X v Y
[2015] WASCA 70
•13 APRIL 2015
X -v- Y [2015] WASCA 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 70 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:72/2014 | 3 MARCH 2015 | |
| Coram: | NEWNES JA MURPHY JA CHANEY J | 13/04/15 | |
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | X Y |
Catchwords: | Single expert witness Critique of single expert witness's report Qualification and competency of expert witness Expert not a clinical or forensic psychologist Parenting orders Family violence Child's best interests s 66C Principles relevant to an appeal of evaluative decisions or evaluative judgments |
Legislation: | Family Court Act 1997 (WA), s 7, s 9A(1), s 36, s 66, s 66C, s 164, s 165, s 202L, s 210A |
Case References: | CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Chapa v Chapa (2013) FLC 93-538 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Fleming v Hutchinson (1991) 66 ALJR 211 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 H v P [2011] WASCA 78 House v The King [1936] HCA 40; (1936) 55 CLR 499 Middleton v The Queen [2000] WASCA 213; (2000) 114 A Crim R 258 Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 X and Y [2014] FCWAM 96 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : X -v- Y [2015] WASCA 70 CORAM : NEWNES JA
- MURPHY JA
CHANEY J
- Appellant
AND
Y
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE A MORONI
File No : 2014 FCWAM of 96
Catchwords:
Single expert witness - Critique of single expert witness's report - Qualification and competency of expert witness - Expert not a clinical or forensic psychologist - Parenting orders - Family violence - Child's best interests - s 66C - Principles relevant to an appeal of evaluative decisions or evaluative judgments
Legislation:
Family Court Act 1997 (WA), s 7, s 9A(1), s 36, s 66, s 66C, s 164, s 165, s 202L, s 210A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Chapa v Chapa (2013) FLC 93-538
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Fleming v Hutchinson (1991) 66 ALJR 211
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
H v P [2011] WASCA 78
House v The King [1936] HCA 40; (1936) 55 CLR 499
Middleton v The Queen [2000] WASCA 213; (2000) 114 A Crim R 258
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
X and Y [2014] FCWAM 96
- REASONS OF THE COURT:
Introduction
1 The appellant appeals against a decision of Magistrate Moroni in relation to parenting and related orders concerning the children of the de facto relationship between the appellant and the respondent (the magistrate's reasons are anonymised for present purposes, as X and Y [2014] FCWAM 96).
2 The appellant and the respondent have two teenage children. The appellant is the father and the respondent is the mother of the children. The dispute between the appellant and the respondent was principally concerned with whether or not the appellant should have contact with the children. There was evidence of family violence including, most significantly, a serious assault by the appellant on the maternal grandfather of the children.
3 The respondent sought orders to the effect that sole parental responsibility be held by the mother, that the children live with the mother, and that there be no restraint on the issuance of passports and travel with respect to the children. The Independent Children's Lawyer (ICL) proposed that either the court make an order in very general terms for the children to spend time with the appellant strictly in accordance with their wishes, or alternatively, that no order be made requiring the children to spend time with the appellant. The appellant sought orders to the effect that the parties have shared parental responsibility, and that the appellant spend time with the children.
4 The primary court made orders generally consistent with the orders sought by the respondent and the ICL. The court declined to grant the orders sought by the appellant to spend time with the children.
5 In making these orders, the primary court observed that the subject of family violence represented 'one of the key issues in [the] case': X and Y [73]. Section 9A(1) of the Family Court Act 1997 (WA) (FCA) provides that:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. (original emphasis)
6 In determining the best interests of the child, the court must take into account, amongst other things, 'any family violence involving the child or a member of the child's family': s 66C(3)(j) of the FCA. A 'member' of the child's family includes, relevantly, a 'relative', including the mother and grandfather of the child: s 7 FCA.
7 The respondent was served with the papers but took no part in the appeal.
8 In substance, many of the arguments in the appeal centred upon the weight given by the primary court to the views of the 'single expert witness', and the views of the children, in concluding that orders should not be made requiring the children to spend time with the appellant.
9 Before addressing the appointment of the single expert witness, and the views of the children, it is convenient to outline, in broad terms, the background against which the dispute arose.
Broad background
10 (All references to paragraph numbers in the reasons below are references to paragraph numbers in Magistrate Moroni's reasons unless otherwise indicated.)
11 The parties were in a de facto relationship, and lived together with the children, before their separation on 29 June 2011 [32], [51]. On 29 June 2011, they separated 'in most acrimonious circumstances' [32].
12 On 29 June 2011, the appellant committed a serious assault upon the respondent's father in the family home [32] - [33]. The respondent's father:
sustained extensive fractures of the left-sided facial bones including the cheek bone and the bone below the eye. Also the Respondent's father suffered a left-sided fracture of the eye socket and a left-sided fracture of the jaw together with a right-sided fracture of the cheek bone. The Respondent's father required surgical repair and plates had to be inserted in the necessary places [115].
13 The appellant was prosecuted in connection with the assault. He was legally represented in the criminal proceedings but did not give evidence. It was submitted on behalf of the appellant in the criminal proceedings that he had acted in self-defence on the basis that the respondent's father had threatened him with a knife. The magistrate found that the prosecution had negatived self-defence beyond reasonable doubt and had established the offence beyond reasonable doubt [123]. On 20 February 2013 the appellant was convicted of aggravated assault occasioning bodily harm [34]. The appellant had not expressed any remorse or contrition over the incident [125], [132], [137].
14 The parties were in dispute as to whether or not the children had actually witnessed the committing of the assault on 29 June 2011 [128]. However, on either account, both children were in the house at the time. They witnessed 'a lot of bloodshed' and the 'dramatic physical effect the assault had upon their grandfather' [180].
15 The children have not spent any time with the appellant since 29 June 2011 [52].
The evidence from the children
16 In the proceedings below, the primary court placed great weight on the views of the children [233]. It is convenient to note the evidence in that regard.
17 The children did not give evidence directly at the hearing. Their evidence was given via statements made to the single expert witness, to an officer of the Department for Child Protection (the DCP officer, whose unsigned report was received into evidence), and to a psychologist who was counselling the children (the children's treating psychologist) [108].
18 The children's statements supported the respondent's case that the appellant had engaged in family violence prior to the assault, at least in relation to emotional and verbal abuse [98] - [102], [108].
19 Evidence of the children's views and relationship with their father was given through the single expert witness in his report dated 23 May 2013 (GB 102 - 146). The single expert witness gave oral evidence and was examined by the ICL and was cross-examined by the appellant (ts 55 - 84, 24/04/14).
20 According to the single expert witness, the children stated that they had informed their counsellor, their mother, and the ICL, that they did not wish to have any contact with their father. The single expert witness stated in his report that the children referred, in this regard, to 'the violence [the appellant] perpetrated on their grandfather, and also towards them and their mother before this [incident]' (GB 103).
21 In his report, the single expert witness recounted the effect of what the children had said in his interviews with them. He also recorded his general impressions of his interviews with them. He also included direct quotes of statements made by the children during the interviews (GB 118 - 120). Annexed to his report was also a letter written by the daughter addressed to the single expert witness and the court, which expressed her wish not to have contact with her father (GB 134 - 136).
22 The children's direct quotes, to which the single expert witness referred, included (GB 118 - 120):
• The son: I had never seen anything like that [the assault on the grandfather] before … But he was mean … Like if his friends would come over, he'd probably ask me to get something for him, and if I couldn't find it quickly, he'd say something mean to me like 'that dumb kid', in front of his friends.
• The son: I don't really feel scared anymore … And I would just like my dad to know I hate him; because he's mean.
• The daughter: I was shaking [in consequence to the assault on the grandfather], in shock, frozen, worried … I was 12 years old … There was blood … I've been traumatised! I still get flashbacks. I can't sleep. I can't concentrate at school … It's hard for me to go on - like with education and stuff.
• The daughter: I don't want anything to do with dad at all. No contact! He's violent, an alcoholic and aggressive.
23 In relation to the evidence of the children's treating psychologist, her reports dated 9 July 2012 included:
[The son] attended an initial assessment session with his mother on 10 April 2012. At this assessment [the son] reported numerous presenting symptoms suggestive of post trauma anxiety. These included being concerned for the safety of his mother (with respect to his father), a high level of reported worry about the current court process relating to the previous assault, and the family's finances. [The] mother also reported that [the son] often appeared 'sad' and had dysregulated sleep. I note that [the son] co-sleeps with his mother and sibling as he feels safer than alone in his bedroom. Most of these symptoms appear to have arisen post [the son's] witness to the alleged assault, though he reported that his concern for his mother's safety pre-dated this (GB 96).
[The daughter] reported numerous presenting symptoms suggestive of post trauma anxiety. These included frequent nightmares often involving her father, being concerned for the safety of her mother (with respect to her father), hypervigilance, and a high level of reported worry about the current court process relating to the previous assault, and the family's finances. [The daughter] also reported generally feeling 'stressed' most of the time. [The daughter] noted that most of these symptoms had arisen post her witness to the alleged assault, although she reported that her concern for her mother's safety predated this as she felt her father 'mean' even before the alleged incident (GB 98).
24 The children's treating psychologist was not called to give oral evidence.
25 The DCP officer was also not called to give oral evidence. Although her report was not included in the green appeal books, it was on the primary court file and was received into evidence as exhibit 1 in the primary court. The DCP officer's report included the following:
Since the events of 29 June 2011 [the daughter] (12) and [the son] (10) … have been resolute in their unwillingness to have contact with [the appellant], [the appellant] citing reasons of abusive behaviour toward them, both past and present. With regard to most recent events [the children] recalled with clarity the evening of 29 June 2011 giving graphic details of what they saw and heard. For example, [the son] claimed that he saw '[the grandfather]'s eye bleeding' and heard [the appellant] make threats to 'kill' whilst [the daughter] told workers 'I saw what he did, he is violent'.
In terms of the broader relationship the children gave examples of [the appellant]'s negative behaviour toward them portraying him as angry, intimidating, threatening, violent, name calling, belittling and 'often drunk'. [The son] recalled an incident whereby [the appellant] threatened 'when you are older, if you raise your hand to me I will kill you'. [The son] alleged physical abuse and indicated that [the appellant] called him names such as 'stupid' and 'idiot' and used the 'f word'. Similarly [the daughter] alleged that [the appellant] 'shouts a lot' and 'gets angry really quickly' and 'usually comes home drunk'.
There was significant discrepancy between the relationship as described by the children and that described by [the appellant] with numerous examples given by each party serving only to emphasise the divide. For example [the appellant] cited a six week trip that he took to [a country in Europe] in 2008 with his daughter whereby he 'never left her alone'. [The daughter] on the other hand remembers being 'left at home a lot' whilst [the appellant] went out 'every night'. Similarly, [the appellant] spoke in glowing terms of the relationship with his wife, [the respondent], describing it as 'almost perfect' prior to her parents moving in. By contrast [the respondent] alleges that [the appellant] was abusive towards her, for example calling her 'ugly' and telling her that he is 'embarrassed to be seen with her' and was physically violent on occasion. Interestingly, [the appellant] reported that his wife would never go anywhere with him therefore it fell to him to take the children on outings. The children reported very few outings.
Clearly there are discrepancies between varying accounts of family relationships however accounts provided by the children appeared consistent, credible and convincing differing greatly from that of [the appellant's]. For example, referring to his father in law as 'controlling' [the appellant] described a situation whereby [the grandfather] wanted [the children] to walk to school. [The appellant] strongly disagreed with this and an argument ensued between the two men. It is notable therefore that, upon leaving the family home, [the appellant] took with him the three family cars leaving his children without transport to school. It is also interesting to note that whilst seeking contact with his children and despite the obvious distress this is causing them [the appellant] indicates that 'this is more for their benefit' than his.
Without question to argue against a parent having contact with their children is a serious position to take however the evidence suggests that [the appellant] has little insight into the needs of his children much less the impact of his own behaviour upon them, past and present. Further [the appellant] evidences a lack of empathy, for example he laughs at suggestion his children are frightened of him. He evidences an absence of remorse in regards to the violence to which his children have been exposed suggesting he needs only to explain that he acted in self-defence. Irrespective of fault or blame it might reasonably be expected that [the appellant] would assume responsibility for his part in the violence and give serious consideration to the possibility that it is his behaviour having influence upon his children as distinct from others.
[The children] have clearly articulated their wish not to have contact with [the appellant]. Further they have provided a sound basis upon which they arrived at this decision. [The appellant] on the other hand is lacking in insight and appears particularly ill equipped to provide for their emotional needs. For these reasons it is argued that to insist upon [the children] having contact with [the appellant] at this time would be contrary to their best interests.
26 In cross-examination in relation to the DCP officer's report, the appellant said, in effect, that insofar as the children made adverse statements about him, they were not telling the truth (ts 39 - 43, 24/04/14). In relation to why he contended that they were not telling the truth, he said:
It's anything for survival so if the children did it they did it because they were influenced by [their] mother (ts 41, 24/04/14).
The appointment of the single expert witness
27 Section 202L(1)(d) of the FCA provides for the court's general powers relating to the provision of expert evidence in child-related proceedings, including in relation to the determination of what is in a child's best interest:
202L. Court's general duties and powers relating to evidence - FLA s 69ZX
(1) In giving effect to the principles in section 202B, a court may -
…
(d) if the court considers that expert evidence is required, give directions or make orders about -
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert's evidence;
29 The order of 21 March 2013 was to the effect that:
1. [The single expert witness], Social Worker, be appointed Single Court Expert in these proceedings pursuant to the Family Court Rules Part 15.5 to enquire into and report on the following:
a) The relationship between the Applicant and the Respondent;
b) The relationship between the children with [sic] the Applicant, the Respondent and any other significant person;
c) Whether the Applicant will promote the relationship between the children and the Respondent;
d) Whether the Respondent will promote the relationship between the children and the Applicant;
e) The Applicant's capacity to recognise and provide adequately for the physical, social, intellectual and emotional needs of the children;
f) The Respondent's capacity to recognise and provide adequately for the physical, social, intellectual and emotional needs of the children;
g) Whether the children are at risk of abuse of any kind from any person;
h) Any recommendations with respect to the residence of the children;
i) Any recommendations with respect to contact between the children and the non-resident parent;
j) Any recommendations considered appropriate in relation to the psychological, social and emotional wellbeing of the children, including whether either party or the children requires further assessment by a psychologist or psychiatrist;
k) Whether the Applicant, Respondent or the children would benefit from any therapy or counselling and, if so, the nature of the therapy and/or counselling and the reasons for those recommendations;
l) Any other matter the Single Court Expert considered relevant to the welfare of the children.
The single expert witness's report
30 The report was based on interviews with the children when they were aged 14 and 12 years old respectively, as well as interviews with each of the parents.
31 At the outset, it may be noted that insofar as the report dealt with 'family violence', the single expert witness said:
I think it would be helpful at this point to define the family violence. I refer to the definition in the Family Violence best practice principles published by the Family Court of Australia (Family Court of Australia, 2011):
'Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.' (GB 125)
32 The key conclusions reached regarding the children in the report were that the children were present at the house during the events of 29 June 2011, and had also witnessed a long history of family violence in the sense of conduct reasonably causing members of the family to feel apprehensive about their personal wellbeing or safety (GB 127); the children were exhausted by managing the trauma in the wake of violence and aggression to family members (particularly the 29 June 2011 incident) (GB 121) ; that neither of the children wished to have any contact with the appellant (GB 103, 121); that the children should continue living with their mother (GB 130); that overruling their views on this matter would cause intense trauma and affect their present mental health and future development and wellbeing (GB 125, 128, 131); that there was no need for the children to be assessed by a psychologist or a psychiatrist; and that the counselling and remedial therapeutic services to which the children have had access have been adequate (GB 131).
General conclusions
33 The key conclusions reached by the single expert witness included the following. The children had a close relationship with their mother (GB 121) and she was able to recognise and provide for all the children's needs (GB 123). The appellant was not well placed to recognise and provide adequately for the children's needs. There was a remarkable disparity between the children's views of the world, their hopes and needs, and the appellant's perception of these matters (GB 123). Neither parent would be able to promote the relationship between the children and the other parent (GB 122). The appellant failed to recognise the severity of his actions, and the powerful detrimental impact they have had on members of his family (GB 128). There was an incongruity between the appellant's own views of the effects of the 29 June 2011 incident and the effects of the incident as described by his children (GB 130). The appellant would benefit from counselling to help him develop a perspective towards his family and contribution to it, to make better sense of the views of other members (GB 131).
The criticism of the single expert witness's report
34 The appellant called a psychologist (the appellant's expert witness) to give a critique of the single expert witness's report. The appellant's expert witness explained in his report that his 'brief [had been] undertaken' at the request of the appellant's current partner. In the following passage he appeared to refer to himself as the 'Examiner' and to the single expert witness as the 'Family Court reporter':
I note that the brief undertaken and conveyed to [the appellant's partner] by [sic] the Examiner was that an independent second opinion and critique of the Family Court report would be undertaken with respect to the weight that could be placed on this previous report of the Family Court Reporter [sic]. It was indicated that an alternative opinion regarding the family situation could not be provided, as in Independent critiques of this type, the critique is limited to assessing the report across a set of criteria rather than to present an alternative view of the family context (GB 57).
35 Magistrate Moroni identified and summarised the particular criticisms made by the appellant's expert witness as follows:
1. The appellant's expert witness indicated that there ought to have been a full psychological assessment of each of the parties [191].
2. The appellant's expert witness was somewhat critical of the relatively short time the single expert had spent interviewing the children [193].
3. The appellant's expert witness was critical of what he described as an omission in the report of the single expert to refer to 'relationship evaluation' [195].
4. The appellant's expert witness shared the appellant's concerns that the single expert focused unduly on the circumstances surrounding the appellant's assault of the respondent's father [198].
36 The appellant's expert witness concluded his report in the following terms:
1. This critique of the single expert witness family report has identified methodological and procedural flaws, among other issues identified, that underpin potential flaws in the conclusions and ultimately the recommendations made in this report.
2. It should be noted however that the current critique and analysis of the report does not indicate that the conclusions of the family report are correct or incorrect, as such issues are beyond the scope of this critique.
3. Nevertheless, this analysis identifies that there are sufficient methodological and procedural limitations to indicate that the matter may be appropriately dealt with through the re-examination of the family and relevant collateral information with an alternative single expert. In this matter, due to the issues identified in the family matter, the appointment of a Clinical and/or Forensic Psychologist with appropriate expertise would be appropriate (GB 75).
37 In re-examination, the appellant's expert witness said:
I've made the point in my report that the role of an evaluator of the report of writing a critique is not to outline an alternative point of view or expand on what has occurred or whether or not the actual conclusions that the report writer has come to are correct or incorrect but rather to consider issues of methodology and process rather than providing alternative recommendations in the case and so I'm reluctant and won't make any recommendations regarding this matter (ts 96, 24/04/14).
38 In the list of materials which the appellant's expert witness said that he had reviewed for the purpose of his report, he did not list the report of the DCP officer (GB 59 - 60).
The role and submissions of the ICL
39 Section 164(2) of the FCA provides:
If it appears to a court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court
(a) may order that the child's interests in the proceedings are to be independently represented by a lawyer; and
(b) may make such other orders as it considers necessary to secure that independent representation of the child's interests.
40 Section 165(2), s 165(4) and s 165(5) of the FCA provide:
(2) The independent children's lawyer must -
(a) form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.
…
(4) The independent children's lawyer -
(a) is not the child's legal representative; and
(b) is not obliged to act on the child's instructions in relation to the proceedings.
(5) The independent children's lawyer must -
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings -
(i) analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court's attention;
and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
And I think that there is ample evidence that this family was subjected to long-term family violence and it doesn't have to be in the form of physical abuse. It can be shouting, it can be intimidation, name calling, which the father obviously objects - says didn't happen, the mother did say it happened, the children say it happened and it's not as simple as giving an explanation to say that these children have been brainwashed by the grandparents and the mother.
I think that [the single expert witness] … took the view that it seems unlikely that the mother and her family had influenced the children against the father. The influence has come from what the children have seen and been exposed to … in the wider definition other than just straight physical violence.
I think really what it comes down to is [the appellant's] lack of insight as to what has occurred in this family. He has not in any way provided financially for these children since the separation. Buying expensive presents, which appears that the children didn't want or haven't taken, is not financially providing for the family.
…
I mean, I know the property issues weren't before you but that affidavit has been exhibited and I think there is sufficient information in there that would lead you to consider that this, again, is another form of family violence by using power and control to control the money … I think that we have to take into account these children's wishes and they have been consistent and delivered to a number of people over the last nearly three years.
They are now 15 and 13 and I think it would be totally - I could not see how it could be in these children's best interests to be forced to have a relationship with someone that they do not wish to have a relationship with.
…
You cannot make teenage children attend counselling if they don't wish to go.
…
But it is quite clear in my mind, sir, that these children have consistent and firm wishes which they have repeated to a number of people and because of their ages and because of the dynamics in this family I do not think it is appropriate to try and even suggest it's appropriate that the children should be attending supervised contact at this stage.
…
This is not a criminal court. We are not retrying the assault … What we are dealing with here is what is in the best interests of these children and what has occurred to them and in their minds is very realistic to them. They perceive that there was trauma in their family and I think that we cannot undo that.
…
I think that because of the ages of these children we have to take into account their wishes and I would have thought in the event that they were forced to attend any supervised contact it would probably re-traumatise the children.
…
And I can't see, your Honour, as this case is now to be finished … [how] it would be appropriate for you to order another single expert's report in this matter. That matter was canvassed before Magistrate Stewart and that was when the critique was created. Now, I mean, I view in relation to the critiques, sir, is that as the - and I have no criticisms of [the appellant's expert witness] as such, … he has not seen the children, he has not spoken to the parties, he has not had the benefit of the interview process.
It could be argued, it could be flawed, but the single expert's report in this matter was very clear and the children were reluctant to see the single expert and he took the view that it was not appropriate to put them through a cross-examination as it were.
And it would be my … position … as I've outlined - the orders should be made as I've outlined in relation to sole parental responsibility; children live with the mother and subject to the wishes - and I can see no reason why that injunction for removing the children from Australia should remain in force either.
Primary decision
Preliminary findings
42 It was the respondent's case that she experienced long and sustained family violence by the appellant, which has left her traumatised and caused significant emotional damage to the children and has ruined their relationship with the appellant [37]. The appellant made a number of criticisms of the reliability of the respondent's evidence in relation to those matters. The appellant also submitted that the respondent's omission to call her parents (who lived with the parties for 22 months) as witnesses on the subject was significant.
43 Although the primary court expressed reservations about both the reliability of the appellant's evidence [132] - [147], and the respondent's evidence [148] - [156], on balance, the primary court was satisfied that the appellant had engaged in family violence (not necessarily in the sense of physical violence) during the course of the relationship [161]. In reaching that conclusion, Magistrate Moroni not only had regard to the respondent's evidence, but also to the fact that in this respect, it was largely corroborated by the statements of the children given to third parties [162]. The primary court did not identify the precise extent to which the appellant had engaged in family violence, but concluded it was not necessary to 'quantify' with precision exactly how much family violence the appellant engaged in for the court's purposes [163] - [164].
44 The magistrate also concluded in the circumstances of the case (the parents being elderly and the respondent's father having experienced a serious assault), that the omission to call the parents was reasonable and no adverse inference against the respondent could be drawn in that regard [158].
45 Magistrate Moroni observed that it was common ground that the children should live with the respondent [212].
46 The primary court referred to s 70A of the FCA and concluded that the presumption of equal shared parental responsibility did not apply due to the court being satisfied that there were 'reasonable grounds to believe that the Applicant has engaged in family violence on at least one occasion' [63] - [74]. Magistrate Moroni observed that even if there were a presumption of equal shared parental responsibility, the irretrievably damaged relationship between the applicant and respondent meant that it would be impossible for the parties to discharge the obligations that would be created for them under s 89AC of the FCA if an order for equal shared parental responsibility were to be made [75] - [81], [213]. For this reason, he concluded it was not in the best interests of the children for the parties to have equal shared parental responsibility and made an order for sole parental responsibility to be held by the respondent [75] - [83], [212] - [215].
Findings as to the evidence of the children
47 Magistrate Moroni said that he was not inclined to reject any of the material conclusions reached by the single expert. He observed that the single expert witness was very strong under cross-examination; that the relationship between the children and their father was extremely negative; and that they had expressed unequivocal views that they wished to have nothing at all to do with the appellant [211].
48 Magistrate Moroni considered the appellant's expert witness's critique of the single expert witness report. He noted that the appellant's expert witness makes it clear that his critique did 'not indicate that the conclusions of the single expert report [were] either correct or incorrect'. He said that notwithstanding the appellant's expert witness's concerns, 'there does not appear to be a suggestion that the single expert has incorrectly recorded the views of the children' [202] - [203].
49 Magistrate Moroni's key findings with respect to the children's evidence were that:
(a) the children's stated and recorded views represented their true feelings, and that the children were mature enough to express a view which ought to be respected by their parents and be accorded appropriate weight by the court [173], [211];
(b) given the children's age, their views should be accorded significant weight [219], [233];
(c) the children had witnessed the assault upon their grandfather (in some capacity, whether it be directly, or the immediate aftermath of the assault [172], [180]) and that the children had been very deeply affected by the experience [180];
(d) the children had witnessed the appellant behaving in an intimidating and abusive fashion whilst they were living with him [172], [199] - [200];
(e) regardless of the particular causes, the fact is that the children had both expressed a very strong and unequivocal view not to have any contact whatsoever with the appellant [223];
(f) at the present time the children have an extremely poor relationship with the appellant and hold him in low regard [220]; and
(g) on the evidence presented, it appears to be highly unlikely that the respondent could compel the children to attend counselling (to reintroduce the appellant into their lives) or persuade the children to spend time with the appellant on a supervised or any other basis [228].
Magistrate Moroni's conclusions
50 Magistrate Moroni concluded that the court should not make orders requiring the children to have contact with the appellant [217]. Magistrate Moroni placed great emphasis on the age of the children involved (15 and 13 years old) and the weight that should therefore be accorded to their 'strong and unequivocal' views 'not to have any contact whatsoever with the applicant' [223], [233]. He also noted that requiring the children to attend counselling to restore the appellant's relationship with them would entail them having to relive many unpleasant events from the past and would require them to tell their story, yet again, to another stranger [232].
51 Magistrate Moroni also noted that, from a practical perspective, it would be difficult to see how the respondent could compel the children to act in a way which would be consistent with the terms of a court order made against their strongly expressed wishes [219]. The most likely outcome of such an order would be that the children would not engage in the process, resulting in the institution of contravention proceedings against the respondent pursuant to div 13 pt 5 of the FCA [230]. In this context, Magistrate Moroni considered s 66C(3)(l) of the FCA which refers to the court considering whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children [224].
52 Magistrate Moroni found that any continuation of the legal proceedings between the parties in respect of the welfare of the children could not possibly serve to advance the children's best interests [231].
53 Magistrate Moroni addressed the single expert witness's evidence and each of the appellant's expert witness's criticisms in his reasons explaining why he did not find that they adversely affected the evidence given by the single expert witness. Given the significance of the findings in relation to the expert witnesses for the purposes of this appeal, it is appropriate to set out those findings in full, below.
Magistrate Moroni's findings in relation to expert evidence
54 Magistrate Moroni found:
The evidence of the single expert is compelling.
The single expert has interviewed the parties and the two children and his report addresses the terms of reference which were agreed by the parties and which formed the substance of the consent order made on 21 March 2013 when the ICL's application for the appointment of a single expert was dealt with by another Magistrate of the Court.
The single expert is a social worker and not a clinical and forensic psychologist, but this was well known to the parties when the orders of 21 March 2013 were made.
Without oversimplifying the conclusions of the single expert, he has found that the children have an extremely damaged relationship with the Applicant and do not wish to have any contact whatsoever with him under any circumstances.
The reasons given by the children in support of their stated views are set out in the single expert's report, but essentially, the children reported to the single expert that they had witnessed the assault upon their grandfather and that they had witnessed the Applicant behaving in an intimidating and abusive fashion whilst they were living with him.
The single expert was cross-examined at some length by the Applicant but he did not shift ground on any material issue. The single expert is convinced from his interview with the children that their stated and recorded views represent their true feelings. The single expert is also convinced that the children are mature enough to express a view which ought be respected by their parents and be accorded appropriate weight by the Court.
The Applicant clearly does not accept the conclusions of the single expert and it is his case that the Respondent has pressured the children into making statements which are adverse to him.
That is to say, the Applicant appears to accept that it is true that the children have made these various statements to the single expert and also to the other professionals who have interviewed them. The Applicant explained that the children have had to make these statements in order to 'survive' in the care of the Respondent and her parents.
The Applicant exercised his right to apply for an order permitting him to obtain a critique of the single expert's report, hence the involvement in the case of the Applicant's witness [the appellant's expert witness].
The Applicant and [the appellant's expert witness] are critical of the work of the single expert on a number of fronts.
Firstly, the Applicant is critical of the single expert for focusing unduly, in his eyes, on the assault of the Respondent's father.
The Applicant was keen to remind the Court that the presiding Magistrate in the criminal proceedings was not satisfied that the children actually witnessed the assault being committed and thus where, in the single expert's report, the children report actually witnessing the event, the Applicant says that this amounts to proof that the Respondent and her parents have brought undue influence to bear upon the children.
On the question of whether or not the children actually witnessed the assault of the Respondent's father, the Court is of the view that nothing much will really turn on that point. This is because, on either account of events, the children were in the home at the time when this assault was committed and they witnessed first hand, almost immediately after the assault, if not contemporaneously, the dramatic physical effect the assault had upon their grandfather. The children witnessed a lot of bloodshed and it is clear to the Court from the single expert's report that the children have been very deeply affected by the experience.
The fact that the Applicant maintains to this day that everyone is over-focusing on his assault of the Respondent's father simply reinforces the conclusion that the Applicant is yet to understand the seriousness of what he did and the effect that it has had upon others in the family, particularly the children.
Next, the Applicant was critical of the single expert for not exploring in greater detail the nature of his relationship with the children prior to the assault on the Respondent's father being carried out.
This particular challenge is more difficult for the Court.
On one view of it, the single expert has done the work which the Court required of him. That is to say, the second term of reference in respect of which the single expert was ordered to report was the relationship of the children with the Applicant, the Respondent and any other significant person.
Although the adjective 'present' is not contained in the relevant term of reference before the word 'relationship', it seems clear enough to the Court that what the single expert was being asked to report upon was the relationship between the children and the Applicant as it now stands.
When regard is had to the provisions of s 66C(3)(b) of the Act the statutory focus is also upon the present, rather than the past.
Again, it seems to the Court that the reason why the Applicant is disappointed that the single expert did not pay more attention to the question of whether or not he had a good relationship in the past with the children, as at least one of his lay witnesses has said, is again to help establish that the currently stated views of the children are all a product of manipulation and undue influence brought to bear by the Respondent.
It seems to the Court that when it is dealing with the views of teenage children, the focus does need to be upon the here and the now. The Court can only deal with the realities of any particular family situation as they are presented to it at trial. It is not possible for the Court to recreate the past.
Turning now to the evidence of the Applicant's expert [the appellant's expert witness], the first observation the Court would make is that it is satisfied that [the appellant's expert witness] is a well-qualified and well-meaning individual who was genuinely endeavouring to present a fair and balanced critique of the work of the single expert.
The major concerns expressed by [the appellant's expert witness] might be summarised as follows.
Firstly, [the appellant's expert witness] indicated that there ought to have been a full psychological assessment of each of the parties. In an ideal world, that would certainly be a desirable outcome.
However, the difficulty in respect of this challenge is that the parties well knew that the single expert they agreed to be appointed is a social worker and not a clinical and forensic psychologist. Thus, he is not qualified to carry out such an assessment and report upon it. That would explain why the terms of reference do not include a requirement to carry out a full psychological testing of each of the parties.
Secondly, [the appellant's expert witness] was somewhat critical of the relatively short time the single expert spent interviewing the children. However, this is a concern which is not shared by the Court.
It needs to be remembered that the single expert is the independent person who had to arrange the necessary interviews and actually had the opportunity to speak face to face with each child. The single expert was adamant that the children were distressed by the process and it seemed implicit in his evidence that he considered that to prolong the interview process would amount to a form of systemic abuse of the children. Certainly, the single expert is vehemently opposed to the prospect of the children being interviewed yet again by any other professional witness, as the Applicant is proposing. In all the circumstances, the Court is disinclined to be critical of the single expert for the choices he made in terms of the time he spent with each child.
Further, [the appellant's expert witness] is critical of what he describes as an omission in the report of the single expert to refer to relationship evaluation. [The appellant's expert witness] goes on to say that relationship evaluation will generally include observation of the children with each parent.
Again, this is a criticism which does not find favour with the Court.
The single expert is clear that both children wish to have absolutely no contact whatsoever with the Applicant. How then could the single expert be expected to arrange a meeting between the children and the Applicant and then conduct his assessment on how the children interacted with their father? That is, how could the single expert actually make this happen?
[The appellant's expert witness] also shares the Applicant's concerns that the single expert focused unduly upon the circumstances surrounding the Applicant's assault of the Respondent's father.
The single expert has noted some statements by the children which indicate that they were distressed by certain features of the Applicant's conduct towards them and in their presence well before the assault occurred. The children have made similar statements to [the DCP officer] and to their own counsellor [the children's treating psychologist].
So, it seems to the Court that there is adequate evidence to suggest that the Applicant's relationship with the children, prior to the assault, was not quite as good as he now asserts it to have been.
The Applicant produced a number of photographs of various happy family occasions involving the children and no doubt there were happy times during the course of the relationship. However, photographs can sometimes create a false impression or hide the truth and even the observations of good friends can be unreliable. The only people who truly know what actually goes on behind closed doors are those who are there all of the time.
As a final word on [the appellant's expert witness]'s evidence, it does need to be said that at paragraph 55 of his report [the appellant's expert witness] makes it clear that his current critique and analysis of the single expert's report does not indicate that the conclusions of the single expert are either correct or incorrect.
As the Court understood [the appellant's expert witness]'s evidence, notwithstanding his concerns over the methodology adopted by the single expert, there does not appear to be a suggestion that the single expert has incorrectly recorded the views of the children.
…
Notwithstanding the conclusions reached by each of the two expert witnesses called by the Applicant, the Court is not inclined to reject any of the material conclusions reached by the single expert. Indeed, the single expert was very strong under cross-examination that the relationship between the children and their father is extremely negative and they have expressed unequivocal views that they wish to have nothing at all to do with the Applicant [168] - [203], [211].
Orders made by Magistrate Moroni
55 Magistrate Moroni made the following orders:
1. The Respondent … have sole parental responsibility for the children [the daughter] … and [the son] … ('the children').
2. The children live with the Respondent.
3. The provisions of paragraphs 1 and 2 of the orders of the Court made on 26 February 2013 be and are hereby discharged.
4. The Australian Federal Police be requested to remove the said children's names from the Family Law Watch List operating at all international ports in Australia and the Respondent do supply the Australian Federal Police with a sealed copy of this order.
5. The Respondent have liberty to remove the children from the Commonwealth of Australia from time to time for the purpose of a holiday and to that end, the necessity for the consent of the Applicant … for the issue of a passport to the said children be dispensed with.
6. The said proceedings otherwise be and are hereby dismissed.
Statutory provisions
56 Some of the relevant statutory provisions have been referred to earlier in the course of these reasons. It is convenient, however, to set out s 66 and s 66C of the FCA at this point.
66. Object of Part and principles underlying it - FLA s 60B
(1) The objects of this Part are to ensure that the best interests of children are met by -
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests) -
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 as ratified by Australia at 17 December 1990.
66C. How a court determines what is in child's best interests - FLA s 60CC
(1) Subject to subsection (6), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2) The primary considerations are -
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in subsection (2)(b).
(3) Additional considerations are -
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; and
(b) the nature of the relationship of the child with -
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
and
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity -
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
and
(da) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; and
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
and
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; and
(f) the capacity of -
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs; and
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; and
…
(j) any family violence involving the child or a member of the child's family; and
(k) if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following -
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
and
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
(m) any other fact or circumstance that the court thinks is relevant.
57 An appeal lies to the Court of Appeal pursuant to s 210A(2) of the FCA:
In respect of the non-federal jurisdictions of the Magistrates Court an appeal lies from a decree of the court to the Court of Appeal, unless the decree is an interlocutory order.
58 This section only applies if the Magistrates Court is constituted by a family law magistrate: s 210A(1) of the FCA.
59 The making of parenting orders in respect of the children was an exercise of the of the non-federal jurisdictions of the Magistrates Court: s 36(1) - s 36(3) of the FCA . The Magistrates Court was also constituted by a family law magistrate. Thus, an appeal without leave lies to this court.
Grounds of appeal
60 The appellant's grounds of appeal may be summarised as follows:
1. The magistrate erred in law in failing, or failing properly, to take into account relevant matters and/or material considerations raised by the appellant's expert witness in relation to the single expert witness report.
2. The magistrate erred in law in finding that the single expert witness was qualified as an expert and therefore erred in admitting or placing reliance on the evidence of the single expert witness.
3. The magistrate erred in law in failing, or failing properly, to take into account relevant matters and/or material considerations in ordering that there be no restrictions on the issuance of passports and travel with respect to the children.
4. The magistrate erred in law in failing to determine the appellant's application for a contact order, particularly supervised visits.
Legal principles - appeal
61 The nature of the decision under challenge is relevant to the court's approach to the assessment of error by the primary judge: H v P [2011] WASCA 78 [47]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 (Allsop J) (as his Honour then was) (Drummond & Mansfield JJ agreeing) [24] - [25], [28] - [29].
62 It is unnecessary for present purposes to go so far as to determine that the decision under appeal is, or is sufficiently analogous to, a 'discretionary' decision so as to attract the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499; H v P [48]; compare Chapa v Chapa (2013) FLC 93-538 [42]. Nevertheless, the question of what is in the best interests of the children in a case such as this involves, at least, an evaluative judgment. It involves 'elements of fact, degree and value judgment' and draws upon the judge's experience and familiarity with the nature of the subject matter: see (albeit in the context of other legislation involving an evaluative determination) Fleming v Hutchinson (1991) 66 ALJR 211. Also, as French J (as his Honour then was) observed in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546, matters of evaluative judgment may be attended 'by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers' (556).
63 In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172, Kirby J referred to the 'difficult and evaluative decisions' which a court exercising family law jurisdiction has to make. His Honour observed:
The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
…
Inescapably … intuition plays a part in the ultimate decision. It will sometimes be hard to explain. An appellate court will recognise the fact that it is dealing with the orders and reasons of a specialist judge [2], [186]. (footnotes omitted)
64 Those observations have equal application to decisions involving the children of de facto partners under the FCA.
Disposition
Ground 1
65 In ground 1, the appellant alleges, in effect, that the primary court erred in not giving sufficient weight to the criticisms made by the appellant's expert witness of the single expert witness.
66 The particulars of ground 1 are as follows:
(i) Before the opening statement of the three day trial, the appellant (father) asked the Magistrate [if] he would consider an alternative report based on the findings in the critique and on the [single expert witness] being biased. Magistrate dismissed the request.
(ii) The Magistrate overlooked the Orders set before Principal Registrar Monaghan on 21/03/2013. This is relevant as significant others such as the maternal parents.
(iii) Magistrate indicated that both parties [knew] that the Single Expert Witness … was a Social Worker and not a Clinical and Forensic psychologist, dismissing the fact that the [single expert witness] lacked the expertise required for this complex case.
(iv) Magistrate indicated that the children have an extremely damaged relationship with the appellant … without the evidence to substantiate this claim.
(v) Magistrate indicated that the appellant … does not accept the children's statement and that they were pressured in providing the statements. The Magistrate dismissed that the expert witness report did not explore these allegations.
(vi) Magistrate indicated that the appellant … and [the appellant's expert witness] … was critical on a number of fronts, and dismissed the findings.
(vii) Magistrate indicated that the appellant … is critical of the work of the single expert for focussing unduly, in his eyes, on the assault of the Respondent's father. Again the Magistrate dismissed the findings confirming that the single expert focused on the assault and not on the relevant matters.
(viii) Magistrate indicated that he was not satisfied with the presiding Magistrate (criminal proceedings, Magistrate Bayly) that the children actually witnessed the assault being committed.
(ix) Magistrate indicated that '… the children witnessed a lot of bloodshed and it is clear to the Court from the single expert's report that the children have been deeply affected by the experience …'. Magistrate did not take into account the findings by Clinical Psychologist, [the children's treating psychologist].
(x) Single Expert Witness … admitted to not referring to Clinical Psychologist['s] … report. He further indicated that his views are not consistent with the treatment report. It is noted that [the single expert witness]'s report is biased on best interest in the children and not a treatment report.
(xi) Magistrate indicated that the appellant's … past relationship with the children doesn't count for the present and that there [sic] is not possible for the Court to recreate the past.
(xii) Magistrate indicated that single expert witness is '… not qualified to carry out such an assessment and report on it …' and '… that would explain why the terms of reference to not include requirement to carry out a full psychological testing of each parties.
(xiii) Magistrate indicated that the court does not share the same views of [the appellant's expert witness] with reference to the flaws and biases in the single expert witness report. Despite the Magistrate or the Court not sharing the same view as [the appellant's expert witness], despite [the appellant's expert witness]'s experience in this field, [the single expert witness]'s lack of experience in the field and the number of flaws found.
(xiv) [Single] [e]xpert witness … indicated that it was not essential to interview the paternal grandparents, who reside with the respondent … and the children. The maternal parents are significant others and are important to address the terms of reference.
(xv) [Single] [e]xpert witness … indicated that whilst the son … said that he had not seen 'anything like that before' (refers to the night of the assault - criminal proceedings where the children saw the maternal father in law after he was assaulted), [the single expert witness] reported that [the son] meant, '… What I think … [he] was saying …' [Single] [e]xpert witness … did not explore this fact, but rather made a subjective decision that the children had witnessed and experienced violence.
Particular (i)
67 As to particular (i), the following exchange occurred near the commencement of the hearing before Magistrate Moroni:
The appellant: Okay. The first, Your Honour … and procedural flaws found in the report that underpin the conclusion and the recommendations made in the report. I request that an alternative report is prepared by a clinical or forensic psychologist to determine the best interests of the children in this case.
His Honour: All right. Well, the difficulty with that request is that it would mean adjourning the trial and I'm not sure that's in everybody's interests to adjourn the trial. I'm not sure it's in the interests of the children to keep the case going on and on. Now, I appreciate you've probably done your best to get this critique but you've - I think you've submitted that the report of [the single expert witness] is fl[a]wed but that's not yet established. That's only - you know, that's for the court to determine when they - when the evidence is finished.
So we actually have to have the hearing before I could be satisfied that [the single expert witness]'s report is flawed but [the single expert witness]'s report is only one part of the - one part of the evidence. It's an important part but the case doesn't rise and - and doesn't completely stand or fall on [the single expert witness]'s evidence - - -
The appellant: I understand that.
His Honour: … but it is important.
The appellant: Yes. I understand, your Honour, but the defence is only based on that report and that report - - -
His Honour: I think it's based on more than that. It's based on the evidence of the respondent herself.
The appellant: Okay.
His Honour: But - and as I say, if there was to be an adjournment, it would be for quite a long time. You've waited a long time for this trial.
…
The appellant: Your Honour, when I was in front of Magistrate Stewart, Magistrate Stewart was (indistinct) to the new report but because the lawyers objected strongly and I didn't have [a] lawyer, she told me I don't have to speak, she has got enough evidence. So she ordered a critique of the report which I have from [the appellant's expert witness] and she said, 'We're going to start with a critique and then we can follow with a report'.
His Honour: Well I'm not sure what was said. I haven't seen the transcript and there may be some misunderstanding or some mis-communication but at this stage the court doesn't have a preference for [the appellant's expert witness]'s evidence or for the [single expert witness]'s evidence. I haven't seen - I haven't heard them answer questions yet so let's see what they say when they're tested out.
…
His Honour: Yes. Okay. Well, the case is now two and a half years old and I think, really there has been enough time for this work to have been done, so I think, really today is the day, subject to what other people say about adjournment of the proceedings …
The appellant: Yes, I know, your Honour, but I - if the trial continues without an alternative single expert witness report, I believe the outcome will be influenced by misleading and incorrect information that has been presented in the original single expert witness report.
His Honour: Yes. All right. But that - doesn't that depend on what the court makes of the single expert's report and your submission assumes that the court is going to reject what the [single expert witness] says, and it might, it might not. We don't know until the evidence is all finished, until the whole evidence is finished.
…
[Counsel for the respondent]: I've had … discussions and I have instructions. We oppose any application - - -
His Honour: Okay. All right.
[Counsel for the respondent]: --- for an adjournment.
His Honour: Okay. Well you don't need to say anymore … Well, look, the respondent doesn't agree to it being adjourned. She wants the case dealt with. As I say, the case has been on foot for two and half years. I think everybody has had enough time to get ready so - - -
The appellant: I understand and agree with the law, your Honour, but it's time for the justice and there's no reason for me not to see the children.
His Honour: All right. Well that's what we're here to determine (ts 19 - 22, 24/02/14).
68 There is no error disclosed in the magistrate's approach. Nor has the allegation of bias upon which this ground is premised, been established. No error is demonstrated with respect to particular (i).
Particular (ii)
69 Particular (ii), according to the appellant's submissions, is to the effect that the magistrate overlooked the fact that the single expert witness failed to comply with order 1(b) of the orders of 21 March 2013 in that he failed to interview the respondent's parents with a view to ascertaining the relationship between the children and the respondent's parents. Reference was also made to the appellant's expert witness's critique in subparagraphs 6 and 7 of par 19 of the appellant's expert witness's report and par 21 of the same report. In those paragraphs, and par 20, the appellant's expert witness stated:
[19] 6. There is no analysis of collateral information.
[19] 7. I note that the Terms of Reference … begin with the item, 'The Relationship between the Applicant and the respondent'. I note that the Terms of Reference normally applied in matters before the Family Court of Western Australia involve a series of items includ[ing] the following:
1. Full Psychological Assessment in relation to the mother including to [sic] but not limited to her personality;
2. A Full Psychological Assessment in relation to the father including but not limited to his personality[;]
3. The degree to which it may be ascertained of the psychological state and health of the children.
20. These factors have not been completed in these Terms of Reference. I can only assume that either the Examiner has been unable to do so because the Examiner is not a Psychologist or that aspect of the Evaluation was not fully undertaken. Additionally other issues such as 14, the extent to which any of the children's wishes or attitudes have been influenced by the mother, father and any other significant adult has not been addressed.
Whether either adult has consciously or unconsciously alienated the children from any person [sic].
21. Again it is uncertain why this Term of Reference has not been addressed, as it is possible that this has not been fully addressed. The issue has been touched on in certain ways in the report but not exclusively addressed in the conclusions despite the fact that this is a central issue in this case as it is in many Family Court matters. More generally with respect to the Terms of Reference while other Terms of Reference appear to be covered, these appear not to be covered in the format normally required by the Family Court of Western Australia. This may represent a minor issue and may be fact to be commented on directly by the Court, taking into account the possibility that the terms of reference may not be considered mandatory for Single Expert Report writers to follow exactly. Nevertheless in this case I consider that these omissions are noteworthy.
70 In relation to this particular of the appellant's first ground of appeal, the single expert witness addressed, in cross-examination, the contention that his report was defective by omission by not having interviewed the grandparents:
Why didn't interviews have parent - have parent's significant others? --- Why didn't I interview the mother's parents?
Yes? --- I didn't think I needed to interview the mother's parents in order to answer the terms of reference - for the report. If the children had been, for example, ambivalent about what they had addressed or their views or the reasons for why they wanted - what they wanted were a bit unconvincing I would have been more curious than I was in this case but the possibility that I think you entertained that maybe the children had been influenced to perceive things which had occurred which, in fact, they hadn't witnessed and weren't quite what they were presenting them to be. So if, yes, I, because of the clarity and - and intensity of the children's views - and wishes and the reasons they gave for those I didn't think it was necessary to explore other people's views. Invariably in assessing a family there are more members in a child's social landscape than I have time to interview and my decisions about who I speak to and for how long and how I'm going to go about doing that are decisions I make as I go along based on the documents that were sent to me and the evidence in those documents, and very strongly by, in this case, what the children said in their presentation as I just explained to you (ts 58, 24/04/14).
71 Paragraph 1(b) of the 21 March 2013 orders did not in terms require the single expert witness to interview 'significant' others, but to 'inquire into and report on' the relationship between the children and 'the Applicant, the Respondent and any other significant person'. It has not been shown that there was any breach of par 1(b) of the orders of 21 March 2013 by the single expert witness. Even if par 1(b) of the 21 March 2013 orders required the single expert witness to interview the children's maternal grandparents, rather than gauge the children's attitudes by reference to interviews with the appellant, respondent and the children themselves, that on its own does not demonstrate any material error by the primary judge in concluding that it was not appropriate to make orders requiring the children to spend time with the appellant.
72 As to the matter in par 6 of the report, the appellant's expert witness referred to 'collateral information' in two other parts of his report. The first was in par 49 where he referred to the 'lack of reference to collateral information that can provide information about the family matter', but without giving details of what he had in mind. Secondly, in par 50 he referred to 'the children's mental health issues [were] not fully explored and in particular collateral information regarding the children's mental health provided by [the children's treating psychologist] [was] ignored or overlooked'. Insofar as this particular of the appellant's first ground of appeal ultimately rests upon the appellant's expert witness's contention that the children's treating psychologist's evidence had been overlooked, that allegation does not assist the appellant. That point is addressed directly in relation to particular (ix) below.
73 As to the matters in pars 7, 20 and 21 of the appellant's expert witness's report, the appellant's expert witness seems there to be criticising the terms of reference in the orders made on 21 March 2013, rather than specifically contending at this point that the single expert witness did not comply with those orders. The appellant's expert witness's criticism that the single expert witness did not address matters which did not form part of his terms of reference provides no basis for concluding that the primary judge had erred in his evaluation of the appellant's expert witness's report, or in his evaluation of the evidence of the single expert witness in the context of the appellant's expert witness's report.
74 Particular (ii) does not demonstrate error by the primary court.
Particular (iii)
75 In relation to particular (iii), the appellant's expert witness plainly was of the view that the parties and the children should be examined by a psychologist, and the magistrate evidently accepted that in an 'ideal world' such evidence would have been available. However, the appellant's expert witness had himself expressed no views about the best interests of the children but had confined his report to matters which he considered went 'to the weight that could be placed on' the single expert witness's report (see [36] - [37] above). Any psychological examination of the appellant, respondent and the children would have required an adjournment of the proceedings and further delay, in circumstances where the primary court was concerned that there had already been considerable delay in the resolution of the disputes between the parties. In this context, it was material for the magistrate to observe that orders had been made by consent for the appointment of the single expert witness, in circumstances where the parties were aware that he was a social worker and not a clinical or forensic psychologist.
76 Also, the magistrate was entitled to accept the views of the single expert witness, and the submission of the ICL, that no real advantage would be served by a psychological assessment and any advantage that might be obtained would be outweighed by the disadvantages associated with that course.
77 Moreover, the magistrate did not reject the appellant's expert witness's evidence simply on the basis that the parties had agreed on the identity and qualifications of the single expert witness. Magistrate Moroni considered the substantive criticisms raised by the appellant's expert witness in his report and gave reasons for rejecting them.
78 The appellant also referred to a document headed 'Australian Association of Social Workers Code of Ethics (2010)', in particular pars 3.3 and 5.1.5b, which state, in effect, that social workers must behave ethically and within their areas of competence. Even if this document were relevant, there is nothing to indicate that the single expert witness acted unethically or outside of his areas of competence.
79 Particular (iii) does not establish error.
Particular (iv)
80 In relation to particular (iv), the appellant alleges that there was no evidence that the appellant's relationship with the children was extremely damaged. The appellant referred to the cross-examination of the single expert witness in the following exchange:
Did you ask them anything positive about my relationship with them? --- I didn't ask them anything positive or negative about it, I asked them for their impression in an open way, which is - and the reasons for that are described in the methodology, and the notes on methodology I attached to my report.
Okay. Do you remember asking me a specific question about my relationship with the children, about general question, for example, around, let's say, allergies? --- I can't remember asking you about allergies. I can remember asking you to rate yourself as a parent and to describe your impressions as to what you were doing that would help me understand why you rated yourself so highly as a parent.
…
Did you talk about the children going together as a family or the first 10 years['] experience with me? --- I can't recall that, no. I can't recall definitely discussing that with you (ts 69, 24/04/14).
81 The appellant also referred to the appellant's expert witness's critique whereby he indicated 'matters of the parent-child relationships have not been dealt with explicitly, and there is no data presented which fully examines the nature of relationship between the parent and the children. Additionally, there is no evidence that [the single expert witness] has fully explored the nature of historical relationship between the children and the parents, particularly prior to the incident'. The appellant also submitted that two witnesses he called provided affidavit evidence indicating that the appellant had a positive relationship with the children.
82 There is no substance to this point. It is not correct to say that there was no evidence upon which the magistrate could find that the appellant's relationship with the children was extremely damaged. The matters to which the appellant referred might have provided the appellant with some grounds for the contention that he did not have a damaged relationship with his children. However, the magistrate was required to consider all the evidence adduced at the trial, and those matters had to be weighed in the context of all of the evidence in the case on that topic. Having regard to the matters set out in [16] - [26] and [31] - [33] above, there was ample evidence for the magistrate to conclude that the appellant's relationship with the children was extremely damaged.
Particular (v)
83 In relation to particular (v), the appellant referred to the appellant's expert witness's critique in par 34 of his report to the effect that there was 'insufficient focus on and therefore insufficient data about the extent to which family processes have influenced the children's view of their father'.
84 As the appellant's expert witness had indicated, his criticisms only went to the question of the 'weight' that might be given to the single expert witness's evidence. He offered no 'data' about the extent (if any) to which family processes had influenced the children's view of their father. Further, the primary court found that the single expert witness's evidence was 'compelling' [168]; that the single expert was cross-examined at some length but did not shift ground on any material issue [173]; and that the single expert witness was 'very strong under cross-examination' [211].
85 The single expert witness's evidence included the following in chief:
When you interviewed the children, did they come across to you as being genuine or come across as they may have been influenced by their mother or, say their father in the views that they were taking? --- No, they came across as very genuine. I reiterate that [the daughter] was anxious and appeared anxious, you know. She was - look I can't recall exactly what signs of anxiety she displayed but I do remember her, as I said, just recently being very resistant to even speaking with me and her aspect as she was telling me what she did in our interview was consistent with what she said, so, about how she felt. So she - she left me in no doubt that what she was drawing on what she had witnessed and experienced rather than stories or comments that other persons such as the mother might have told her or made to her (ts 56 - 57, 24/04/14).
86 The appellant did not put directly to the single expert witness in cross-examination that the children's views were influenced by the mother or the grandparents. However, as noted earlier, that was his position when he was giving evidence.
87 In cross-examination of the single expert witness by the respondent's counsel, the following exchange occurred:
Now, [the appellant] will say or has said that someone has got into [the son's] ear about what did or didn't happen. And he, effectively, is saying to the court that [the son] is toeing the party line, if you know what I mean. What did you do to satisfy yourself that [the son] was speaking truly and wasn't just parroting what someone else had said to him or wanted him to say? --- I didn't ask him leading questions. I asked him for his impressions and the reasons for those. When he told me the reasons I - like, if he said his dad was mean I, you know, I would ask him, 'Like how do you know your dad is mean? Where does that idea come from? Is that something you have discussed with other people? Did anyone help you decide he was mean or did you decide on your own? What sorts of things have you experienced that made you think "my dad is mean?"' And he would tell me. He would say, you know 'no one has spoken to me about this. I have made this up myself. This is the sorts of experiences that I have had[']. I reiterate that I am alarmed that … the father instead of taking stock of what he has done, even if he is not entirely responsible, admitting to his portion of responsibility … he is also blaming the victim of his apparent abuse on his own actions, which creates a high risk of recurring violence. But in terms of this, is there an impact on the children, he is implying that what he did was okay and that they are, therefore, wrong to feel what he did was wrong (ts 78, 24/04/14).
88 No error is demonstrated in relation to particular (v).
Particular (vi)
89 In relation to particular (vi), the appellant referred generally to the appellant's expert witness's criticisms of the single expert witness's report.
90 The magistrate addressed the criticisms of the appellant's expert witness in his reasons for judgment. In the end, he was not satisfied that the appellant's expert witness's criticisms materially affected the conclusions reached by the single expert witness and advanced by the ICL. This particular does not identify error by the primary court.
Particular (vii)
91 In relation to particular (vii), the appellant referred to the appellant's expert witness's criticism to the effect that the single expert witness had focused 'unduly' on the assault, and insufficiently on the relationship between the children and the appellant, or the children and other members of the family before this event.
92 This particular does not identify or establish error. On the evidence before the magistrate, the assault of the maternal grandfather was plainly an incident of significance in their lives. Moreover, the magistrate evidently considered the significance of the assault in the broader context of the evidence as to the appellant's conduct towards his de facto partner and his children. There was evidence, from the children and the respondent, to the effect that the appellant, prior to the assault, had engaged in emotional and verbal abuse. The magistrate plainly took this into account, as well as the serious assault on the maternal grandfather. The weight to be attached to the assault, in the broader context of that other evidence, was a matter for the magistrate.
93 As noted earlier, in the list of materials which the appellant's expert witness said that he had reviewed for the purpose of his report, he did not list the report of the DCP officer (GB 59 - 60).
Particular (viii)
94 In relation to particular (viii), the appellant referred to the fact that Magistrate Moroni was not satisfied that the children actually witnessed the assault being committed.
95 This particular discloses no error. The primary court found that even if the children had not actually seen the appellant committing the assault on the grandfather, they nevertheless were in the house at the time. They had witnessed 'a lot of bloodshed' and had witnessed the 'dramatic physical effect the assault had upon their grandfather' [180].
Particular (ix)
96 In relation to particular (ix), the appellant contended that:
(a) Magistrate Moroni did not take into account the findings of the children's treating psychologist, to the effect that the son and the daughter had improved to the point where they no longer met the diagnostic criteria for any psychological or psychiatric disorder; and
(b) the appellant's expert witness's critique was to the effect that the focus on the trauma and violence on the children 'was not supported by data from other sources'.
97 In relation to point (a), the children's treating psychologist's report in relation to the son concluded:
[The son] reports improvement across most of his original presenting issues and they no longer appear to detract from his day to day functioning. I note that [he] still reports sleep difficulties at times and continues to maintain he wants no contact with his father. This improvement is supported by reports from his mother. At this point [he] no longer meets the diagnostic criteria for any psychological or psychiatric disorder. As such, no further sessions are scheduled at this time, though [he] and his mother are aware that they are free to re[-]refer at any stage in the future should they wish (GB 97).
98 In relation to the daughter, the children's treating psychologist reported:
[The daughter] reports improvement across all of her original presenting issues and notes they no longer detract from her day to day functioning. She does report, however, that she still has occasional nightmares and anxiety pertaining to the witnessed event and she still maintains she wants no contact with her father. This improvement is supported by psychometric assessment, clinical observation and reports from her mother.
At this point [she] no longer meets the diagnostic criteria for any psychological or psychiatric disorder. As such, no further sessions are scheduled at this time, though [the daughter] and her mother are aware that they are free to re[-]refer at any stage in the future should they wish (GB 98 - 99).
99 Whilst the children had improved to the point where they no longer met the diagnostic criteria for any psychological or psychiatric disorder, the children's treating psychologist's reports nevertheless indicated that there remained a degree of fragility with the children, and that they were continuing to express the desire to have no contact with their father.
100 The real question for present purposes is ultimately whether it can be shown that Magistrate Moroni erred in giving the credence he did to the views of the single expert witness in the context of his evaluation of the evidence and the case as a whole. In all the circumstances of the case, and when the evidence is considered as a whole, it was open to the magistrate to accord the weight which he did to the evidence of the single expert witness, despite the absence of a reference to the report of the children's treating psychologist.
101 As to the appellant's expert witness's critique, the question of whether there was sufficient 'data' of violence and abuse was ultimately a matter for determination by the primary court, both in connection with the broader question of what was in the best interests of the children, and in relation to the specific question of the reliability of the evidence of the single expert witness. The magistrate was satisfied that there had been a history of at least emotional and verbal abuse, both with respect to the children and to the respondent. That conclusion was open to the magistrate. As noted above, the appellant's expert witness does not appear to have reviewed or referred to the report of the DCP officer in relation to his views as to an insufficiency of 'data' on this topic.
102 The appellant has not established error in relation to particular (ix).
Particular (x)
103 In relation to particular (x), the appellant alleged that the single expert witness's report was biased and that he failed to include psychological reports on the children.
104 The substance of those matters were put to the single expert witness in cross-examination:
When you interviewed them did you look for all the aspects of violence? --- What do you mean all of the aspects of violence?
When you interviewed the children did you look at all of the aspects of violence or you just made - made assumption? --- Well, I didn't make assumptions or look at all aspects of violence. I interviewed the children about their views and the reasons for those. And it would be inappropriate for me to have a list of all various types of violence and to ask the children about each one of those in particular, if that's what you are implying I should have done. I don't agree with that assumption.
But … you said the children in those sides were emotionally mature. But you say they have been emotionally traumatised? --- Yes.
Well, when you see them, how they were? --- Well, someone can be adequately intellectual and emotionally mature to be interviewed and tell the truth on the one hand and be someone who has experienced trauma on the other. They're not mutually exclusive.
…
If you say the children [had] been traumatised why didn't you use psychometric tools to verify that? --- Because I don't need to use psychometric tools to understand a child has been traumatised and it's a very odd thing for any competent therapist to use psychometric tools or testing on children who have been traumatised.
…
So what do you base your findings on? --- On what the children say.
…
To make the report valid? --- I base it on the children telling of their experiences. To make it valid I suppose I would consider the consistency between what different people say, the evidence supporting it, the allegations, you know, other evidence apart from claims by the children, the things in my report. You know, the signs of having been exposed to violence and so on. So all these things together go towards building my impression about what happened and the risks of the children being harmed in the future (ts 61 - 62, 24/04/14).
105 Also, in cross-examination the single expert witness was asked by the appellant:
You - you could have asked the grandparents how they are coping? - How they are coping?
How the children are coping because they live with the children in my - in my home for last five years? --- Yes. I could have asked the grandparents how the children were coping. I, yes - I didn't think I needed to do that though but I could have done that. Yes.
So we need it to happen, did you make up your mind before you interviewing them all? --- No. I didn't make up my mind about anything before interviewing people. I made a conscious effort to remain open minded about the views of every person I interviewed and I'm - I'm satisfied that I achieved that intention of being impartial and open minded (ts 58 - 59, 24/04/14).
106 The question of whether the single expert witness's report was biased was a matter raised by the appellant in the primary proceedings. As indicated earlier, the primary court was impressed with the evidence given by the single expert witness, including under cross-examination. Insofar as this particular repeats the allegation that psychological testing was necessary, the observations made in relation to particular (iii) above apply equally here.
107 Error has not been established in relation to particular (x).
Particular (xi)
108 In relation to particular (xi), the appellant submitted:
11. Magistrate did not take into consideration the appellant's … past relationship with the children and said that the past doesn't count for the present.
(i) Refer to Critique paragraph[s] 29 - 30 '… matters of child-parent relationship have not been dealt with, no information on the current relationship quality between the parents and children …'
(ii) Refer to Critique paragraph 32 '… no evidence to show that the children have been asked about their relationship with their mother (respondent) …' and 'no evidence that the relationships in the family have been explored, and as such there is insufficient data to allow conclusions regarding what is a central factor in the family report, that is, the nature of the relationship between the children and the parents …'.
The single expert has noted some statements by the children which indicate that they were distressed by certain features of the Applicant's conduct towards them and in their presence well before the assault occurred. The children have made similar statements to [the DCP officer] and to their own counsellor [the children's treating psychologist].
So, it seems to the Court that there is adequate evidence to suggest that the Applicant’s relationship with the children, prior to the assault, was not quite as good as he now asserts it to have been.
The Applicant produced a number of photographs of various happy family occasions involving the children and no doubt there were happy times during the course of the relationship. However, photographs can sometimes create a false impression or hide the truth and even the observations of good friends can be unreliable. The only people who truly know what actually goes on behind closed doors are those who are there all of the time.
…
As the Court understood [the appellant's expert witness]'s evidence, notwithstanding his concerns over the methodology adopted by the single expert, there does not appear to be a suggestion that the single expert has incorrectly recorded the views of the children [199] - [201], [203].
110 Overall, we are not persuaded that when the primary court's reasons are read as a whole, there has been any error, or at least any material error, with respect to particular (xi).
Particular (xii)
111 In relation to particular (xii), the appellant alleged, in effect, that the magistrate erred by failing to take into account the appellant's expert witness's report (par 28) that the time spent by the single expert witness in interviewing the children was insufficient, and that there had 'been insufficient depth and breadth in each of the evaluations'.
112 The appellant's expert witness in an earlier part of his report (par 24) stated that '[t]here are no agreed upon standards with respect to issues of time and length of interviews. In part, the reason for this variation is that individuals differ in the process of the interviews.' The magistrate considered the appellant's expert witness's criticism in relation to the time spent interviewing the children. The magistrate's findings in this regard are set out at [193] - [194] of his reasons. No error is disclosed in the reasoning of the primary court in this regard.
Particular (xiii)
113 In relation to particular (xiii), it is alleged that the magistrate failed to take into account a number of the views expressed by the appellant's expert witness. In this regard, the appellant referred to pars 42 and 43 of the appellant's expert witness's report which stated:
It is likely in this matter, based on this report, there is confirmatory bias, where a hypotheses [sic] regarding the nature of the relationships between the children and the parents, and in particular, the children and the father, has been established through the information concerning the father's violence against the maternal grandfather and the accounts of violence against the mother.
The apparent confirmatory bias relates to the issue of the relationship between the children and the father. While these relationships in fact may be as described by the Examiner, there is a lack of testing of this hypothesis, specifically, that there is a poor relationship between the children and the father. Based on the report, there appears to be an assumption by the Examiner that the relationship between the children and the father was chronically weak and troubled. Alternative hypotheses have not been explored … Additionally, as the behaviour of the children with their father was not observed, the hypothesis regarding the relationship was not adequately tested.
114 Reference was also made to pars 44 - 45 of the appellant's expert witness's report:
It would appear that there are insufficient data to support the conclusions arrived at … This issue relates primarily to the issue of the violence …
In this matter there is a reliance on the statements made by the mother to a greater degree and statements provided by the children, without inclusion of broader sources of data, and without adequate testing of alternative hypotheses.
115 Reference was also made to par 50 of the appellant's expert witness's report where he said that 'children's mental health issues are not fully explored'. Reference was also made to par 33 of the appellant's expert witness's report to the effect that 'individual interviews with the children is overly specific, does not provide adequate context to understand the child's normal psychological functioning, largely because of an apparent singular focus on the assault'.
116 This particular raises again the allegation of bias, the alleged insufficiency of 'data' upon which the single expert witness's conclusions were based, and the alleged inappropriate emphasis on the assault on the grandfather. These matters effectively seem to repeat allegations made in earlier particulars. For the reasons given in relation to previous particulars, this particular does not point to error by the primary court.
Particular (xiv)
117 In relation to particular (xiv), the appellant again alleged, in effect, that the single expert witness should have interviewed the children's maternal grandparents.
118 This again raises one of the matters referred to in particular (ii). For the reasons given earlier, the appellant has not established error.
Particular (xv)
119 In relation to particular (xv), the appellant referred to pars 37 - 40 of the appellant's expert witness's report to the effect that there was insufficient data to support conclusions concerning chronic exposure to violence. The single expert witness presumably used the word 'chronic' in its conventional sense of continuing over a long time. In par 40, the appellant's expert witness said that there were no statements reported by the daughter which would allow the conclusion that there was chronic violence and abuse. He continued:
This does not exclude the possibility that there was such violence and abuse, however based on the information provided from the interviews, it is questionable that these data from the children's interviews can be used to support the notion that there was chronic violence, and it is not clarified how the Examiner has arrived at conclusions in this issue. In the Methodology section, page 5, it is indicated that there has been an analysis of the probability that the allegations by the mother are true, and so it is possible that the Examiner has drawn on the account from the mother rather than the data of the children.
120 Again, this particular raises the question of the appellant's expert witness's criticism concerning the alleged absence of 'data' in relation to exposure to chronic violence. It is to be recalled that the single expert witness (GB 125) used the word 'violence' as encompassing more than physical assault (see [31] above) in his report.
121 As noted above, the question of whether and to what extent there was family violence in the broader sense under the FCA as well as physical abuse, were matters for the magistrate having regard to the evidence as a whole, including the evidence of the respondent and the evidence from children, as relayed by others including the single expert witness, the DCP officer and the children's treating psychologist. The magistrate concluded that there was family violence at least insofar as there was the serious physical assault on the grandfather, as well as previous verbal or emotional abuse. Those findings were open to the magistrate. The appellant has not established error by the primary court.
Ground 2
122 The appellant contends in his submissions that the single expert witness was not a qualified expert. First, he submitted in effect that the appellant's expert witness was a better qualified witness, than the single expert witness, and that accordingly the single expert witness was therefore not a qualified witness (WB 24 - 25).
123 Secondly, the appellant contended, in effect, that the single expert witness could not have been a properly qualified expert witness if a more qualified witness like the appellant's expert witness was critical of the single expert witness's report (WB 5 - 6, 24). Thirdly, the appellant appeared to submit that the single expert witness's evidence was not based upon specialised knowledge and so should not have been admitted. The appellant cited Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 [32], [36] (WB 25).
124 In Middleton v The Queen [2000] WASCA 213; (2000) 114 A Crim R 258, the court observed that [21]:
The qualification and competency of witnesses to give opinion evidence as an expert is primarily for the court of trial as a question of fact. A court of appeal will be slow to reverse the decision to admit the evidence: Bratt v Western Airlines (1946) 166 ALR 1061 at 1067; Clark v Ryan (1960) 103 CLR 486 per Menzies J at 503.
125 In the case of the single expert witness, there was evidence to the effect that he had 25 years' post-graduate experience in counselling and child/family welfare; that he was an accredited member of the Australia Association of Social Workers and a clinical member of the Australian Association of Relationship Counsellors; that he had published a number of articles in his field; and that his qualifications included a Bachelor of Arts (Psychology) from the University of Western Australia in 1984, a Bachelor of Social Work from the University of Western Australia in 1986, a Certificate in Family Therapy from Relationships Australia (Perth) in 1988, and a Certificate in Narrative Therapy from the Dulwich Centre in Adelaide in 2004 (GB 165 - 166). He also gave evidence that he was team leader for the Department for Community Development, and that in the period 1996 - March 2001 he had conducted hundreds of interviews with children who were being cared for by the department. He also gave evidence that he had interviewed hundreds of children from 2001 - March 2007, and that since March 2007 he had been in private practice in the course of which he had prepared somewhere between 500 and 700 reports for the Family Court (ts 71, 24/04/14).
126 It was plainly open to the primary court to accept that the single expert witness was a suitably qualified expert witness. Moreover, the parties had, by consent, appointed him as the single expert witness for the proceedings. Although he was not a clinical psychologist, the nature of his expertise was known to the parties when the court ordered, by consent, that he be the single expert witness in the proceedings.
127 Ground 2 should be dismissed.
Ground 3
128 The magistrate concluded that there was insufficient evidence to satisfy the court that the respondent posed a flight risk.
129 The appellant submits that the magistrate failed to properly take into account two main pieces of evidence:
• pars 35, 38 and 44 of the appellant's trial affidavit (GB 6 - 7); and
• the affidavit of the respondent's cousin, sworn on 11 February 2009 (GB 29 - 32).
130 The paragraphs referred to by the appellant in his trial affidavit do not address the question of whether the children might be removed from Australia. Rather, they are about alleged threats that the appellant would never see the children again if he did not move out of the family house.
131 The affidavit of the respondent's cousin was to the effect that the respondent had told him on 4 September 2011 that she was going to relocate to a country in Europe, or to New South Wales where she had been born, after all the proceedings were finalised. Whilst the respondent's cousin was not cross-examined on this aspect of his evidence, the respondent was cross-examined by the ICL in which the following exchange occurred:
And your brother is coming back permanently from [a country in Europe]? --- Yes. Yes.
And you said he would be back in about two months; is that correct? --- Yes. After two months. Yes.
Now, do you have any intentions of relocating to [a country in Europe] with the money that you've got? --- No.
From your property settlement --- No (ts 41, 29/04/14).
132 In closing submissions, the respondent's counsel submitted:
[I]n my submission … [the respondent should] have responsibility for - for - to have sole parental responsibility in the circumstances. In those circumstances, she should be able to make a determination to take the children overseas, or not, and that should be up to her. As your Honour has observed, with respect, it's unlikely, given [the appellant's] evidence that he would sign any passport application, and, in that regard, the requirement that he countersign such an application should be dispensed with (ts 51, 29/04/2014).
…
133 Also in closing submissions, the ICL submitted:
I do not have any objection to a passport being issued for the children without the father's consent. I think it's appropriate that if the children want - the mother and children wish to travel overseas they be entitled to do so. I did ask the mother in cross-examination about her likelihood of travelling to - well, not travelling, moving to [a country in Europe] and she was very clear on that point and I don't think it has ever been really a contention that she - well, the father believes it's a contention she will move to [a country in Europe], but I don't think it's a real prospect.
It appears that her family are here, her children are here, her parents are here, her brother is coming back, so I don't believe that they - she should be vetted from not being able to take the children overseas if she wished to do so (ts 57, 29/04/14).
134 On the evidence of the cousin, the respondent's statement had been made over two and a half years prior to the hearing before Magistrate Moroni. It was made outside of the Magistrates Court (presumably in connection with the criminal proceedings) on 4 September 2011. There was no suggestion that the statement was ever repeated by the respondent. Magistrate Moroni had the opportunity of hearing the evidence as it unfolded and observing the witnesses. This court could not safely conclude that Magistrate Moroni erred in fact in finding that the appellant had not established that the respondent was a 'flight risk': see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] - [29].
135 In the end, we are not persuaded that the appellant has established error by the magistrate.
Ground 4
136 The magistrate did not fail to determine the appellant's application. Amongst the orders sought by the appellant were the following:
14.That the [appellant] and the respondent retain equal shared parental responsibilities for the children.
…
15. That the [appellant] and respondent forthwith do all such things and sign all documents to arrange for the children to attend counselling … with a view to reintroducing the [appellant] into the children's lives.
…
20. That the children do spend time with the [appellant] initially on a supervised basis by Mrs Doubt Fire on one occasion per week.
…
23. That the children have communication with the [appellant] as follows:
(a) by telephone, Skype or FaceTime each Tuesday and Thursday between 6 pm and 6.30 pm with the respondent to facilitate the children contacting the [appellant];
(b) and otherwise liberal telephone or electronic communication.
24. There be liberty to apply on short notice and otherwise the parenting proceedings and the issue of the [appellant]'s time with the children be adjourned pending receipt of a report from Relationship Australia [55].
137 Magistrate Moroni in terms posed the question: 'Should the Court make an order in the terms proposed by the Applicant, or in similar terms?' [216]. In answering that question Magistrate Moroni considered the relevant statutory considerations and applied them to the facts as found [91], [218] - [234].
138 Whilst the court previously had made interlocutory orders allowing for conditional supervised contact with the children on 2 November 2011, those orders were made subject to the 'children's wishes' (par 6, BB 32). Also by the same set of orders, the court appointed the ICL. By the time Magistrate Moroni determined the matter on a final basis, the parties had adduced their evidence, the ICL had made submissions essentially in support of the respondent's orders, and it had been established that the children had not resumed (or wished to resume) any contact with the appellant. It is also to be noted that the orders of 2 November 2011 were made prior to the appellant's conviction for assault on the respondent's father. Also, Magistrate Bayly's speculative comments (in the criminal matter) as to why the appellant had not seen the children provide no basis for imputing error to Magistrate Moroni.
139 No error is shown. This ground should be dismissed.
Conclusion
140 The appeal should be dismissed.
4
12
1