoubtedly, the single expert identified that child E had some troubling difficulties. The “evaluation” section of her report includes this:
94.Should the Father’s proposal be accepted, [child E] would require specialist psychological and educational treatment, something that is highly available in [City Q] and which, in this Family Consultant’s opinion should have been done when [child E] was attending [City Q State School]. [Ms Werth’s] allegation that the type of assistance for [child E] was not available in [City Q] is certainly not the case.
Moreover, in the course of her oral evidence at trial, there were these exchanges between counsel for the father and the expert[5]:
[5] Transcript of proceedings, 20 September 2017, p 123 ln 39 to p 124 ln 18.
In your report at paragraph 55, you refer to the – the mother, I think, told you that [child E] had seen a psychologist at [City N University]?---Yes.
Who had diagnosed [child E] with anxiety and depression and having suicidal thoughts?---Yes.
Did you have any concerns about [child E], having seen him that day?---I did have concerns about him. I think there’s – he seemed to appear to me to be more than just an – a kid with ADHD or having a kid who had anxiety. There seems to – what I saw of him, there seemed to be a deeper – a deeper thing that may have been an organic mental health disorder. Many health – many mental health disorders are genetically taken up and – yes, there seemed to be more to his mental health difficulty than simply a – a child with oppositional defiant disorder or hyperactivity or even just plain anxiety. I’m not a psychiatrist but if he had been my clinical client, I would have sent him to a psychiatrist immediately.
And on that occasion, at paragraph 54, you say that [child E] stated:
He would most like to live with [Dad-P] because, “I haven’t seen him for a long time and I miss him.”
?---Yes.
You had no reservation about the relationship between [child E] and his father?---None whatsoever. My recollection, and I didn’t write it down before, my recollection is that when [child E] saw [Dad-P], he ran to him and jumped up into his arms, and so it – it was quite clear that he wanted to see him.
By no means should child E’s mental health disorder or difficulties, as identified by this expert, be minimised or dismissed. But a reading of this expert’s report and taking into account the expert’s oral evidence, confirms that child E was, in one instance, relating to the expert the lived experience of his half-sibling rather than his own, and at no point did child E impart to this expert anything at all about separation from his mother or anxiety concerning separation from his mother. To the contrary, child E observably wanted to see the father and expressed to the expert a desire to live with the father.
It bears repeating that unlike Ms W, the single expert had the benefit of a full briefing by the ICL and interviews with all concerned parties and was not reliant only upon any history provided by the mother. The single expert’s report exposes the particulars as to what she was told by the child, as well as the relevant content of interviews with each parent. These matters assume greater significance when it is kept in mind that the trial judge made the findings he did with respect to the mother’s credibility as a witness and her capacity for “embellishment”.
The mother seeks to adduce as further evidence on appeal an affidavit of Ms W attaching a further letter concerning her consultation with child E and the mother on 14 December 2016. That is, there has been no further consultation. In summary, the affidavit and letter contains this therapist’s opinion (in contrast to her letter dated 19 December 2016) to the effect, in summary, that a “significant portion” of child E’s anxiety, as he presented on 14 December 2016, “appeared to be linked to fears of being “stolen” from [presumably by] strangers and being separated from his mother”. Ms W does not explain why this was omitted from her earlier letter, but more significantly, she again does not particularise any data or criteria relied upon for her opinion. Curiously, as it seems to me, Ms W was not furnished, for the purpose of providing her further opinion, with the report and transcript of oral evidence of the single expert at trial, Ms H.
In addition to this evidence of Ms W, the mother seeks to adduce by way of further evidence on appeal an affidavit of Ms Y, clinical psychologist, and her attached report expressing similar opinions concerning child E’s anxiety and, specifically, separation anxiety concerning his mother. Relevantly, Ms Y’s affidavit includes this:
4.[Child E] relocated from [City Q] to [City N] with his mother and siblings in mid-2016 which understandably has involved adjustment to major changes. [Child E] has continued to experience difficulty coping with change (eg. new teachers at before and after school care), which triggers anxiety/panic symptoms and oppositional behaviour (eg. not following instructions, walking away).
5.Throughout 2017 [child E] made good progress learning to manage his anxiety, mood and behaviour using cognitive behavioural strategies such as coping self-talk (eg. “Relax and make a good choice”), relaxation strategies (eg. slow breathing), and learning to calm down and respond rationally rather than react impulsively when experiencing anger.
6.In 2017 [child E] had adjusted and settled well into his new primary school, home and community. I have consistently observed that a strong protective factor is [child E’s] close bond and loving relationship with his mother [Ms Werth] who is focused on [child E’s] emotional well-being and proactive about positive intervention.
It can be seen that the affidavit of this witness, similarly to the opinions of Ms W, states a series of conclusions with little or nothing in the way of elucidation of the data or criteria applied to reach the opinions expressed.
The mother gave evidence at trial about the engagement of child E with Ms Y. In the course of cross-examination of the mother by counsel for the ICL there were these exchanges[6]:
[6] Transcript of proceedings, 20 September 2017, p 82 ln 14 – 46.
[COUNSEL FOR THE ICL]: So how long after the clinical psychologist at [City N University] … saw him – how long after that did he go and see another allied professional for his mental health issues?---I couldn’t give an exact date without having a chat to his psychologist. We went to the doctor who gave us a referral and we booked him in. It was probably approximately four to six weeks after that and exploring different avenues on how we could get assistance for [child E] with the school counsellor. And I contacted the mental health team at the hospital and it was about six weeks, I think, until he actually went in and started seeing, regularly, that psychologist.
How regularly was he seeing the psychologist once he first saw her?---Every two weeks.
Okay. Does he still see her?---Yes, he does.
And do you have any documentation from her?---No, I don’t.
Who is the psychologist he’s seeing at the moment?---[Ms Y].
Okay. And where is she?---In New South Wales. She has two different locations that she operates out of. One at [Suburb G] and one at [Suburb I].
And which one do you take [child E] to?---We’ve attended at both but, generally, [Suburb I]. It’s closer to home.
And what does she – what are her professional qualifications? What does she call herself?---I believe she’s a psychologist.
And what feedback has she given you recently about [child E], if any?‑‑‑That she has seen a dramatic improvement in him. Her – she communicates with the school counsellor as well that he also still sees. He’s had no issues at school. In discussions with the school counsellor, she said that the school now say he is a model student and he is doing really well.
One troubling aspect of the mother’s oral evidence at trial, given on 20 September 2017, is the impression created from it that child E commenced regular consultations with Ms Y which were continuing as at trial. Likewise, it must be observed, Ms Y’s assertion in her affidavit sworn on 6 February 2018 that child E “has been attending therapy on a regular basis since March 2017…” is apt to mislead. As counsel for the father emphasised in his submissions opposing the application, an emphasis which was without demur from the mother, reference to the mother’s Medicare documents attached to her affidavit filed on 29 November 2017 (first filed in support of the mother’s unsuccessful application for a stay of the orders) demonstrates that there has been a total of only four consultations between child E and this therapist, being on 10 April 2017, 28 April 2017, 9 June 2017 and 21 July 2017. As at trial, child E had not seen this therapist for some two months and there had only been a total of four consultations.
In Lane & Nichols (2016) FLC 93-750 (“Lane & Nichols”) the Full Court discussed (at [38] – [45]), with reference to authority, questions about the admissibility of, and alternatively the weight which can legitimately be placed upon, conclusions or opinions expressed in the form of the subject opinions of Ms W and Ms Y.
Beyond the opinions referred to, the mother also seeks to adduce as further evidence on appeal, a series of text messages from child E post-dating December 2017 constituting requests by child E of his mother to “book flights” and stating “I want to come back”; together with the affidavit material the mother relied upon (including those of her family members) filed in support of her unsuccessful application for a stay of the subject orders.
In her submissions in support of this Court receiving as further evidence on appeal the opinions of Ms W and Ms Y referred to, counsel for the mother acknowledged that the evidence was contentious and that in accordance with CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) the mother faced “a fairly high test”.

However, counsel for the mother contended, in relation to the test to be applied, that it was not necessary for this Court to conclude that this evidence, if admitted, “definitely would have affected and there would have been a different … decision by the Court”. Counsel submitted that the subject evidence could be tested at a rehearing, and it might be rejected, but that:
…when it is such a critical issue, it needs to be explored properly. And it may be that the father affords the opportunity to obtain other experts. It may be that the father wishes to attend upon [Ms Y] and [Ms W] to give his input. And all of those things are perfectly appropriate. And then, at a rehearing, the evidence is tested as it should be tested when you’re dealing with this kind of case.
Counsel for the mother submitted that the test to be applied to the admission of further evidence on appeal, was that stated by Gaudron J in CDJ at [65] as follows:
…the more pertinent question is not whether the evidence would have produced a different result at the trial but whether, having regard to that further evidence, there is a real risk that the order under appeal is not in the child’s best interests. If there is no risk of that kind, then there is no reason to interfere with the order. On the other hand, if there is such a risk, there is good reason why the order should not stand.
As to that stated test counsel submitted:
It doesn’t have to be a proven risk. It has to be a risk that could be subjected to cross-examination and may not be afforded the weight that the appellant proposes. But if there’s a risk, a real risk, then that should be explored.
When it was suggested by the Court to counsel for the mother that the test proposed by Gaudron J in CDJ was not the test adopted by the plurality (McHugh, Gummow and Callinan JJ), counsel contended that Gaudron J’s proposed test as stated was adopted by the plurality.
I do not accept counsel’s submission in this respect and her approach informs not only the submissions advanced in support of the application to adduce further evidence on appeal, but also in some respects concerning the arguments on the appeal itself.
That the plurality did not adopt the test proposed by Gaudron J at [65] quoted above is apparent from a number of statements of the plurality including these (appearing within [148] – [151]):
148.Indeed, even if the Full Court had been correct in concluding that the trial before Baker J had exhibited the three “unsatisfactory elements” to which their Honours referred, we would not accept that it was open to the Full Court to exercise its discretion on the basis that a new trial could nor might result in a different order. After all, neither individually nor collectively did those features constitute appealable error. The power conferred by s 93A(2) is not a solvent to correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
149.…[t]he proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband’s application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing…
…
151.Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child…
Given my rejection of counsel’s submission as to the applicable test to be applied for the exercise of discretion under s 93A(2), I will here restate the summary of applicable principles derived from the plurality judgment in CDJ as stated by me recently.[7]
[7]Corwin & Corwin [2018] FamCAFC 83 at [46] – [48].
Section 93A(2) of the Act provides for the discretion for the Court to receive further evidence in an appeal upon questions of fact.
The following principles emerge from the judgment of the plurality of the High Court (McHugh, Gummow and Callinan JJ) in CDJ as to the power conferred by s 93A(2) of the Act for this Court to receive further evidence on appeal upon questions of fact, and as to the exercise of the discretion involved in the exercise of that power:
a)The purpose of the power conferred by s 93A(2) to admit further evidence is to ensure that the proceedings do not miscarry. Factors such as the need for finality in litigation, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion ([104]);
b)Section 93A(2) is remedial. Its principal purpose is to give a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous ([109]);
c)Section 93A(2) should not be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. The power to admit further evidence exists to serve the demands of justice. The discretion is not so wide that the Full Court can admit further evidence merely because it is useful. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial ([111] and [113]);
d)Further evidence which is not in dispute, and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings reheard will readily be admitted, particularly if the evidence relates to events occurring after trial. In this context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration, rather than what effect the evidence would have had on the trial judge’s decision ([114]);
e)Failure to have adduced the evidence before the trial judge will be a variable factor in the exercise of discretion, the weight given to it being dependent on other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily against admission ([116]).
With respect to parenting orders and parenting cases, the judgment of the plurality of the High Court identifies some further particular principles or guidelines with respect to s 93A(2) as follows:
a)An order admitting or rejecting further evidence is not a parenting order (s 64B of the Act) and therefore does not directly invoke the paramountcy principle (s 60CA of the Act). However, because the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order ([87]);
b)In determining whether or not to admit further evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard ([88]);
c)In most cases concerned with parenting orders, the discretion should only be exercised in favour of receipt of the further evidence if that evidence is not only relevant to the welfare of the children, but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court for believing that the evidence is not credible ([115]);
d)The discretion needs to be exercised with much care in parenting cases. The advantages of a trial judge of seeing and hearing witnesses are likely to be real ones in a parenting case. The need for caution is particularly great when an order for a change in residence has been made. Applications for a variation of an order pursuant to s 65D, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal ([117] – [119]);
e)The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge, or that there is a real chance that the order under appeal does not serve the best interests of the child ([148]);
f)In some exceptional cases, those concerned with allegations of physical or psychological abuse of a child are an example – it might arguably be a proper exercise of discretion to admit further evidence and order a new hearing even though the Full Court is not reasonably satisfied that the evidence would have produced, or a new hearing would now produce, a different result. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65D[8] to vary the order the subject of appeal ([150]).
[8] The reference to “s 65E” at [150] of the judgment is an innocuous error. In context, the intended reference is to s 65D.
I am not persuaded that it would be legitimate to exercise the discretion conferred by s 93A(2) in favour of receiving the further evidence sought to be adduced by the mother. I am not persuaded that such evidence, if accepted, would demonstrate that the order under appeal is erroneous. It bears repeating that the parenting orders to be made were with respect to all three of the subject children and having regard to the central findings supporting the trial judge’s determination, I am not satisfied that this further evidence demonstrates error.
In short, I am not satisfied that the further evidence would have produced a different result if it had been available at the trial.
The subject evidence is highly contentious. It has been produced without any input from the father or indeed with little particularity as to that which informs the opinions expressed. I have, by reference to Lane & Nichols (and the authorities there discussed) expressed reservations as to the weight which can be legitimately given to stated conclusions, without elaboration of the criteria used to form such opinions. I am not satisfied that the further evidence has any effect in determining the best interests of all three of these children and child E specifically. In this case, the orders made by the trial judge have taken effect with the children returning to live primarily with the father in December 2017 pursuant to the orders. I am not satisfied that this is one of those arguably exceptional cases where the best interests of the children require a new trial on all of the evidence now available, whether or not there is reasonable satisfaction that a different order would probably have been made if that further evidence had been before the trial judge. Moreover, on the evidence and findings made by the trial judge, it is not apparent whether improvement (if any) in the children’s circumstances as a result of a different parenting order was made at this stage might be marginal at best and, whether such a marginal improvement could justify the pain, expense, delay and uncertainty of a second set of prolonged proceedings and the consequences that would flow from the different order.[9] In this respect it is notable that all of the mother’s evidence in support of her application for a stay of the orders, relied upon as part of her application for further evidence, emphasises the importance of stability for these children and the profoundly troubling potential effects on them of being relocated (at that time from City N to City Q). However, that relocation for the children to return to live in City Q has occurred and took place in December 2017.
[9]CDJ at [153] – [154].
The trial judge made an order for equal shared parental responsibility. In the exercise of that responsibility it is open to the mother to propose and be involved in continuing therapy for child E. In the event that such therapy were to demonstrate that child E exhibits the kinds of anxiety he demonstrated back in December 2016, and such anxiety was sourced to separation from the mother, it may well be open to the mother to bring a further application pursuant to s 65D of the Act. Of course, the question of the mother’s capacity to relocate and return to City Q would potentially be an issue. As already noted, despite the orders the trial judge made for time if the mother were to return to City Q, she has elected to remain living in City N. There may well be very good reason for that from the mother’s perspective, but the significant matter is that s 65D of the Act permits the making of a further application for parenting orders, subject to the proviso that the mother may have to show a sufficient change in circumstances to justify the Court undertaking the determinations of such an application.
For these reasons the mother’s Application in an Appeal to adduce further evidence is dismissed.

Ground 1: The learned trial judge failed to place sufficient weight on a relevant consideration, namely the effect on the child, [child E] born [… 2008], of removing him from his mother’s primary care

Ground 2: The learned trial judge erred on the facts by speculating (notwithstanding his disclaimer) as to the reasons for [child E’s] separation anxiety

These grounds are conveniently dealt with together given their commonality.
Much of the foregoing discussion concerning the mother’s application to adduce further evidence resonates with these grounds and needs not to be re-stated. Likewise, that is so with respect to the summary of central findings of the trial judge taken from the reasons for judgment.
Challenge as to the weight given by a primary judge in rendering a discretionary judgment can only succeed when the appellate court is well satisfied that the primary judge was plainly wrong, the decision being no proper exercise of the judicial discretion.[10]
[10]Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) per Stephen J.
It bears emphasis that on the mother’s own oral evidence at trial, already quoted above, child E himself identified, in the mother’s discussions with him at the time of the December 2016 assessment by Ms W, numerous factors, apparently entirely unrelated to any issue of separation anxiety from the mother, which were contributing to child E’s depressive state and his anxiety as identified.
The children spent block holiday time with the father in City Q from 26 December 2016 until 24 January 2017, and part of July 2017 (reasons at [58]). In none of her affidavits post-dating 24 January 2017 does the mother link the January 2016/December 2017 block holiday period the children spent with the father with any apparent separation anxiety for child E. For example, the mother’s affidavit filed on 27 February 2017 makes no reference to any issues as regards child E’s mental health despite child E having spent half of the December 2016/January 2017 school holiday period with the father in City Q. Further, reference has already been made to the recorded observations of the single expert in her family report and in her oral evidence as to the nature of, and child E’s response to, his interactions with the father in the family report interview process.
It is notable that at paragraph 8 of her affidavit filed on 2 March 2017 the mother deposes as follows:
[Child E] has struggled with school and had outbursts resulting in suspensions at times. We sought assistance to have [child E] diagnosed. The waiting time for [child E] to see a paediatrician at the [City Q Hospital] was substantial with follow up appointments only available each 6 months. While I was working away he missed these appointments. In two years of attending the paediatric department at [City Q Hospital] he had not been diagnosed with anything. The school counsellor referred us to the side by side program where he was seen by Clinical psychologist [Ms W]. He was diagnosed with anxiety and depression. I understand he can receive treatment for this in [City Q] though [City N] does have substantially more services and shorter wait times for treatment. [Child E] has settled very well into school this year...
No emphasis is there placed by the mother upon the issue of separation anxiety from her, her focus is upon the availability of assistance for child E for his undoubted mental health difficulties going beyond anxiety.
It bears emphasis that whilst Ms W provided the mother with a referral to relevant services in her local area in December 2016, it was not until 10 April 2017 that the first consultation of child E with Ms Y took place. As already observed, it bears emphasis that only four appointments in total took place with the last occurring on 21 July 2017. Much of the thrust of the mother’s evidence for trial (including the affidavits filed by her family members) was directed to showing how settled all of the children were living with her in City N and, in respect of child E, the significant progress he had made. Again, as at trial and her giving evidence, child E had not consulted Ms Y for some two months.
The trial judge dealt with the question of separation of the children from the mother at [75] – [80] of the reasons.
At trial the mother was cross-examined concerning the therapy undertaken with child E by Ms Y. The mother gave the following evidence[11]:
And what feedback has she given you recently about [child E], if any?---That she has seen a dramatic improvement in him. Her – she communicates with the school counsellor as well that he also still sees. He’s had no issues at school. In discussions with the school counsellor, she said that the school now say he is a model student and he is doing really well.
[11] Transcript of proceedings, 20 September 2017, p 82 ln 42 – 46.
The independent evidence of the single expert psychologist Ms H, prepared as it was with input from both parents and other data, and the interviews of the children and observations of them with both parents, was fundamentally important evidence on the parenting issues concerning all three children as well as the individual consideration of child E’s position. As already noted, that expert, whilst noting significant problems with respect to child E’s mental health, did not identify separation anxiety from the mother as an issue. To the contrary, child E’s expressed desire to the expert to live with the father presents as counter-intuitive to the proposition that child E’s anxiety could be attributed solely or substantially to separation from his mother.

It must also be recognised that the opinions of Ms W and Ms Y, even if admitted and put at their highest, do not link child E’s depressive symptomology (attributed by child E himself to many factors), as opposed to his anxiety, wholly or even substantially to separation from the mother. That is, even if those opinions are accepted and put at their highest, they would have fallen to be considered alongside the single expert’s evidence. In that context the evidence as a whole could hardly be said to incontrovertibility establish that as at trial in September 2017, potential separation anxiety of child E from his mother had the significance for which the mother now contends on appeal.
Much of the mother’s argument on appeal is focused upon criticisms of the trial judge and of the ICL to the effect that they each were obliged to undertake further enquiries into the issue of separation anxiety on the evidence raised by, inter alia, having Ms W and Ms Y called to give oral evidence, and adjourning the trial for that purpose if necessary.
All that needs to be observed of those contentions is that similar arguments were raised before, and rejected by, the Full Court in T and S (2001) FLC 93-086. There the Full Court made the following observations:
The responsibility of the Child Representative
194.The Mother argued that the child representative failed in his duty to place the issues of domestic violence clearly before the Court. The child representative did not appear at the hearing of the appeal.
195.We do not agree that it is part of the child representative’s duty to investigate and present the case for one of the parties. Indeed to have done so in the present case would have compromised the child representative’s neutrality.
The trial Judge’s conduct of the hearing
196.We also note the criticism of his Honour’s alleged failure to further inquire into the issue of domestic violence. Although proceedings involving the welfare of children are not strictly adversary in the usual sense (see Re P (a child); Separate Representative (1993) FLC 92-376 and the cases discussed therein) they are not to be equated with inquisitorial proceedings. The Court and its procedures are simply not equipped to conduct inquisitorial proceedings which would have been required of his Honour if this criticism was to be accepted.
The mother contends that the trial judge was in error at [80] of the reasons when his Honour observed that:
… [Ms Werth] said that there was no suggestion while [child E] was in [City Q] that he was suffering from depression or that he had thoughts of harming himself. She said there were no signs that she recognised of depression or anxiety. These matters had only become apparent since she had been in [City N] with [child E]…
The mother contends that by reference to her own evidence that her evidence was to the contrary. She refers to the following passage[12]:
But that separation anxiety only presented itself in December 2016?---No, that’s not correct.
Well, when do you say it began?---His school teacher.
Where?---Here in [City Q] – actually advised me that he expressed to her that he was missing me a lot. And when I was home in between working away, that he was well behaved at school. And while I was away, his behaviour was definitely – definitely declined.
So you’re saying now that he was – he had separation anxiety when he was living in [City Q]?---Correct.
[12] Transcript of proceedings, 20 September 2017, p 86 ln 1 – 12.
I do not accept that there is any error in the observations made in the trial judge by reference to the mother’s evidence. For a start, the observations recorded in [80] include the question of child E suffering from depression and thoughts of

self-harm, quite apart from issues of anxiety. The evidence of the mother referred to addressed itself only to the question of separation anxiety. Moreover, it was only after the mother commenced living in City N that the consultation with Ms W took place in December 2016. That was the revelation, on the mother’s case, as to separation anxiety. The retrospective view the mother then applied to what she had previously been told in City Q does not displace his Honour’s observation that “[t]hese matters had only become apparent since she had been in [City N] with [child E]”.
I accept the mother’s further complaint that the trial judge was in error in making the following observation appearing in [80] that “[Ms Werth] was unable to permit of the possibility that the signs and symptoms observed by [Ms W] were attributable to [child E’s] move from [City Q] and his lack of contact with [Mr Pacapelli]”. That is, it can be accepted on the mother’s evidence identified in her Summary of Argument that the mother indeed acknowledged the prospect that this was a factor, as indeed the mother acknowledged could be the case in her final oral submissions at trial. However, any error in this respect can hardly be said to be material to the conclusions reached by the trial judge in circumstances where the error relates to a concession in favour of the father’s case (De Winter v De Winter (1979) 23 ALR 211).
Viewed as a whole, the complaint to the effect that the trial judge engaged in “speculating” as to the reasons for the child’s “separation anxiety” is misconceived.
Undoubtedly, child E presented as a child with significant mental health problems. The evidence compelled the conclusion that there were a number of contributing causes to child E’s mental health issues and indeed the single expert referred to, in her oral evidence already quoted, the potential for child E having “an organic mental health disorder”. That is the reason the single expert recommended that child E consult a psychiatrist (rather than a psychologist). Implicit in that evidence is that it is a medically qualified psychiatrist, rather than a psychologist, who is qualified to provide a diagnosis of child E’s mental health.
In circumstances where the mother had ceased her City N work and associated absences in October 2015, and thus child E then ceased to experience his mother’s absences from the family home from that time; and it was in June 2016 that the mother acted to relocate the children with her to City N, it was perfectly legitimate for the trial judge to consider the question of the effect of the ultimate breakdown of the relationship in the context of the physical separation that occurred as having effect on this obviously troubled child. The mother’s own evidence earlier referred to acknowledged the potential for the issues between herself and the father as contributing to child E’s problems. That the trial judge did likewise is hardly open to criticism.
As observed by the plurality of the High Court in CDJ discretionary determinations of parenting applications “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order.”[13]
[13] At [151].
What the trial judge ultimately concluded is that there was no “probative evidence” to support any of the propositions he canvassed at [78] of the reasons as earlier quoted.
I find no merit in either of these grounds of appeal.

Ground 4: The learned trial judge’s decision is plainly wrong

In support of this ground the mother contends that the issue of child E’s mental health should have been explored and that the outcome “may” have been different if the mother’s evidence from the two psychologists referred to “withstood the rigours of a robust cross-examination”.
In short, there is nothing in this ground which adds to that already discussed and addressed in the foregoing.
The trial judge’s determination was of parenting orders in the best interests of all three of the subject children. Already outlined are the central findings made by the trial judge in his Honour’s reaching that determination.
I am not persuaded of any merit in this ground.

Ground 5: The learned trial judge failed to provide adequate reasons

In support of this ground there is simply a repetition of the same complaint about medical evidence as already canvassed in other grounds and discussed.
The trial judge’s path of reasoning to his conclusion is readily discernible. The trial judge had the advantage of seeing and hearing the witnesses give evidence, an advantage which the authorities recognise is a particularly important one in parenting cases (see, for example, CDJ and Gronow).

Other

Whilst not particularised by reference to any of the grounds of appeal stated in her Amended Notice of Appeal filed on 2 February 2018, the mother’s Summary of Argument filed on 13 February 2018 contains the assertion, under the heading “Conclusions” in paragraphs 66 that:
The orders themselves make no provision for counselling or attendance upon a psychologist for [child E]. That, of itself, is an error.
At [88] of the reasons the trial judge recorded this:
I am satisfied that wherever these children live each of these parents will ensure that [child E’s] needs are attended to. I am satisfied that both [Ms Werth] and [Mr Pacapelli] will ensure that [child E] has access to appropriate care and treatment. Having regard to the evidence in this case about his mental state. To the extent that [Ms Werth] suggest that the appropriate treatment options for [child E] are not available in [City Q], I reject her case. The evidence of [Ms H] is clear that there are certainly appropriate specialists and other services in [City Q] to assist [child E] with his needs.
There is no challenge by the mother on appeal to these findings.
The trial judge made an order for the parents to have equal shared parental responsibility for the children thereby imposing the obligations on both parents as expressed in s 65DAC of the Act.
In these circumstances the error contended for is without substance and the contention is rejected.

Conclusion and costs

There being no merit in any ground of appeal pursued by the mother on appeal, the appeal must be dismissed.
In that event, the father sought an order for the mother to pay his party and party costs of the appeal fixed in the sum of $2,183 in respect of the mother’s application for further evidence and $8,986 for the appeal itself, a total of $11,169 on a party and party basis.
In opposing the order for costs no substantive challenges were mounted on behalf of the mother in opposition to the fixed sum sought by the father if a costs order were to be made. The mother’s submissions were directed to any order for costs being made.
The father relies upon the feature that the mother’s Application in an Appeal and the appeal itself have been wholly unsuccessful. In resisting the order for costs the mother advanced submissions as to her financial position. Her net “take home” salary is $85,000 per annum from which she pays rent of $335 per week. It was asserted that the mother has some $43,000 in credit card debt asserted to be joint debts from when the parties were still together. In addition she has other debts including a tax debt of $6,000 and a Centrelink debt of $3,000 and has a child support obligation for the children.
There are also of course the costs involved for the mother in facilitating trips from City N to City Q and vice versa to see the children.
In respect of the parties’ financial circumstances it seems that there were property proceedings between the parties on foot but that the only relevant property remaining is the sum of approximately $10,000 held in trust for both parties. The father’s financial position is that, in summary, he earns an income of $950 per week net (about 60 per cent of the level of income received by the mother) and he likewise has rental and other expenses.
In my judgment, the mother’s financial circumstances as compared with those of the father do not assume determinative significance in respect of the order for costs sought by the father. The mother’s appeal and application have been wholly unsuccessful and there are thus justifying circumstances for an order for costs to be made.
In my judgment the fixed sum sought by the father is a just amount to order by way of costs and I will make that order albeit allowing the mother 90 days to make payment.
The ICL sought no order for costs in the event of the appeal being dismissed.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 7 June 2018.

Associate:

Date: 7 June 2018