WOOLAM & ODIVILAS
[2020] FamCAFC 257
•15 October 2020
FAMILY COURT OF AUSTRALIA
| WOOLAM & ODIVILAS | [2020] FamCAFC 257 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals from parenting orders which provide for, inter alia, the children to live with the mother, for the mother to have sole parental responsibility and for a three month moratorium on the children’s time and communication with the father – Where the primary judge found the father could not provide for the children’s emotional and psychological needs and his conduct presented a risk of psychological harm – Where the primary judge relied upon expert evidence – Where the father alleges bias both on the part of the primary judge and the expert witness – Where no issue of bias on the part of the primary judge was raised at first instance – Where merely making findings adverse to a party does not in and of itself found any complaint of either actual or apprehended bias – Where the central findings made by the trial judge adverse to the father were compelled by the evidence – Where the father’s appeal is without merit – Appeal dismissed – Where there is no order as to costs. |
| Family Law Act 1975 (Cth) Pt VII ss 68L, 93A(2), 94AAA(3), 94AAA(7) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Mr Woolam |
| RESPONDENT: | Ms Odivilas |
| INDEPENDENT CHILDREN’S LAWYER: | Keyworth Harris & Lowe Family Lawyers |
| FILE NUMBER: | BRC | 5465 | of | 2012 |
| APPEAL NUMBER: | NOA | 10 | of | 2020 |
| DATE DELIVERED: | 15 October 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 17 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3746 |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr D Gates |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Frizelle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Keyworth, Harris & Lowe Family Lawyers |
Orders
The appellant father’s Application in an Appeal filed on 20 August 2020 be dismissed.
The appellant father’s Application in an Appeal filed on 3 September 2020 be dismissed.
The appeal from the orders made on 19 December 2019 be dismissed.
There be no order as to costs of the appeal.
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 Woolam & Odivilas 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 10 of 2020
File Number: BRC 5465 of 2012
| Mr Woolam |
Appellant
And
| Ms Odivilas |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 19 December 2019, the primary judge in the Federal Circuit Court of Australia (“the Federal Circuit Court”) made parenting orders[1] following a trial concerning the children, X (born October 2008 and then aged 11 years) and Y (born January 2011 and then aged almost 9 years).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Those orders provided, in summary, for the children’s mother to have sole parental responsibility in relation to major long-term issues and for the children to live with the mother. An initial three month moratorium period was imposed upon the children spending any time or communicating with their father; followed by a three month period of supervised time for two hours each week. Thereafter an ordered graduated progression of time ultimately results in the children spending time with the father on alternate weekends, one afternoon in the alternate week, and for half school holiday periods.
The father was restrained by injunction from taking the children to any medical/counselling or therapy appointments unless in an emergency. The father was also ordered to attend upon his general medical practitioner to obtain a mental health plan and medical assistance with his anxiety surrounding the children living with the mother.
The orders made were in accordance with the orders sought at the conclusion of the trial by the lawyer appointed[2] to independently represent the children’s interests in the proceedings (“the ICL”). The ICL’s proposed orders were adopted by the mother.
[2] Pursuant to s 68L of the Act.
Taken from the reasons for judgment of the primary judge the central findings upon which the orders made were determined to be in the children’s best interests included:
a)That the father favours the child X over Y and has demonstrated a critical approach towards Y (at [14] and [15]);
b)The father has made co-parenting very difficult by his constant false claims about the mother’s parenting ability (at [17]);
c)The father has embarked upon a course of action to obtain evidence to support his view that the mother has been neglecting and abusing X (at [32] and ff);
d)The father lied in his evidence in relation to the issue of him seeking a medical practitioner to prescribe anti-anxiety medication for the child X (at [51], [52] and [53]);
e)The father has acted to seriously undermine the mother’s relationship with the child X (at [54]);
f)
A five minute video recording[3] showing X sitting at a table crying while the father provides a commentary about X’s mental state and expressing negative views about the mother demonstrates the father’s gross lack of insight as to the emotional harm such recording might cause to the child and the harm to him with respect to undermining the
[3] Admitted into evidence as Exhibit 4.
mother-child relationship (at [59]);
g)The father has an entrenched negative attitude toward the mother and continually denigrates the mother as a person and as a parent; and has a skewed sense of superiority and grandiosity in terms of his personal and parenting capacity such that long-standing issues concerning parenting will continue (at [62]);
h)Immediate steps must be taken to protect X from the psychological harm that he is suffering in the father’s household (at [63]);
i)The father perpetrates conduct amounting to alienating X from his mother and having a coaching effect upon that child and having damaged that child’s relationship with the mother – there exists an enmeshed relationship between X and the father which does not leave X free to have a relationship with his mother – if allowed to continue the relationship between X and his mother is likely to be non-existent leading to serious long-term effects for the child (at [65]);
j)X’s alienation from his mother and X’s enmeshment with his father has an adverse impact on the sibling relationship between the children (at [65]);
k)The father’s conduct amounts to psychological or emotional abuse of X (at [65]);
l)The evidence overwhelmingly supports the conclusion that the father poses a significant risk of psychological harm to the children because of his extremely negative attitude towards the mother (at [108]);
m)The mother has the capacity to provide for all of the needs of the children but the father does not have the capacity to provide for the children’s emotional needs (at [121]);
n)The father has engaged in family violence by repeatedly taunting the mother and the mother’s family in the presence of the children (at [125] and [126]);
o)A moratorium upon the children spending any time with the father provides the best chance of both children having a relationship with both parents and is in the best interests of the children (at [128]); and
p)The father is incapable of cooperating in a reasonable manner with the mother in terms of parental responsibility such that an order for sole parental responsibility in favour of the mother is required (at [140]).
The father appeals from the orders. His appeal is opposed by the mother and by the ICL.
Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the jurisdiction of this Court in relation to the appeal is exercised by a single judge.
For the reasons which follow, the appeal ought be dismissed. As I am of the opinion that the appeal does not raise any question of general principle, reasons for that decision will be given in short form.[4] The singular lack of merit in the appeal renders the conclusion that reasons in short form are all that is necessary.
[4] Pursuant to s 94AAA(7) of the Act.
Applications to adduce further evidence
The father has filed two Applications in an Appeal on 20 August 2020 and 3 September 2020 respectively for the Court to receive further evidence on appeal. Both applications are opposed by the other parties.
As is identified in the affidavit of the ICL filed on 4 September 2020, some of the material sought to be adduced as further evidence on appeal is in fact already in evidence as part of the evidence at trial, either as an annexure to an affidavit filed at trial or as part of an exhibit. Obviously enough, it is unnecessary for that material to be subject to an application for further evidence.
As to the balance of material sought to be admitted, the factors relevant to the exercise of the discretion, and the nature of the discretion conferred by s 93A(2) of the Act for this Court to receive further evidence on appeal upon questions of fact, is detailed in CDJ v VAJ.[5]
[5] (1998) 197 CLR 172 (“CDJ”).
The father seeks to adduce, as further evidence, various “papers”. Academic writings or the product of internet searches together with “case studies” and indeed a media report are plainly not admissible as evidence in accordance with the usual rules of admissibility of evidence, absent the consent of the other parties, who oppose the receipt of this material. In any event, questions of admissibility aside, the father fails to demonstrate the cogency of any of the subject matter of his applications in the sense of demonstrating that the receipt of any of this material as evidence would be likely to have any effect whatsoever upon the outcome of the case.
Given the central findings earlier outlined, upon which the orders made by the primary judge are founded, the father fails to demonstrate how any of the material the subject of his applications could have any possible impact on the central findings reached, or upon the outcome of the case which rests upon those findings.
Shortly stated, the father fails to demonstrate that any of the criteria for admission of further evidence on appeal as discussed in CDJ is met with respect to either of his applications.
The father’s applications to adduce further evidence on appeal will be dismissed.
Challenges on appeal
The father is self-represented. There is limited correlation between the three (3) grounds of appeal stated in his Notice of Appeal and the discursive narrative contained in the father’s Amended Summary of Argument.
The father’s grounds of appeal are as follows:
1.His Honour accepted evidence without stating his reasons for doing so.
2. His Honour made findings that were contrary to the evidence.
3.His Honour failed to adequately deal with submissions of counsel for the father.
(Emphasis in original)
Self-evidently the grounds of appeal as stated are devoid of any sufficient particulars as would enable the error contended for to be identified. Thus, these are not proper grounds of appeal.
The immediate difficulty with the father’s Amended Summary of Argument is that it takes a discursive and narrative form such that it obscures, rather than reveals, the errors of fact or law contended for or the particulars relied upon to support any such contention. This difficulty was not remedied by the father’s oral argument on the hearing of the appeal.
Adopting as generous an approach to the father as can be taken, it appears that the following central complaints, further to those general complaints identified in the grounds of appeal, are discernible. First, that the primary judge displayed either actual bias or, at least, produced an apprehension of bias. Second, that the father was denied natural justice or procedural fairness due to the conduct of each of the mother, her legal representatives, counsel for the ICL and the single expert family report writer. As to the family report writer, the complaint extends to an assertion of bias on the part of the expert.
Complaint of bias of the primary judge
The reasons for judgment of the primary judge reveal that each of the central findings made by the primary judge, as earlier outlined, are supported by his Honour’s comprehensive and detailed discussion of the evidence relevant to each such finding. It is clear that each such finding was open to be made on the evidence identified and discussed by his Honour and the father fails to identify any error on the part of the primary judge in reaching any of these findings. For example, the fact that the primary judge found (at [52]) that the father had lied about the identified issue, and otherwise made findings about the father’s efforts to gather evidence at the child X’s expense, were findings open on the evidence the primary judge discusses in detail at [32] to [59] of the reasons. None of this provides a foundation for a complaint of actual or apprehended bias. As the authorities make plain, the fact that a trial judge reaches findings adverse to a party to litigation does not in and of itself found any complaint of either actual or apprehended bias.[6]
[6] Johnson v Johnson (2000) 201 CLR 488 at 492; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 446–447.
The further aspect argued by the father in support of this complaint is misconceived. The father contends, in effect, that the primary judge proceeded on a wrong premise that the father has a possible diagnosis of personality disorder. The complaint is misconceived because the primary judge expressly disavowed any reliance upon any such possible diagnosis. At [107] of the reasons, the primary judge records:
107.Counsel for the father has made various submissions in relation to the diagnosing of personality disorders. I want to make it abundantly clear – the decision of the Court does not in any way relate to any diagnosis or provisional diagnosis or attempted diagnosis of the father in relation to the existence of any possible personality disorders.
To this may be added the fact that the father’s counsel at trial did not raise with the primary judge or agitate any complaint whatsoever of apprehended bias. It is not open to the father to raise this complaint for the first time on appeal.[7]
[7]Vakauta v Kelly (1989) 167 CLR 568.
There is in any event no substance in this complaint.
Complaint of bias of the expert
It is clear from the reasons for judgment that the primary judge accepted, as his Honour was entitled to do, the expert opinions provided by the single expert family report writer in both her written and oral evidence. The father agitates a complaint to the effect that the expert was biased against him with the consequence that the primary judge was wrong to rely upon her opinions.
The first point to be emphasised is that whilst the primary judge relied upon and gave weight to the opinions of the expert, it is abundantly clear that the outcome of the case was not driven solely by the opinion of the expert or his Honour’s acceptance of such opinion. His Honour made his own observations on various aspects of the evidence as is reflected in the reasons for judgment. A simple example relates to Exhibit 4, being the video created by the father taken of the child X earlier referred to. At [103] of the reasons, the primary judge observed about that video, quite separate to any opinion expressed about it by the expert, as follows:
103.Implicit in the questioning of [Ms J] on this issue is a contention on the part of the father that his conduct in preparing such a video was justified. The contention which is to be inferred from that line of questioning is that it was perfectly appropriate for the father to prepare such a video because it was really only ever meant for the child’s counsellor, [Ms T]. This displays a further incredible lack of insight. The reason that the video was prepared, is not relevant. What is relevant and what is of great concern to the Court is the content of the video. It portrays the manner in which the father speaks in such a negative way about the mother in the presence of the presence of [sic] [X].
Quite apart from the expert evidence, the primary judge examined in considerable detail the evidence concerning the father’s pursuit of medical evidence to legitimise his allegations of risk against the mother. The primary judge highlights that from as early as August 2013 the father was seeking referrals to numerous psychologists to assess X for signs of trauma and abuse (at [32]). As the primary judge noted, since 2 November 2017 the father has involved X in therapy with three separate psychologists and multiple visits, all without the mother’s knowledge or consent (at [35]). Moreover, as the primary judge noted the subpoena evidence disclosed that the father would routinely express his beliefs that the mother abused X and that such psychological treatment continued despite expert evidence provided to the father at the time that both parents ought to be involved in psychological counselling.
Ultimately, the primary judge’s findings included this:
121.I have full confidence that the mother has the capacity to provide for the emotional and intellectual needs of the children. Indeed, I have confidence that the mother has the capacity to provide for all the needs of the children. I have no confidence that the father has the capacity to provide for the emotional needs of these children. Having observed the father in the witness box and listened to his testimony; having watched the father in the video which is exhibit 4; having had regard to the family reports; I have come to the conclusion that the father, at the present time, does not have the necessary capacity to provide for the emotional needs of these children. He has continually and unfairly denigrated the mother and the mother’s family. If he was allowed to continue upon his path there would be absolutely no chance of redeeming [X’s] relationship with the mother. Drastic steps are needed. This much was stated by [Ms J] and I accept her evidence. The father’s denigration and belittling of [Y] also confirms for the Court that he lacks the capacity to provide for the emotional needs of the child [Y].
The prime example the father seemingly focused upon in argument for his contention that the family report writer was biased against him, was to the effect that the expert had described the father as wearing “the black hat”. That is an entirely misconceived premise. It was the father’s counsel, and not the expert, who raised this description. As the primary judge correctly recorded at [100] of the reasons:
100.As to the cross examination of [Ms J] by Mr Garlick of counsel on behalf of the father – I note again that it was not put by Mr Garlick to [Ms J] that she had displayed bias or unfairness of any kind in the preparation of her report. Mr Garlick asked [Ms J] as to whether she had formed the view that the father “had the black hat on”? [Ms J] stated that she did not “think in those terms”. I accept [Ms J’s] evidence.
(Emphasis in original)
At [129] to [137] of the reasons, the primary judge comprehensively dealt with complaints the father agitated at trial via his counsel as to alleged bias on the part of the expert, and the related complaint that the expert failed to afford the father procedural fairness. That comprehensive rejection of these complaints demonstrates that all the father seeks to do on appeal is to re-agitate the same complaints as were raised before the primary judge and dealt with by his Honour.
There is no substance in the father’s complaints as to bias or a failure to provide him with procedural fairness on the part of the expert.
Balance of the father’s complaints
There is no substance in Ground 1 of the father’s appeal that the primary judge accepted evidence without providing reasons for so doing. The reasons for judgment reflect a more than adequate articulation of the process of reasoning undertaken by the primary judge in support of the conclusions his Honour reached.
Moreover, nothing pointed to by the father supports the proposition in Ground 2 that the findings made by the primary judge were “contrary to the evidence”. In short there was ample evidence for each of the important central findings which have already been summarised above. Rather than being contrary to the evidence, the central findings were compelled by the evidence.
The complaint in Ground 3 that the primary judge failed to adequately deal with submissions made at trial by the father’s counsel actually devolves to the proposition that the primary judge was somehow in error simply because he did not accept the father’s case or the submissions made in support of it. This amounts to no more or less than the father’s attempt to re-agitate the same issues that have been comprehensively dealt with and determined by the primary judge, including by detailed reference to the evidence his Honour accepted.
Nothing to which the father directs attention on appeal substantiates any of his claims of some denial of natural justice or procedural fairness to him in any of the conduct of the other parties or the ICL or, as already discussed, the single expert.
The primary judge was entitled to accept or reject the submissions of each party provided such acceptance or rejection had a foundation in the evidence. The primary judge clearly articulates in his Honour’s reasons for judgment the basis for acceptance or rejection of submissions.
No error is demonstrated by the father in the primary judge’s acceptance or reliance upon the expert opinion of the family report writer. It cannot be seen that his Honour’s acceptance of the expert’s opinions is against the preponderance of the other evidence.
The father has failed to demonstrate that the primary judge’s discretion to determine final parenting orders miscarried in any respect by reference to the well-established principles expressed in House v The King[8] and CDJ.
[8] (1936) 55 CLR 499.
Conclusion
For these reasons, the father’s respective Applications in an Appeal and the appeal itself will be dismissed.
In the event of dismissal of the appeal neither the mother nor the ICL sought any order for costs, so it is appropriate for there to be an order that there be no order as to costs of the appeal.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 October 2020.
Associate:
Date: 15 October 2020
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