Y v X
[2020] WASCA 104
•26 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: Y -v- X [2020] WASCA 104
CORAM: MURPHY JA
PRITCHARD JA
VAUGHAN JA
HEARD: 11 JUNE 2020
DELIVERED : 26 JUNE 2020
FILE NO/S: CACV 142 of 2019
BETWEEN: Y
Appellant
AND
X
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: MONCRIEFF J
Citation: X and Y [2019] FCWA 222
File Number : PTW 5730 of 2013
Catchwords:
Family law - Child related proceedings - De facto relationship - Appeal from interim parenting orders - Where appellant sought to contend that other orders made three years earlier against which there had been no appeal were erroneous - Whether judge displayed apprehended bias - Whether appellant was denied procedural fairness by being shut out of adducing certain evidence - Turns on own facts
Legislation:
Nil
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 decision(s):
Banks v Banks [2015] FamCAFC 36; (2015) FLC 93-637
Elmi & Munro [2019] FamCAFC 138
Fazio v Westpac Banking Corporation [2014] WASCA 80
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Saunders v The Public Trustee [2015] WASCA 203
X and Y [2016] FCWAM 82
X and Y [2019] FCWA 222
JUDGMENT OF THE COURT:
Introduction
By his notice of appeal, the appellant (the father) appeals the decision of Moncrieff J dated 29 October 2019 in X and Y[1] (primary decision). The primary decision concerned proceedings for parenting orders between the respondent (the mother) and the father of a child, referred to herein as Z. The mother and father were in a de facto relationship for approximately two years between March 2011 and about April 2013. Z is the only child of the relationship between the mother and father.[2]
[1] X and Y [2019] FCWA 222 (the names of the parties and the children have been anonymised).
[2] Primary decision [1] - [2].
In the primary proceedings, the mother and father disputed the nature of parenting orders to be made in respect of Z. At the time of the primary decision, Z was eight years of age.[3]
[3] Primary decision [2].
By the primary decision, the judge found, in effect, that the father should undergo psychiatric and psychological therapeutic support, and that in the meantime, the father be given supervised (not unsupervised) access to Z in accordance with orders proposed by the Independent Children's Lawyer, and that the matter be relisted for further consideration in 15 months, at which time further updated reports as to the father's mental health should be available. On publication of the primary decision on 29 October 2019, the father absented himself from the court building and accordingly did not participate in submissions as to the terms of the orders to be made on that day.
On 29 October 2019, the father having absented himself, Moncrieff J made orders to the effect that unless the father, within two months, provided the court with evidence of his engagement with therapeutic treatment, in particular, for post‑traumatic stress disorder, and caused the proceedings to be relisted for further orders, there would be final orders granting the mother sole parental responsibility for Z and discharging any requirement that Z spend time with the father.
The orders of 29 October 2019 were in the following terms:[4]
[4] BB 1 - 3.
UPON the proceedings coming before the Court this day,
AND UPON NOTING THAT after receiving a copy of the reasons for decision delivered this day, the Respondent, [the father], absented himself from the premises of the Family Court of Western Australia and has not been able to be communicated with in an attempt to finalise the machinery provisions of the orders proposed, his failure to engage in this regard is inconsistent with his presentation at the conclusion of the trial and thereafter, as referred to in the reasons for decision, and it was the expectation of the Court that the [the father] would engage in the therapeutic processes contemplated.
IT IS ORDERED THAT:-
1.In the event that the [the father] does not provide satisfactory evidence of his engagement in therapeutic processes as contemplated in the reasons for decision within 2 months from the date hereof and cause the proceedings to be relisted for the making of orders as contemplated in the reasons for decision for continuing therapeutic engagement and the report thereof for the Court, then and in that case, the file be referred to the presiding Judge in Chambers for final orders to be made without further notice to the parties as follows:
(a)The [mother], have sole parental responsibility for the child, [Z] ...
(b)The child [Z] live with the [mother].
(c)All other orders in the child-related proceedings between the parties pursuant to which [the father] spends time with the child [Z] … be and are hereby discharged.
(d)The Independent Children's Lawyer be and is hereby discharged
(e)All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
(f)The proceedings otherwise be and are hereby dismissed.
2.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ('their exhibits'), from the Chambers of the Honourable Justice Moncrieff, at least 28 days, and no later than 42 days, from the date hereof;
(b)all parties must contact the Chambers of the Honourable Justice Moncrieff to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
3.In the event of an appeal being lodged prior to the expiration period of 42 days, the preceding paragraph does not apply.
The father, by his notice of appeal, now appeals against those orders.
The mother, who is the respondent in the appeal, filed a notice of respondent's intention indicating that she is not taking part and will accept any order in the appeal other than as to costs.[5]
[5] Notice of respondent's intention, WB 2.
On 16 January 2020, the father filed an application to adduce additional evidence in the appeal. The application was referred to the hearing of the appeal.[6]
[6] YB 1.
The proceedings leading up to the primary decision involved numerous hearings, both before the Magistrates Court and Family Court. The background to the primary decision is set out below.
Background
October 2013 to April 2016
Upon the cessation of their de facto relationship, the mother and father were unable to reach agreement about care arrangements for Z. In October 2013, the mother commenced proceedings seeking to define the relationship between the parties insofar as it related to parental responsibility and time to be spent with Z.[7]
[7] Primary decision [3].
The mother and father also sought to define the time that would be spent with M, Z's half-sister.[8] M is the mother's child from a previous relationship.[9]
[8] Primary decision [3].
[9] X and Y [2016] FCWAM 82 [4] - [5].
The mother's application (filed on 15 October 2013, amended on 22 December 2014 and re-amended on 20 January 2016)[10] was ultimately determined following a contested hearing before Magistrate Moroni on 3 and 4 February 2016.[11]
[10] X and Y [2016] FCWAM 82 [1].
[11] Primary decision [4].
The final orders sought by the mother were in terms of Part A of her re‑amended initiating application filed on 20 January 2016.[12] Magistrate Moroni summarised the mother's proposed orders concerning Z as follows:[13]
As for [Z], the [mother] proposes that she have the sole parental responsibility for him and that he live with her and spend time with the [father] on the terms set out in her re-amended initiating application.
The [mother] is proposing a graduated scheme under which the [father] would spend more time with [Z] as the years progress.
In the short term, the [mother] proposes that the current arrangement under which [Z] spends four nights per fortnight with the [father] should continue. However, the [mother] proposes a restructuring of such an arrangement to the result that [Z] would spend alternate weekends with the [father] and spend each Wednesday night with [the father].
[12] X and Y [2016] FCWAM 82 [43].
[13] X and Y [2016] FCWAM 82 [46] - [48].
The final orders sought by the father were in terms of a document entitled 'Proposal of shared care arrangement'.[14] Magistrate Moroni summarised the father's proposed orders concerning Z as follows:[15]
As for [Z], the [father] maintained his application for orders by way of equal shared parental responsibility and for [Z] to spend equal amounts of time living with each of the parties.
The [father] proposes that in 2016 [Z] live with each of the parties, over a fortnightly cycle, under a three night/four night, four night/three night cycle.
Otherwise, the [father] proposes that, as from the beginning of the 2017 school year, [Z] live with the parties on a week-about basis, with handover to occur at 8.00 am Monday each week.
[14] X and Y [2016] FCWAM 82 [49].
[15] X and Y [2016] FCWAM 82 [52] - [54].
Both parties advanced detailed proposals in relation to special occasions.[16]
Magistrate Maroni's orders 22 April 2016
[16] X and Y [2016] FCWAM 82 [55].
For reasons delivered on 22 April 2016,[17] Magistrate Moroni made orders including the following:
[17] X and Y [2016] FCWAM 82.
1.All parenting orders currently in force in respect of the children, [M] … and [Z] … (the children) be and are hereby discharged.
2.The Applicant, [the mother] have sole parental responsibility for the children.
3.The child [M] live with [the mother] and spend time with and communicate with the Respondent, [the father] in accordance with her wishes.
4.The child [Z] live with the [mother].
5.During school term, the child [Z] spend time with the [father] as follows:-
(a)on each Wednesday from 3.00 pm or after school on a school day until 8.30 am or the commencement of school on a school day on each Thursday; and
(b)on each alternate weekend from 3.00 pm or after school on school day Friday until 5.00 pm Sunday.
6.During school holidays, the child [Z] spend time with the [father] as follows:-
(a)during the July 2016 school holidays, for two periods of three days/three nights each,
(b)during the September/October 2016 school holidays, for one period of three days/three nights and another period of four days/four nights;
(c)during the 2016/17 summer school holidays, for periods of four days/four nights in each alternate week; and
(d)thereafter, for reasonable periods during all school holidays.
In his written reasons, the Magistrate Maroni found that Z had a very good relationship with both his father and mother.[18]
[18] Primary decision [5].
On the evidence before him, Magistrate Maroni found that there was nothing particularly noteworthy about the individual personal characteristics of the mother or father, or about their backgrounds, save for the following three factors:[19]
1.The father conceded that he had a criminal record which was the subject of some material subpoenaed by the mother from interstate police. However, the father was not cross‑examined on the material and none of it was tendered into evidence.
2.The father freely admitted from the bar table that he had been a heroin addict in the past and had committed some serious criminal offences as a consequence thereof. However, there was no suggestion that the father had any drug issues or that he was likely to offend against the criminal law at the time of the trial.
3.The father made a statement to the Court that as a child, he was the victim of serious sexual abuse inflicted upon him by a Roman Catholic priest.
[19] Primary decision [8], [9].
There was little exploration in the course of the evidence as to the existence or extent of any issues surrounding or relevant to the father's mental health.[20]
The parties' further applications: May 2016 to July 2016
[20] Primary decision [10].
Less than two months after the orders were made by Magistrate Moroni, the matter returned to the court on the application of the father seeking orders:[21]
1.That the court allow [the father] to take Z to a paediatric appointment at Fiona Stanley Hospital at 10.00 am on Tuesday, 31st May, 2016.
2.That the father be allowed to take Z to all future related appointments.
[21] Primary decision [13].
In response the mother sought orders as follows:[22]
1.[The father] be prevented from making medical appointments for the child [Z] outside of the time that he has [Z] in his care.
2.[The father] be required to administer [Z] medication when [Z] is in his care.
3.That [the father] be prevented from texting [the mother] except on handover days, and that the subject matter of texts relate directly to [Z's] wellbeing.
4.The father be prevented from using [Z] to pass on gifts to the child [M].
[22] Primary decision [14].
On 20 June 2016, Magistrate Moroni made orders including:[23]
1.As soon as practicable, the Respondent, [the father] file and serve on the Applicant, [the mother], by post, a Form 4 notice in the usual form.[24]
2.[The father] be and is hereby restrained by injunction from making medical appointments for the child, [Z] … (the child) which fall outside of the time that the child is in his care pursuant to the orders of the Court made on 22 April 2016.
[23] Primary decision [15].
[24] A form 4 notice is used when allegations of child abuse or risk of child abuse or family violence or risk of family violence are made, and the allegations are said to be relevant to whether the court should make a parenting order.
On 30 June 2016, the father filed a form 4 notice of child abuse or family violence or the risk thereof pursuant to the orders of Magistrate Moroni made on 20 June 2016. He alleged that Z was either subject to, or at risk of, abuse relating to sexual activity, serious neglect and serious psychological harm from the mother.[25] The father also alleged that Z had been subjected to physical abuse from M, in the form of smacking.[26]
[25] Primary decision [16].
[26] Primary decision [17].
On 29 July 2016, the mother filed a further application initiating proceedings seeking final orders as follows:[27]
1.The Applicant, [the mother] continue to have sole parental responsibility for the children.
2.The children [M] and [Z] live with the [mother].
3.[Z] to spend time with [the father] only with supervision.
[27] Primary decision [19].
The mother also sought interim orders as follows:[28]
1.All orders related to contact between [Z] and the [father] be suspended until further order of the court.
2.The [father] be ordered to undergo a forensic psychological evaluation.
[28] Primary decision [20].
On the mother's application it was ordered ex‑parte on 29 July 2016 that:[29]
[29] Primary decision [21].
1.Until further order of the Court all current parenting orders in relation to the Respondent, [the father], spending time with the children, [M] … and [Z] … be and are hereby suspended.
2.The Applicant, [the mother], cause the [father] to be served with a copy of:
(a)the Form 1 Application;
(b)the Form 2 Application;
(c)the Case Information Affidavit; and
(d)the documents in support,
filed in these proceedings together with a sealed copy of this order.
3.The [father] shall have liberty to apply to set aside or vary the terms of this order on giving 48 hours' notice to the [mother].
4.On the oral application of the [mother], until further order of the Court, the [father] be restrained and an injunction is hereby granted restraining him from removing the said children from their current schools.
5.The said proceedings be adjourned to 3 August 2016 … and the Form 2 application of the [father] accepted for filing on 29 July 2016, also be listed for hearing on that date and time.
6.The said proceedings otherwise be transferred to the Family Court of Western Australia.[30]
The decision of Magistrate Kaeser on 3 August 2016
[30] Section 44(1) of the Act provides, relevantly in effect, for the transfer of proceedings to another court if it is in the interests of justice or for the convenience of the parties to order the transfer of proceedings to another court.
The proceedings were next before the court on 3 August 2016 in the Magistrate's Circuit in a regional city.[31] In the meantime, the mother had obtained an interim family violence restraining order against the father on behalf of herself, Z and M in a regional Magistrates Court.[32] This order was not made final until 3 January 2017.[33] The mother and M were the protected persons listed on the final order.[34]
[31] Primary decision [22].
[32] Primary decision [23], [31].
[33] GB 16 - 17.
[34] GB 16 - 17.
On 3 August 2016, Magistrate Kaeser ordered, among other things, that (1) the orders made on 29 July 2016 suspending all current parenting orders be discharged, and (2) the orders made by Magistrate Moroni on 22 April 2016 allowing the mother sole parental responsibility, and the father unsupervised contact, be reinstated with full force and effect. Magistrate Kaeser also adjourned the proceedings to a further hearing on 5 October 2016, and also ordered that the proceedings be transferred to the Family Court of Western Australia.[35]
The stay of Magistrate Kaeser's orders
[35] Primary decision [24].
On 5 August 2016, the mother filed an urgent application in the Family Court of Western Australia seeking further ex‑parte orders. The application was considered by Walters J on the same day. His Honour ordered:[36]
1.The orders of Magistrate Kaeser made … on 3 August 2016 be suspended until close of Registry business on Monday, 8 August 2016.
2.The mother must file an appeal from the said orders by not later than close of Registry business on Monday, 8 August 2016.
3.The proceedings otherwise be listed in the Judicial Duty List before the Honourable Justice Moncrieff on Monday, 8 August 2016 at not before 10:00 am in Perth.
4.The mother must cause the father to be served with a sealed copy of these orders as a matter of urgency.
[36] Primary decision [25].
As contemplated by the orders made on 5 August 2016, the matter came before Moncrieff J on 8 August 2016. A memorandum dated 8 August 2016 was provided to the court by the Department for Child Protection and Family Support (the Department) for the purpose of the hearing. The memorandum was provided in accordance with the memorandum of understanding between the Family Court of Western Australia and the Department. The memorandum was written by the leader of the Department's Assessment and Intervention Team and provided, in effect, that the Department held significant concerns regarding the decision, made by Magistrate Kaeser on 3 August 2016, to reinstate unsupervised contact between Z and his father. The memorandum detailed behaviour of the father and his ongoing belief that Z was being subjected to sexual and physical abuse from his mother. The Department expressed 'significant concern' that the father would undertake serious actions to prevent the harm he believed Z was being exposed to. The Department recommended that any contact between Z and the father be supervised and that the father undergo a thorough mental health assessment that explored in depth why he held the belief Z was being sexually and physically harmed despite all evidence to the contrary.[37]
[37] Primary decision [26].
On 8 August 2016, Moncrieff J adjourned the proceedings to 12 August 2016 and extended the stay of Magistrate Kaeser's orders until the adjourned hearing.[38]
[38] Primary decision [27].
On 12 August 2016, Moncrieff J ordered that the stay of Magistrate Kaeser's orders be continued pending the determination of any appeal by the mother.[39]
The mother's appeal against Magistrate Kaeser's orders of 3 August 2016
[39] Primary decision [29].
In accordance with the orders of Walters J made on 5 August 2016, the mother filed a notice of appeal from the orders of Magistrate Kaeser made on 3 August 2016.[40]
[40] Primary decision [30].
On 5 August 2016, the mother also filed a form 4 notice which claimed, among other things, that Z was at risk of serious psychological harm at this time from the father.[41]
[41] Primary decision [31].
The mother's application before Walters J, and her appeal against Magistrate's Kaeser's orders were supported by a letter dated 28 July 2016 prepared by a child protection worker, Ms W, from the Department's Assessment and Intervention Team.[42]
[42] Primary decision [32].
The Department's letter of 28 July 2016 stated, in substance, that it was the Department's assessment that the father presented with a distorted perception of reality in relation to his beliefs about Z being sexually and physically harmed by his mother. The letter provided that it was the Department's opinion that the father's beliefs placed Z at risk of emotional and possible physical abuse and harm. Further, the Department raised concerns about Z's physical safety in the father's care, as it had been assessed that there was a risk of the father abducting Z and refusing to return him to the care of his mother. The letter said that the police supported the Department's concerns and that the police had placed an alert against the father advising of his threatening and delusional behaviour.[43]
[43] Primary decision [32].
In the primary decision, the judge said of the Department's letter of 28 July 2016:[44]
[Magistrate Kaeser] refused to accept the correspondence [from the Department dated 28 July 2016] from the mother and thereby was not appraised of its content, however, as is evident, the same was significant and ultimately supported the orders made by Walters J for the stay of the operation of Magistrate Kaeser's orders.
The allowance of the appeal against Magistrate Kaeser's orders - 6 September 2016
[44] Primary decision [33].
The appeal from Magistrate Kaeser's orders was listed for hearing on 6 September 2016. In the course of the primary decision, in his recitation of the history of these proceedings, Moncrieff J referred to the outcome of that appeal (which his Honour heard). Moncrieff J noted that he had made an order to allow the appeal because it was clear from the transcript of the proceedings before Magistrate Kaeser that the mother was denied procedural fairness, and that the refusal to accept such relevant material as the Department's letter of 28 July 2016 in child‑related proceedings was inadequately explained, if at all.[45]
[45] Primary decision [34].
Following the disposition of the appeal against Magistrate Kaeser's decision, on 6 September 2016, Moncrieff J made further orders by consent in respect of the proceedings concerning the mother's application, made on 29 July 2016 for final parenting orders, which was still on foot. Those orders were in the following terms:
Until Further Order:
1.On a without admission as to needs basis the child, [Z] … spend time with the father, such time to be supervised by Relationship Australia … or Anglicare … such cost to be equally shared between the parties.
2.Subject to Relationship Australia or Anglicare assessing the parties to be suitable for the provision of its services, the child spend time with the father each fortnight for such time as determined by Relationship Australia or Anglicare.
3.Forthwith the parties attend an intake interview at Relationship Australia or Anglicare and shall:
a.Telephone Relationship Australia or Anglicare to arrange an appointment for an intake interview;
b.Attend the intake interview at the arranged time;
c.Attend any appointments arranged by Relationship Australia or Anglicare;
d.Comply with the rules of Relationship Australia or Anglicare;
e.Comply with all reasonable requests from Relationship Australia or Anglicare; and
f.Provide a copy of this Order to Relationship Australia or Anglicare.
4.The cost of the intake interview with Relationship Australia or Anglicare shall be borne by the parties, with each party paying for their own intake interview.
5.The production of any Supervision Report should be paid equally by the parties or if funding is available, by Legal Aid.
6.The child be independently represented at the further hearing of these proceedings and the Director of Legal Aid be requested to arrange such representation.
7.The Respondent Father shall file and serve a Form 1A Response and Case Information Affidavit within 28 days.
8.This is an Order to which Section 175 of the Family Court Act 1997 applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties on 1 August 2016 in the Magistrates Court … the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.
9.The Deputy Registrar, Magistrates Court … cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court … and the Chief Executive Officer of the Department for Child Protection and Family Support, and to the Western Australian Police.
10.Pursuant to Section 202K of the Family Court Act 1997, the Western Australia Police ('WAPOL') provide the Court with the documents or information in relation to the Applicant, [the mother] … and the Respondent, [the father] … specified hereunder:
a.History for Court documents;
b.List of Charges Report;
c.Incidents Reports for any alleged incidents involving the [mother] and the [father];
d.Statements of material facts; and
e.Police Computer Dispatch Reports.
11.Each party be restrained and an injunction is hereby granted restraining them from:
a.discussing the Court proceedings with or in the presence or hearing of the child [Z] … or disclosing to the child any of the court documentation;
b.discussing any of the allegations raised with the Department for Child Protection and Family Support ('DCPFS'); and
c.discussing any negative aspect of the other parent with the child or in his presence or hearing.
12.Matter be adjourned to 25 October 2016 at 11:30 am and to be Included in the Judges Circuit … in December 2016.
13.The hearing on 5 October 2016 to be vacated.
14.The Applicant mother facilitate telephone communication between the child and the Respondent Father every alternate Friday during school term, such communication being limited to 15 minutes in duration and on speaker phone, commencing Friday, 9 September 2016 and each alternate week thereafter.
The proceedings before Moncrieff J - October 2016 to February 2019
October 2016
In accordance with order 6 of the consent orders made by Moncrieff J on 6 September 2016, an Independent Children's Lawyer was appointed for Z.[46]
[46] Primary decision [35].
On 11 October 2016, the Department issued a report in response to each form 4 filed by the respective parties. This provided, in effect, that (1) the Department's assessment was that the father's allegations that the mother and M had sexually and physically abused Z were unsubstantiated, (2) the Department's assessment was that there was a likelihood of emotional and physical harm of Z in the care of his father, (3) the Department's assessment was that the mother was able to provide stability and safety to Z and therefore should remain his primary caregiver, and (4) the Department's recommendation was that contact between Z and his father be supervised and that the father undertake a thorough mental health assessment which explored in depth his belief that Z was being sexually and physically harmed despite all evidence to the contrary. The Department said it would support the father undergoing a comprehensive psychological assessment prior to him being allowed to have unsupervised contact with Z.[47]
2017
[47] Primary decision [37].
On 9 February 2017, the matter was programmed to be included in a regional judicial circuit commencing on 19 June 2017.[48]
[48] Primary decision [44].
On 18 April 2017, orders were made in chambers in terms of consent orders, appointing a clinical psychologist, Dr R, as a single expert to inquire into and report on matters relating to Z.[49]
[49] Primary decision [46].
On 30 August 2017, the court received and distributed the report of Dr R, the single expert.[50]
February 2018 - 19 September 2018
[50] Primary decision [48].
The trial of the mother's application for final parenting orders in respect of Z ultimately commenced before Moncrieff J on 16 February 2018. The trial ran for a total of 12 days, spread over various dates in February and September 2018 and August 2019.
During the first six days of trial in February 2018, evidence was led from the mother, the father, Ms W, who wrote the Department's letter of 28 July 2016 (referred to in [35] ‑ [37] above), and Dr R, the single expert witness.[51]
[51] Primary decision [49].
In the course of the trial on 22 February 2018, the father tendered as evidence the Department's letter dated 28 July 2016.[52]
[52] Hearing 22/02/18, ts 10.
The trial thereafter adjourned part-heard, to recommence in June 2018. The purpose of the adjournment was for some contact to be re‑established between the father and Z, and to explore the therapeutic options for the father.[53]
[53] Hearing 23/02/18, ts 57 - 58.
On 10 April 2018, at which time the father was represented by a solicitor, consent orders were made for the father to spend time with Z, supervised by Relationships Australia.[54] Given that supervised time with the father was to only then finally commence, Moncrieff J considered it desirable to vacate the listing of the part-heard trial.[55]
[54] Primary decision [50].
[55] Primary decision [51].
On 25 May 2018, Moncrieff J further ordered that:[56]
1.The part-heard trial listed to resume on 7 June 2018 be and is hereby vacated.
2.The part-heard trial be listed to resume on 19 September 2018 at 10:00am.
3.As soon as practicable, the Independent Children's Lawyer obtain and publish a report from Relationships Australia after the completion of 8 supervised visits.
4.The parties thereafter attend a late intervention Alternate Dispute Resolution Conference with Legal Aid Western Australia.
5.The parties and the Independent Children's Lawyer be at liberty to apply.
6.The Respondent, [the father], have leave to file and serve an affidavit of [the father's doctor] for the purpose of the resumed trial.
7.The parties, solicitors, counsel, Independent Children's Lawyer and any duly appointed Single Expert have permission to inspect the subpoenaed documents received from the Department of Communities, being number 15 on the Subpoena Master Sheet
[56] Primary decision [51].
The trial resumed on 19 September 2018 and ran for a further two days.[57] During the course of the evidence, further grave concerns were raised regarding the father's mental health, in particular arising from certain email correspondence received from the Queensland Police.[58] These concerns were raised with the father at the hearing on 19 September 2018.[59]
The appointment of Dr G to assess the father's psychiatric condition and report - 20 September 2018
[57] Primary decision [52].
[58] Primary decision [53].
[59] Primary decision [54].
On 20 September 2018, orders were made for the father to attend upon a psychiatrist, Dr G, for the purposes of a psychiatric assessment and orders were made by consent incorporating terms of reference for that assessment. The proceedings were otherwise adjourned pending the preparation of Dr G's report.[60]
October 2018
[60] Primary decision [56] - [57].
In October 2018, the proceedings were relisted upon the application of the Independent Children's Lawyer, following an email sent to him on 10 October 2018 from Relationships Australia.[61] The email stated:
When [the father] attended the supervised visit on 29/09/18 he entered the centre announcing that he was angry having to continue to be supervised to see his son. He said that he had a corrupt judge that did not like him believing this to be so because he was molested as a child. He said he was 'ready to snap' and has people coming to him to stop him from leaving his house at the moment and 'when I snap it won't be good'. He went on to say that, when he snaps 'nothing or nobody can get in my way and 'the first thing I'm going to do is go and find that judge and get him, then once I'm done with him, I'm going after her'. The FSW asked [the father] to clarify who her was, with [the father] replying '[the mother], that fucking bitch is going to get it too'. [The father] also said that he had considered going to the home to abduct [Z].
As we have a scheduled visit again this Saturday 13 Oct 2018, I feel there are safety issue to consider that are serious enough to stop contact at this point in time. It is my understanding that [the father] has been ordered to have psychological testing, which I support, and when this happens and he is receiving the help he needs we can reassess for the visits to be reinstated.
[61] Primary decision [58].
Moncrieff J made orders on 12 October 2018, suspending prior orders pursuant to which the father spent time with Z supervised by Relationships Australia, reserving liberty to apply 'upon the [father] completing not less than 4 counselling sessions with Relationships Australia'.[62]
Dr G's report of 4 January 2019
[62] Primary decision [59].
The nominated psychiatrist, Dr G, provided his report to the court on 4 January 2019.[63] Dr G noted that the father was seeking unsupervised access with Z, and said that, in his view, the father would have considerable difficulty at that stage in adequately parenting Z in an unsupervised manner.[64]
[63] Primary decision [61].
[64] Primary decision [153.2].
On 8 January 2019, after the distribution of Dr G's report, the matter came before the court and the following was ordered:[65]
1.In the event that the Respondent, [the father], does not object to the release of the report by [Dr G] by written notice to the Court, the Independent Children's Lawyer and the Applicant, [the mother], within 14 days from the date hereof, the Independent Children's Lawyer be at liberty to provide a copy of [Dr G's] report to Relationships Australia.
2.The Independent Children's Lawyer be at liberty to relist upon an indication from Relationships Australia as to what, if any, further information or interventions are required prior to them being prepared to resume supervision services as previously ordered.
[65] Primary decision [63].
The father was adamant that Dr G's report not be released to Relationships Australia.[66]
[66] Primary decision [64].
Ultimately, Relationships Australia resumed supervision of time spent between the father and Z, and Relationships Australia reported thereon for the purpose of the proceedings.[67]
[67] Primary decision [65].
By email on 13 February 2019, Relationships Australia raised concerns with the Independent Children's Lawyer:[68]
We refer to the orders made on 8 January 2019, and your letter dated 24 January 2019.
Since this matter was most recently in court, the Child Contact Services (CCS) had decided to reconsider provision of a supervised contact service for [the father], pending an amenable meeting with him. Prior to this meeting, it was understood [the father] objected to the release of [Dr G's] report, which was accepted as his prerogative.
A meeting was scheduled with the Manager on Thursday 7 February at the [regional] office. During this meeting, [the father] verbally agreed to follow staff direction if contact was to be reinstated. He also agreed to follow the Service Agreement; he would take a copy home and return it signed. It was agreed the Manager would follow up with him early next week.
In this meeting, [the father] requested for contact to move to the [regional] location. The [regional] CCS team met on Tuesday morning and decided to reinstate contact, as [the father] had complied with requests to attend counselling, undertake a mental health assessment, and act in accordance with CCS requirements. After obtaining [the mother's] consent for contact to recommence [at the regional place], the Manager called and emailed [the father] a number of times on Tuesday afternoon to inform him of the outcome.
Commencing Friday 8 January and continuing at the time of writing this letter, [the father] sent several emails to the CCS. He refused to re‑sign the Service Agreement, and quickly escalated numerous complaints to the head office bypassing grievance processes offered to him. He declined several requests to phone the centre, and stated he will be voice recording all future interactions, which he admitted he had done during the meeting with the Manager. He insisted all communication to be in writing and informed staff at head office he would not answer any calls from the Manager.
These ongoing difficulties have been experienced by the CCS since first engaging with [the father]. A great deal of time spent managing problems and numerous attempts to resolve them has been unsuccessful. Whilst we were initially prepared to reinstate supervised contact, it is clear we are unable to offer a service given the aforementioned issues and [the father's] inability to work with the staff.
We hereby refer this matter back to the Family Court.
[68] Primary decision [122].
Notwithstanding Relationships Australia's willingness to then recommence supervision, the father refused to re‑sign the required service agreement with Relationships Australia.[69]
The resumption of the trial before Moncrieff J - August 2019
[69] Primary decision [124].
The trial resumed on 19 August 2019 and continued through to 22 August 2019.
At the start of the hearing, there was an exchange between the court, the father, the mother and the Children's Independent Lawyer as to a letter requesting an updated report from the single expert, Dr R. It appeared that there were two versions of the letter. The judge said:[70]
And it's abundantly clear, from communication with the court, that [Dr R] was well aware that the matter was resuming this week, which is consistent with version 2 of the letter. And I will say this for the benefit of everybody at the bar table: that I attended at a conference of the Association of Family Conciliation Courts in Sydney at the end of last week, and during the course of that conference, at which [Dr R] also attended, she approached me to apologise that the report was not available, and I stopped her from saying anything other than that, but quite clearly, she was well aware that the trial was to recommence this week. (emphasis added)
[70] Hearing 19/08/19, ts 11 - 12.
The judge also said that it appeared that neither of the parties received copies of the correspondence relating to the Independent Children's Lawyer's request to Dr R, in her capacity as single expert witness, to update her report in advance of the resumed trial in August 2019.[71]
The father's position at trial
[71] Primary decision [129] - [130].
In advance of the trial commencing in February 2017, the father had sought the following orders:[72]
[72] Primary decision [68].
1.All parenting orders in respect of [Z] … be discharged.
2.All parenting orders in respect of [M] remain in force.
3.The [father] have sole parental responsibility for [Z]
4.[Z] live with the [father].
5.During school term the child [Z] spend time with the [mother] as follows,
(a)On each Wednesday from 3pm or after school on a school day until 8.30 am or the commencement of school on a school day each Thursday.
(b)On each alternate weekend from 3pm Friday or after school on a school day until 5.30pm Sunday.
6.During the school holidays the child [Z] spend time with the [mother] as follows.
(a)During the April 2018 school holidays, for 2 periods of 3 days/3 nights each.
(b)During the July 2018 school holidays, for one period of 3 days/3 nights and one period of 4 days/3 nights.
(c)During the September/October school holidays for one period of 3 days/3 nights and one period of 4 days/3 nights.
(d)During the 2018/2019 summer holidays for periods of 4 days/4 nights in each alternate week.
(e)Thereafter for reasonable periods in all school holidays.
7.Notwithstanding the provisions of paragraphs 5 and 6 of these orders, insofar as special occasions the child [Z] spend time with each of the parties on the terms set out of paragraphs 5 & 6 of the amended minute of final orders sought at Part A of the [mother's] amended initiating application filed on January 20 2016.
8.In order to give effect to the provisions of paragraphs 5 & /\ [sic] of these orders, the parties effect handover at [Z]'s school where handover is to occur on a school day and otherwise effect handover at a Shop or similar by mutual agreement.
9.The [mother] be at liberty to communicate with [Z] by telephone or video call on any given day the [mother] does not spend time with [Z]. Such calls to commence at 7pm with a maximum duration of 45 minutes unless by mutual agreement.
10.Each of the parties be at liberty to apply for further definition of any of the above orders, if necessary, by filing a form 2 application with supporting affidavit and without a s 66h certificate.
11.All previous and current applications by either party be and are hereby dismissed.
The father's position was maintained throughout and was reaffirmed upon the resumption of the trial on each occasion.[73]
[73] Primary decision [69].
The judge referred to the following exchange as to the father's position at trial:[74]
[74] Primary decision [95]; hearing 22/08/19, ts 15 - 16.
HIS HONOUR: So what orders are you seeking, [the father]?
[THE FATHER]: Your Honour, I do wish for parental care because we have two parents here. One of whom will speak, will listen to the other's opinions, will ensure their values and so forth are kept. One who, for reasons, won't speak to the other. As for the residential orders, your Honour, what I wrote in 2018 was simply the opposite of what Moroni M, in fact, wrote.
HIS HONOUR: Well, I ask that ‑ ‑ ‑
[THE FATHER]: I would defer to your judgement. Because whilst I think I know what's best, I don't always know as a parent. And I ask for - I ask those who exist in our society to help.
HIS HONOUR: Do you accept that if I was to make the orders that you have sought. And which you confirmed, earlier this week you were still seeking, being those attached, your papers for the judge that you filed February 2018. That it would require me to ignore all of the evidence of - in terms of conclusions at least and recommendations - of [Dr R] and [Dr G]? And would require me to ignore a significant body of evidence from Relationships Australia, from Eldercare and from the Department of Communities?
[THE FATHER]: I do respect that, your Honour.
HIS HONOUR: And may I say - let's put that into two grades. At the highest. If we could say, I've got the A grade evidence perhaps we could say is [Dr G's]. I don't think you would disagree with that. And you're nodding suggests you don't.
[THE FATHER]: He's going to become one of my doctors. And I was actually going to ask the court if that can be allowed.
The mother's position at trial
The mother's position, upon the final resumption of the trial, was for orders in the following terms:[75]
[75] Primary decision [70].
1.The Applicant mother retain sole parental responsibility for the child [Z].
2.[Z] to continue to live with the Applicant mother.
3.The [father] to only have supervised contact with [Z] by a service deemed appropriate by the Family Court on a monthly basis. The [father] to bear the costs of this.
4.The Applicant mother facilitate telephone contact over speaker phone for 20 mins between [Z] and his father on a fortnightly basis, between 6 and 7pm on a Thursday.
5.The [mother] be permitted to obtain an Australian Passport for [Z] and the [father's] consent to be dispensed with.
6.The [father] be restrained and an injunction granted restraining him from
a)approaching or remaining within 50 m of the [mother] and the child [Z] at any other time other than supervised contact
b)enter or remain on the premises where the [mother] lives or works or is educated or be within 50m of the nearest external barrier
c)approach or remain upon the premises of [Z's] school or be within 100m of the nearest external barrier.
The position of the Independent Children's Lawyer at trial
Upon the conclusion of the evidence, the Independent Children's Lawyer sought orders relevantly as follows:[76]
[76] Primary decision [71].
1.All previous child related Orders be discharged.
2.The Child [Z] … ('the Child') live with the Applicant Mother.
3.The Applicant Mother have sole parental responsibility for the Child.
4.Until further Order the Respondent Father to spend time with the Child with such time to be supervised, Relationships Australia.
5.The Respondent Father to:
a.continue attending upon [Dr L] in accordance with [Dr L's] recommendations;
b.attend upon a Clinical Psychiatrist well versed in treatment of Post Traumatic Stress Disorder, including treatment of Affective Disorders (Depression/Anxiety) and Psychotic Disorders on a frequent and regular basis, at least once per month; and
c.attend upon a Clinical psychologist for specific treatment for Post-Traumatic Stress Disorder on a frequent and regular basis.
6.The Respondent Father be at liberty to provide a copy of the following to the Clinical Psychiatrist and Clinical Phycologist he attends upon:
a.Copy of these Orders;
b.[The] Single Expert Witness report dated 30 August 2017, and,
c.[Dr G's] Psychiatric Report dated 14 December 2018.
7.The Applicant Mother facilitate telephone communication between the Child and the Respondent Father each Wednesday between 6.30pm and 6.45pm, with such telephone communication to be on speaker phone.
A matter raised by the judge
During the course of the summing up by the parties and the Independent Children's Lawyer, the judge raised with the parties and the Independent Children's Lawyer the prospect of making a finalisation order predicated upon the father's compliance with any obligations for psychiatric or other therapeutic interventions to occur over a specified period. That proposition was accepted by the mother and the Independent Children's Lawyer, and the father's position was that he would 'do anything' to further his relationship with the child.[77]
27 August 2019
[77] Primary reasons [72] - [73].
Within a few days of the judge reserving his decision, the father approached the judge's associate to seek clarification as to whether or not Dr G could assume the role as one of his treating psychiatrists despite his involvement as a court‑appointed expert. The mother and the Independent Children's Lawyer both consented to orders made by the judge to the effect that the father be at liberty to engage with Dr G as a patient, notwithstanding Dr G's appointment as an expert in the proceedings.[78]
[78] Primary decision [93].
The primary decision
The judge said that the relevant statutory framework to be considered was that set out in pt 5 of the Family Court Act 1997 (WA) (the Act).[79]
[79] Primary decision [76].
His Honour considered the objects of the Act contained in s 66(1). In particular, he noted that the overarching principle to be applied by the court in its consideration of any parenting order made pursuant to the Act is that of the best interests of the child.[80] His Honour said that the matters to be considered by the court in determining what is in a child's best interests were prescribed in s 66C of the Act.[81]
[80] Primary decision [77].
[81] Primary decision [78].
The judge said that the core of the inquiry in the trial before him was whether Z would be placed at risk if the court were to make an order that permitted the father to spend time with Z on an unsupervised basis.[82]
[82] Primary decision [81].
In considering the nature of the potential order to be made by the court, the judge said that there were practical constraints on the ability of the court to make any final order in in the proceedings, including that (1) supervised time cannot generally be made as an indefinite order as the supervising agencies have limited capacity to provide supervised time, (2) private supervision is both expensive and issues may arise as to the effectiveness of supervision and the quality of information being provided by private supervision agencies, (3) child‑related proceedings are of their essence never entirely final and not subject to the usual principles of res judicata[83] and (4) albeit somewhat belatedly, the father had indicated a willingness to accept a more intensive regime of engagement with both psychiatric assistance and psychological assistance. The judge concluded that in the circumstances, he was of the view that any orders made would be interim orders and that the matter needed to be subject to further review.[84]
[83] Primary decision [85]; citing Elmi & Munro [2019] FamCAFC 138.
[84] Primary decision [83] - [88].
The judge also said:[85]
I respectfully agree with the observation made by the mother that throughout the trial, the Court has heard a great deal about the father and the challenges that the father has faced during his lifetime. Some of the experiences endured by the father who was subjected to prolonged sexual abuse by members of the church where he was an altar boy are horrendous. The consequences of the abuse that he has suffered, the lack of recognition, the lack of support and the lack of fully engaged treatment are matters of great significance for the father and the Court, as indeed one would hope any reasonable human being, would have great sympathy for the father and what he has had to endure in his past and manage the problems that have manifested themselves consequentially.
However, that is not the finding that the Court must make. The Court is charged with the responsibility of making orders that serve [Z's] best interests and make an assessment of any risk to [Z]. In making that assessment, the father's presentation and his mental state are relevant and should not be driven by sympathy for the causes of his mental state, but rather by an acknowledgment of the same and how the same is best managed, such that [Z] is not placed at risk.
The judge's findings
The mother's evidence
[85] Primary decision [99] - [100].
The judge accepted that there was no evidence before him that would lead him to find on the balance of probabilities, or at all, that Z was at risk of physical or emotional harm in the care of the mother.[86]
The father's evidence
[86] Primary decision [114].
The judge noted that the father's presentation at trial was 'unusual'.[87] The father denied that he had made allegations that Z was at risk of sexual harm from the mother, and had adopted the position that Z was not at risk.[88]
[87] Primary decision [115].
[88] Primary decision [116].
The judge also said that the father's evidence in cross‑examination by the Independent Children's Lawyer reflected a lack of ability on the part of the father to view or accept propositions from Z's point of view.[89]
[89] Primary decision [143].
The judge observed that there was a 'disconnect' between the father's desire to maintain engagement with Z, on the one hand, and to seek to agitate matters where he perceived there had been an injustice against him, on the other hand.[90] The judge referred to the email of 10 October 2018 (see [53] above), and said:[91]
Episodes such as the one referred to in the email of 10 October 2018 as set out above, reflect the double persona that is projected by the father. He acknowledges that he has a persona that he projects to [Z] when spending time with him that is positive and is well reported in the supervision reports from Relationships Australia, where the overall impression is favourable to the father. Then, there is his other persona which reflects his perceived injustice that results in him making threats and being abusive and refusing to behave in a rational way, such as the refusal to re‑sign the service agreement with Relationships Australia.
Similar outbursts have been experienced by the Independent Children's Lawyer when at 5.00 am the father left a message on the Independent Children's Lawyer's answering service in the following terms, which was shouted by the father (who, on his own evidence, was also alcohol affected):
'Yeah short message, this time it's for [the Independent Children's Lawyer]. Tell [JC] I have replied five fucking times to the same fucking email. That piece of shit needs to fucking call me and fucking answer. I am sick of this fucking shit. He is supposed to do his fucking job. Why won't the fuckwit answer? I want an answer to the fucking question. I fucking want it this morning, or I'm making, fuck it, I'm making a formal complaint about the piece of shit anyway, he fucking did nothing for months on end. What is the fucking answer to my fucking question? Hurry the fuck up and get me my fucking answer dickhead.'
[90] Primary decision [125].
[91] Primary decision [126] - [127].
The judge also regarded the father's communications with Dr R as inappropriate. His Honour said:[92]
[92] Primary decision [131] - [132] (Moncrieff J having earlier noted that all errors and emphasis in extracts are as in the original: [4]).
[Dr R] communicated with the parties in an attempt to establish appointments.
The father's reaction to her attempts to arrange appointments was extraordinary. Rather than simply call [Dr R] or the Independent Children's Lawyer to determine why it was that he was being contacted, he chose to forward emails to the Court in the following terms:
…
'To: FCWA Family Court
The Principal Registrar,
Family Court of Western Australia
Hello,
I ask for this email to please be accepted as I am being harassed by a court witness [Dr R]. I also ask the court to please accept this in email form as I am also more than 20km's from the registry and have no other way to get this there immediately. Further, due to her harassment, I have had to turn my phone off and without my phone, I can not print from my printer as it is only set up for my phone.
[Dr R] was a single expert witness in the above case and has had no involvement in proceedings since February 2018. On Thursday 8/8 2019, I received several calls from her mobile number plus text messages which I did not answer as she is no longer involved in proceedings. I then blocked her mobile number due to her repeatedly calling in the evening. On Friday 9/8/19 she emailed me telling me to call her immediately. I then blocked her email. Following this, I received multiple calls Friday evening and throughout Saturday morning from her via blocked numbers. I know it was her as she left messages which I deleted as soon as I knew it was her calling.
Subsequent to this, I have had no choice but to turn my phone off on Saturday at lunchtime to avoid continued harassment. This is causing me serious difficulties as my only means of contacting people or accessing the internet is with my phone and I cannot block unknown numbers. I receive perhaps 1-2 blocked or unknown numbers in any given week and never on a weekend or at night as few people have my number.
At a hearing before Justice Moncrieff earlier this year, where [the] … Independant Children's Lawyer in my case asked His Honor to be allowed to iprovide a copy of a … report prepared by [Dr G] to [Dr R] and Relationships Australia. I objected and His Honor agreed and stated it is my right to decide who could be given a copy of [Dr G's] report. That is the only time in the last 18 months I can recall her being mentioned and it is almost 6 months since the last hearing.
I have no idea why [Dr R] is constantly calling, messaging and emailing me, especially in the evening and over the weekend and I am finding this very disturbing and upsetting especially as my trial before Justice Moncrieff is due to recommence in 1 week.
I ask the court to please, as a matter of urgency, contact [Dr R] and demand she cease contacting me immediately. To do so repeatedly, not only from her mobile number, but also via email and then to continue to do so using blocked and unknown numbers is very distressing for me. Additionally, as this has necessitated me to turn my phone off, I am now facing other serious difficulties.
I apologise for not being able to include the appropriate dates and for this not being in a signed letter, however, as I use my phone as a computer, and it is my only way to connect to my printer I have no way to write this in correct format, print, sign, scan and then send as an attachment and ask the court for leave to please accept this in this format on this occasion. I have had to use a neighbour's computer to send this and she does not have a printer.
I will turn my phone back on late tomorrow afternoon, so will be unable to reply before then, but for someone no longer connected to the case, to repeatedly contact me through so many different forms is, in my opinion, harassment and as she is a court appointed witness I ask the court to please demand of her she stop attempting to contact me.
I will forward this email to the [Independent Children's Lawyer] and the applicant mother[.]'
The judge observed that in his subsequent cross‑examination of Dr R at the resumed trial, it was clear that the father's hostility directed against her in his earlier cross‑examination had significantly abated.[93]
[93] Primary decision [136].
The judge also said that it was disturbing that the father openly acknowledged that he had lied during the course of his evidence when giving his summary to the court, and that he had not given particulars about the events about which he had lied.[94]
[94] Primary decision [139].
His Honour then said:[95]
[95] Primary decision [140] - [142], [144] - [148].
The dilemma not only for the Court, but also as expressed by the mother, is what effect the father's behaviour would have upon [Z] if "the animal inside" (as described by the father), or what I have referred to as his secondary persona, should escape whilst he is responsible in an unsupervised environment for [Z's] care.
I would also observe that the very orders that the father sought appeared not to have been reality tested by him in terms of the effect the same would have on [Z].
Whilst I accept that the father's position had softened at the conclusion of the resumed trial, in essence it had not changed and he did not advance any alternate proposition despite being given the opportunity to do so.
…
Another disturbing aspect of the father's presentation which is directly relevant to the future conduct of this matter is the degree of his engagement with his prior medical practitioners.
The father receives ongoing medication for treatment of his attention deficit hyperactivity disorder ("ADHD"). His prescriptions are provided by [Dr L], a psychiatrist. [Dr L] did not give evidence although he provided, through the father, a short report and documents were received into evidence from … Mental Health, which included correspondence from …, a psychologist, from [the father's doctor] and [from a] psychiatrist.
[Dr G], quite properly in my view, had concerns about the level of engagement between the father and his psychologist and psychiatrist, such as to constitute the type of therapeutic intervention that was considered appropriate by both [Dr G] and [Dr R].
Whilst the father was very quick to defend his relationship with his treating psychiatrist and other health professionals, for which I do not criticise him, he appeared unwilling to accept that a greater degree of therapeutic intervention was necessary other than that which was given collaterally with the six monthly re prescription of his ADHD medication.
It is in my view vitally important that the father engages with his treating medical practitioners and psychologists in light of the evidence given by [Dr R] and [Dr G], so as to ensure that the therapeutic intervention is directed to not only the best outcome for the father, but also in terms of the mitigation of any risk to [Z], in terms of any future contact between he and the father.
The evidence of the single expert witness, Dr R, and the psychiatrist, Dr G
The judge said that the opinions of the single expert witness, Dr R, and the psychiatrist, Dr G, were pivotal to the assessment of risk to Z.[96]
[96] Primary decision [149].
Dr G observed in his report:[97]
[The father] gave a convoluted description of his chronic anxiety symptoms related to post traumatic stress experience. [The father] denied any perceptual abnormalities (hallucinations).
His belief, and concern of the Family Court, appeared to reach delusional intensity although on a brief basis in 2016. Most recently he has modified his thoughts and accepted that his view and beliefs were based on inaccurate thinking and feeling in regards to the child's alleged abuse. However, [the father] had harboured similar thoughts of long duration not in delusional intensity. It appeared that his current beliefs in regards to the child [Z] were related to an over-valued ideation.
[97] Primary decision [150].
Dr G provided the following clinical diagnosis of the father:[98]
1.Post Traumatic Stress Disorder (chronic)
2.Major Depressive Episode (moderate) (Please note that another diagnosis that could be considered in his case is namely Adjustment Disorder with Depressed and Anxious Mood closely related to his stress Family Court proceedings and other Court proceedings.
3.Brief/Transient Psychotic Disorder (brief reactive psychosis with marked stressors)
4.Attention Deficit Hyperactivity Disorder
[98] Primary decision [152].
Dr G expressed the opinion, with which the judge agreed, that '[the father] lacked appropriate insight for his current circumstances'.[99] Dr G also referred to the father's proposal for unsupervised access and said:[100]
In my opinion, he would have considerable difficulty at this stage to adequately parent the child in an unsupervised manner. At present due to his current behaviour and mental state he will not be able to meet the emotional needs of the child.
[99] Primary decision [151].
[100] Primary decision [153.2].
In relation to the father's mental health generally and treatment, Dr G said:[101]
[101] Primary decision [153.3] - [153.6], [155].
In my opinion the treatment of [the father] is inadequate. [The father] should see a Psychiatrist who is reasonably well versed in treatment of Post Traumatic Stress Disorder including treatment of Affective Disorders (Depression/Anxiety) and Psychotic Disorders.
[The father's] Post Traumatic Stress Disorder is a complex condition and likely to drive most of [the father's] psychiatric experience including his brief psychotic episode based on his unfortunate experience as a child.
Chronic ADHD would further aggravate the overall condition. Hence [the father] should be on appropriate biological treatment/medication including antidepressants and antipsychotic medication in addition to mood stabilisers for his treatment. He should also see a Clinical Psychologist for specific treatment for Post Traumatic Stress Disorder.
[The father] should attend Cognitive Behavioural Therapy or alternatively Eye Movement Desensitisation Reprocessing (EMDR).
A Consultant Psychiatrist should see [the father] on a frequent and regular basis, at least once per month. His follow up could be organised through Community Mental Health or in a private psychiatric clinic.
It is paramount for [the father] to attend the treatment in order to improve.
Indeed, of concern are his underlying beliefs, impulsive and unpredictable behaviour and his inability to cope with perceived stress.
…
I have formed the opinion that [the father] has limited insight into the reason for his ex-partner [the mother's] concern and her fear having unrestricted access to the child including his influence on the child.
It is worrying but understandable on his complex psychiatric condition that [the father] is unable to reflect upon his own conduct and behaviour.
In my assessment he has shown limited insight into his overall behaviour and attitude.
Unfortunately [the father] continues to view himself as a victim of the Court proceedings.
…
[The father] struggles to accept any notion of his own wrong doing. He only accepts that some of his observations could have been exaggerated but not entirely inaccurate. He continues to strongly believe that he was wronged by his ex-partner [the mother], and other Agencies involved in the case. However, he is compliant with the Court Orders and so far has remained to obey societal norms. Of concern is his propensity for impulsivity and unpredictability.
…
Without proper treatment I do not believe that [the father's] behaviour is likely to change in the next six months.
On the contrary, if he is denied access to the child, I am of the opinion that his behaviour could further escalate. [The father] is at risk for his own safety on the basis of his underlying psychiatric condition and propensity for impulsivity and unpredictability. I am aware that in the past and most recently he has voiced threats to himself.
It is of paramount importance that [the father] receives urgent and appropriate treatment.
In addition, I believe that with proper treatment [the father's] insight and overall coping with stress and behaviour would improve.
…
I did not form opinion that [the father] is any direct threat to his child. However, on the basis of his ongoing belief, there's always risk that he can act in an - in a, you know, an unpredictable and impulsive way. In a way, all overvalued ideas and delusions are part of that. We - we have as well other psychiatric conditions as ADHD, which one of the criteria is impulsivity and emotional instability and the other one is Post Traumatic Stress Disorder.
The opinion of the single expert witness, Dr R, was aligned with that of Dr G. She also recommended therapeutic engagement and a reassessment of any risk after the completion of an appropriate period of therapy.[102] The judge considered that such therapy would desirably include a focus on treatment of the father's post-traumatic stress disorder, as particularly identified and referred to by Dr R, who had extensive experience in the field.[103]
Assessment of risk
[102] Primary decision [164].
[103] Primary decision [165].
The judge said:[104]
[A]s seen from the proposals that I am considering, it is clear that during a period of proposed therapy contact, albeit supervised and within the current regime would continue, and I agree with the observations made by the mother that further disturbance of [Z's] relationship with his father is likely to have emotional and psychological consequences for [Z].
However, given the father's current presentation such contact, consistent with the views of [Dr G] and as supported by [Dr R] … should continue to be supervised and in the current regime until such time as the risk to [Z] has abated.
Presently I consider the risk to [Z] to be an unacceptable one.
Conclusion
[104] Primary decision [158] - [160].
The judge found that the father's motivation was genuine and therefore, there was a multifaceted benefit through him engaging in therapy with both a psychiatrist and a psychologist, not only in the context of his relationship with Z and the need to abate any risk to Z, but also for the father's own wellbeing.[105]
[105] Primary decision [166].
The judge noted that in terms of the considerations expressed in the Act, the focus of his reasons were directed to an assessment of risk and the steps to be taken to abate that risk. The judge accepted that Z has a positive relationship with his father and absent any risk to Z, there is a benefit to him in maintaining that relationship.[106] His Honour said that he had not disregarded the balance of the considerations expressed in the Act, however he determined that they were largely irrelevant in the assessment of the matter and the need to abate risk.[107]
[106] Primary decision [167].
[107] Primary decision [168].
The judge said that in approaching the matter in this way, he had had regard to the decision of the Full Court of the Family Court of Australia in Banks v Banks.[108]
[108] Banks v Banks [2015] FamCAFC 36; (2015) FLC 93-637 [50].
The judge observed that maintaining a relationship with the father was consistent with Z's wishes and his expressed affection for him and the positive relationship that had been observed during the supervised visits.
His Honour determined that it would be necessary for the court to make an assessment of the father's engagement with appropriate assistance prior to advancing the time that Z spends with the father to an unsupervised regime.[109]
[109] Primary decision [90].
The judge concluded:[110]
For these reasons, I determine that I should make orders in terms of those proposed by the Independent Children's Lawyer, although I will hear from the parties in terms of any specific variations thereto in terms of the identification of the relevant treating practitioners and the release of information to them as appropriate.
I propose that there be a review in the matter no earlier than 15 months from the date of orders, and I would anticipate receiving updated reports.
I make it clear however that the expressed desire to engage in therapeutic processes as expressed by the father is expected to be pursued as the likely practical alternative and given the limitations upon supervision resources would be that the relationship between father and [Z] would fall away.
I will hear from the parties and the Independent Children's Lawyer as to the specifics of orders to which I have referred. The proceedings will otherwise thereafter stand adjourned to be relisted upon the application of the Independent Children's Lawyer or either of the parties at the expiration of 15 months.
[110] Primary decision [173] - [176].
The father's application to adduce additional evidence in this appeal
By application dated 16 January 2020, the father applied to adduce as additional evidence in the appeal the material in his affidavit affirmed 16 January 2020. The application was referred to the hearing of the appeal.
In his affidavit of 16 January 2020, the father annexed the following:
1.Emails within the Department copied or sent to Ms W dated 28 July 2016, 1 August 2016 and 2 August 2016.[111]
[111] YB 6 - 8.
2.Other Department documents, being:
(a)A document headed 'Case Notes' dated 20 July 2016 referring to a Child Assessment Interview with Z on 20 July 2016;[112]
[112] YB 9 - 10.
(b)a 'Confidential' document in relation to an interview with Z dated 11 July 2016;[113]
[113] YB 11.
(c)an 'Intake Case Plan Approved Outcome Report' of June 2016 in relation to a complaint by the father;[114]
[114] YB 12 - 14.
(d)a 'Child Assessment Interview' of Z dated 25 August 2016;[115] and
[115] YB 15 - 18.
(e)a 'Child Assessment Interview' of M dated 20 July 2016.[116]
[116] YB 19 - 21.
3.A complaints procedure brochure from the Department headed 'Resolving your complaints - complaints kit' which included:[117]
[117] YB 22 - 25.
What is a complaint?
A complaint is a formal way of telling the Department that you are dissatisfied or concerned with something it has done. Complaints …… the director, manager or the delegate need to use the formal complaints procedure to try to resolve the problem …
What CAN be complained about?
A complaint may be about any of the services that are provided the Department …
You may wish to complain about not receiving a service that you believe is reasonable to expect from the Department.
You may also wish to complain about a decision that the Department has made, policies of the Department that have affected you, or about the actions of a particular officer of the Department.
Complaints we CANNOT deal with
You can talk to us about all your complaints, however, there are some complaints that are not part of the Department's Complaints Policy.
Please talk to the Complaints Management Unit if you need information on complaints about these areas:
• Any complaint that is subject to current legal action in a court or a tribunal (legal practitioner or Legal Aid)
• Decisions made by the Children's Court or Family Court of Western Australia (legal practitioner or Legal Aid)
4.A letter from the then Chief Judge of the Family Court of Western Australia to the father dated 3 January 2019 in the following terms:[118]
Thank you for your letter of 28 December 2018 in which you ask for clarification in relation to appeal processes, with reference to orders made [by Magistrate Kaeser] on 3 August 2016.
My examination of the file indicates that you are correct in believing that orders were made by Magistrate Kaeser on 3 August 2016. The operation of the orders was suspended by Justice Walters in chambers on 5 August 2016, following receipt of correspondence from the other party …
The suspension of the orders was made without notice to you, but on strict condition that a Notice of Appeal was to be filed almost immediately. When the matter came before Justice Moncrieff on 8 August 2016 and on 12 August 2016, the orders of 5 August 2016 were further suspended. The appeal against the orders then came before Justice Moncrieff on 6 September 2016, at which time the appeal was allowed and orders by consent were made in terms of a Minute agreed between the parties.
While the granting by a Judge of a suspension of an order made by a Magistrate prior to the filing of an appeal is not in accordance with usual procedures, it seems Justice Walters had been advised of evidence suggesting that the child's best interests required this action (see attached memorandum from a Family Consultant dated 8 August 2016).[119]
I trust this information will assist in understanding what occurred in your case.
5.A record of a speech apparently prepared by Ms Cohen, Child Protection Consultant Family Court WA, presented by Moncrieff J at 'ANU/NJCA Conference 2015'.[120]
[118] YB 26 - 27.
[119] The father's affidavit did not attach the memorandum dated 8 August 2016 from a Family Consultant.
[120] YB 28 - 40.
The father, by par 3 of his affidavit, said that the judge had not accepted these documents into evidence. He referred in that regard to the following exchange in the course of his cross‑examination of Ms W of the Department on 22 February 2018:[121]
[121] Hearing 22/02/18, ts 7.
[THE FATHER]: [Ms W], when did you first hear of myself, to the best of your recollection?---I believe it would have been when the case was allocated to me.
On 23 June, I attended Community Services offices … at 8.30 in the morning and left at approximately 9 o'clock. Are you aware of this?---I've got no recollection of that. Did - - -
Your Honour, I wonder if at this time I might be able to hand up my - the documents that I copied off the disc from [the Department] to be placed into evidence, please.
HIS HONOUR: Yes. Got copies for everybody?
[THE FATHER]: Yes, I've supplied - [the mother] and [the Independent Children's Lawyer] have already received a copy. I have one for the court.
HIS HONOUR: Are you about to ask questions about it?
[THE FATHER]: Yes.
HIS HONOUR: Right. You got a copy for the witness?
[THE FATHER]: I believe [the Independent Children's Lawyer] provided her - I'm not sure if she actually - - -
HIS HONOUR: Right. Let's have them. Yes, thank you. Yes, [the father].
The father also referred to two passages in connection with his cross‑examination of Ms W on the Department's complaints procedure brochure referred to in [98.3] above. First, he referred to the following exchange on 22 February 2018:[122]
[122] Hearing 22/02/18, ts 21 - 23.
[THE FATHER]: … [Ms W] in relation to the department's complaints policies and procedures - and I understand you don't work in that section, so you may not know - is it written into the complaint sections rulings that, if something is before a court or a tribunal, that the department will not, in fact, investigate what they're being asked to?---I don't have that information; I'm unsure.
HIS HONOUR: I would be very surprised if it was.
[THE FATHER]: It's on the pamphlet that they posted out to me, your Honour.
HIS HONOUR: All right. Well, show it to the witness then, if you want me to have regard to it. I'm not quite sure what the relevance is, but, yes. Because you see, [the father], the problem is this - and this is the problem you are stuck with - on your own case, you were on their back to do something when the matter was before the court, so now you're going to criticise them for doing it. Is that your position? Well, is it?
[THE FATHER]: I'm trying to recall the last two statements, your Honour. I'm very, very nervous and I'm - - -
HIS HONOUR: No, no, [the father], stop making excuses. You just asked a question about the complaints procedure, and I said I would be surprised if, as part of the complaints procedure, it was mandated or suggested in anything produced by [the Department], that - or its successors, that they should stop doing something when it's before the court and, indeed, you've asked [Ms W] about that, but you have run your case on the basis that you kept wanting them to do things and to be engaged in the matter when the matter was clearly before the court, so I'm not quite sure what your point is, with great respect.
[THE FATHER]: I will withdraw those questions, your Honour.
HIS HONOUR: Well, I'm not preventing you from asking them, I'm just trying to see the point of it, because it would create an absurdity, wouldn't it?
[THE FATHER]: Your Honour, I will leave that line of questions alone. I wonder if I would be able to bring that pamphlet in tomorrow morning.
HIS HONOUR: Look, you can bring the pamphlet in and that's fine.
[THE FATHER]: Thank you, your Honour.
HIS HONOUR: But what I'm simply saying is this: are you suggesting to me that, because there is a proceeding in advance, that when an allegation was made by you about [Z] being sexually abused, the department should have done nothing?
[THE FATHER]: I - no, your Honour, the complaint was in fact - - -
HIS HONOUR: And then when you made a complaint that they should have stopped doing everything.
[THE FATHER]: No, no, no. I apologise, your Honour. My point was - - -
HIS HONOUR: See, that's what I'm trying to work out, what your point is.
[THE FATHER]: Thanks. I'm trying to work out the best way to say - - -
HIS HONOUR: Well, perhaps that's something you can make a submission to me about at another time, but you keep - - -
[THE FATHER]: Thank you.
Secondly, he referred to the following exchange at the hearing on 23 February 2018:[123]
[123] Hearing 23/02/18, ts 2 - 3.
HIS HONOUR: Yes. Just a preliminary matter. Yesterday afternoon … you sent an email to my legal associate. It was not copied to the other party or to [the Independent Children's Lawyer], as it should have been. Have you raised with [the Independent Children's Lawyer] and [the mother] what it is that you wish to do?
[THE FATHER]: Your Honour, I actually emailed [the Independent Children's Lawyer] for advice yesterday, after I had spoken to my doctor at lunchtime. He told me that I had to arrange it through the court. I rang the court advisory line. I asked them, and they said that I get in touch with your associate.
HIS HONOUR: Good. Now, can you answer my question.
[THE FATHER]: No. I haven't notified [the mother].
HIS HONOUR: Right. Have you raised - so, all right. Well, let's deal with [Dr R] and then we will see where we go in terms of [Dr M].
[THE INDEPENDENT CHILDREN'S LAWYER]: I have a copy of that document - the email that - if it's the same email that he sent your associate, your Honour, I have been provided that last night.
HIS HONOUR: All right. Remember what I said, [the father], about ambush and people being afforded procedural fairness so that they have an opportunity to properly prepare their case, knowing what case it is that they're facing. All right.
[THE FATHER]: Yes, your Honour.
HIS HONOUR: That is why there is the direction that all matters need to be copied to all parties. All right.
[THE FATHER]: My apologies, your Honour. Just, specifically because of that, when the witness comes in, I plan on possibly mentioning - I mentioned yesterday in court that the Department has a procedure in place that says that they cannot investigate any complaint that is subject to current legal action in a court or tribunal, legal practitioner or Legal Aid. I have here a brochure from - - -
HIS HONOUR: That wasn't the proposition, actually, that you put to the witness. And the brochure is, with great respect, of little evidentiary value in regard to what I have to do. Unless the purpose of this trial is a witch hunt against [the Department].
[THE FATHER]: No.
HIS HONOUR: Good. Then, in that case, we will proceed on the basis of the evidence - thank you - and on what was put yesterday. Yes.
Grounds of appeal, submissions and orders sought
Ground 1
Ground 1 (read with the submissions) alleged, in effect, that the judge erred:
1.At [33] of the primary decision when he said that the Department's letter of 28 July 2016 was not before Magistrate Kaeser on 3 August 2016.
2.At [34] of the primary decision when, with respect to the appeal from Magistrate Kaeser's decision heard on 6 September 2016, the judge said that it was clear from the proceedings before Magistrate Kaeser that the mother had been denied procedural fairness, and that the refusal to accept the 28 July 2016 letter was inadequately explained, if at all.
The father referred to the transcript of the hearing on 3 August 2016 before Magistrate Kaeser as indicating that the Department's letter of 28 July 2016 was received and considered by Magistrate Kaeser.[124]
[124] Hearing 03/08/16, ts 7 - 9, 11.
He also referred to some evidence which, he said, was, to the best of his understanding, a 'memorandum of understanding' dated 8 August 2016[125] the information in which was available at the hearing before Magistrate Kaeser on 3 August 2016, but which the mother decided not to adduce in evidence at that hearing.[126]
[125] Presumably intending to refer to the memorandum in [30] above.
[126] Hearing 03/08/16, ts 12 - 13.
The overall effect of the father's submissions was that he contended that Magistrate Kaeser's orders were correct and that the appeal against Magistrate Kaeser's decision ought not to have been allowed by Moncrieff J on 6 September 2016.[127]
Ground 2
[127] Appellant's written submissions, par 1(LL); WB 8.
Ground 2 (read with the submissions) alleged, in effect, that the judge erred by displaying apprehended bias by accepting the evidence of the single expert witness, Dr R.
In that regard, the father referred to the following:
1.The disclosure by Moncrieff J referred to in [62] above.
2.Dr R's evidence on 23 February 2018 to the effect that (1) she believed that the father was suicidal, (2) she telephoned the father, and (3) there was no reply to some of the telephone messages, which was 'concerning'.
3.Dr R's evidence that ADHD is a contentious diagnosis, whereas Dr G had accepted that the father had ADHD and that ADHD is referred to in the Diagnostic and Statistical Manual of Mental Disorder, a recognised psychiatric publication.
4.Dr R's evidence on 22 February 2018 that she did not know whether the father's medicine would affect the tests he was undertaking, and on which Dr R was relying.
5.Dr R 'freely admit[ted] that she [had] no experience with victims of child sexual abuse'.
6.He submitted that the judge wrongly found that Dr R had contacted both parties as to her updated report for the resumption of the trial in August 2019, whereas Dr R did not in fact contact the father until the week prior to the resumed trial, and she did not contact the mother at all.
Ground 3
Ground 3 (read with the submissions and clarified by the appellant in oral submissions) alleged, in effect, that the father was denied procedural fairness in that he was shut out of adducing as evidence the documents referred to in [98.1], [98.2] and [98.3] above, and from cross‑examining Ms W on them.
Orders sought
In his 'orders wanted'[128] the father sought, in substance, the following orders:
1.For leave to appeal against the orders of Moncrieff J dated 29 October 2019 and for the appeal to be allowed.
2.For the restoration of Magistrate Kaeser's orders of 3 August 2016 and for the matter to be remitted to Magistrate Kaeser.
3.That the father be granted leave to apply to the Australian Health Practitioner Regulation Agency (AHPRA) to request an investigation into Dr R's evidence and to supply documents and, in the event that AHPRA made a 'finding against' Dr R, the father be granted leave to apply to the Supreme Court to consider arguments to disqualify Dr R as a single expert witness in Australian courts.
[128] WB 17.
Disposition
The application to adduce additional evidence
It is convenient to commence with the father's application to adduce additional evidence. The relevant principles have been outlined by this court in Saunders v The Public Trustee.[129]
[129] Saunders v The Public Trustee [2015] WASCA 203 [87] - [90].
The documents referred to in [98.1] and [98.2] above were part of the compact disc of materials marked exhibit 18. The compact disc was produced by the Department pursuant to a subpoena and tendered in evidence by the mother.[130] Accordingly, they are not fresh or new evidence in this appeal, and the application to treat them as fresh or new evidence must be rejected.
[130] Hearing 19/08/18, ts 48 - 49.
The complaints procedure brochure referred to in [98.3] above could only be of potential relevance if, as alleged in ground 3, it were a material document which the judge wrongly excluded as evidence in the hearing. For the reasons given in relation to ground 3, the complaints procedure brochure was not material to the issues for resolution by the judge, and the father did not pursue its tender when the judge indicated that the document lacked relevance. There is no proper basis for this court to receive the brochure as evidence in the appeal. It has no arguable bearing on the proper disposition of this appeal.
The document referred to in [98.4] above was merely an explanation provided to the father in relation to the appeal process from Magistrate Kaeser's decision. It is not relevant to the disposition of the appeal and, even if it were thought to be of any relevance, there is no explanation as to why the document was not adduced in evidence at the hearing. It is by no means fresh evidence.
The document referred to in [98.5] above is also self‑evidently of no relevance to the disposition of the appeal. Even if it were conceivably thought to be relevant, it is in no sense fresh evidence.
For these reasons, the father's application to adduce additional evidence in the appeal should be dismissed.
Ground 1
Insofar as ground 1 alleges that the judge erred in finding, on 6 September 2016, at the appeal from Magistrate Kaeser's decision, that the mother was denied natural justice because the magistrate refused to accept into evidence the Department's letter of 28 July 2016, his Honour, with respect, erred. It is evident from the transcript of the hearing before Magistrate Kaeser that the letter was received and given consideration by the magistrate.[131]
[131] Hearing 03/08/16, ts 7 - 9, 11.
However, that historical error by the judge is not within the scope of the notice of appeal. The present appeal is brought against the judge's orders of 29 October 2019, and not against the judge's order of 6 September 2016 to allow the appeal. For this reason, ground 1 cannot succeed.
Even if the notice of appeal herein were read as an application for leave to appeal out of time and an appeal against Moncrieff J's decision of 6 September 2016, for the following reasons ground 1 could not be upheld in any event.
At the outset, it may be noted that a transcript of the hearing before Moncrieff J on 6 September 2016 was not included in the appeal books, and inquiries made by this court indicated that a transcript had not been made of that hearing. The appellant contended that no reasons for decision had been given by the judge on the appeal. There is no objective evidence (indeed, any evidence at all - only a statement in written submissions) that Moncrieff J did not provide reasons for upholding the appeal against Magistrate Kaeser's decision.[132] Even assuming, however, that no reasons were given by Moncrieff J on 6 September 2016, the fact remains that there was no appeal from that decision until (on the present hypothesis) more than three years after the decision was made.
[132] Appellant's written submissions, par 1.BB; WB 10.
Moreover, since the decision of Moncrieff J on 6 September 2016 to allow the appeal from Magistrate Kaeser's decision, there has been considerable further litigation between the parties, involving (amongst other things):
1.The making of consent orders on 6 September 2016 to the effect that the father spend time with Z on a supervised basis, for the appointment of an Independent Children's Lawyer, and that the matter be adjourned for further hearing.
2.The appointment of the Independent Children's Lawyer.
3.The appointment of Dr R, by consent, as the single expert witness.
4.A 12 day trial conducted before Moncrieff J on various dates between February 2018 and August 2019. In the course of the first six days of that trial, the father adduced evidence and cross‑examined Ms W on the letter of 28 July 2016 as well as on a number of the documents referred to in [98.2] above.
5.The making of consent orders on 10 April 2018, at a time when the father was legally represented, for the father to spend time with Z, supervised by Relationships Australia.
6.A further two days of the trial before Moncrieff J in September 2018.
7.The appointment of Dr G to undertake a psychiatric assessment of the father and to report.
8.The suspension of earlier orders, on 12 October 2018, following evidence from the Independent Children's Lawyer that the father had said to an employee at Relationships Australia that he was 'ready to snap', and had expressed potential threats towards the mother and the judge.
9.The subsequent proposal by Relationships Australia for the resumption of the father spending time with Z, to be supervised by Relationships Australia.
10.The father's later refusal to re‑sign the required service agreement with Relationships Australia.
11.The resumption of the hearing before Moncrieff J over four days in August 2019, in which the father participated, including by cross‑examination, and in which the court received evidence from the mother, the father, Relationships Australia,[133] Dr R and Dr G.
[133] Hearing 19/08/19, ts 2 - 7.
In this context, even if the father's appeal notice herein were treated as an application for leave to appeal out of time and to appeal, if leave were granted, against Moncrieff J's decision of 6 September 2016, the application would be dismissed. That is because (1) insofar as the father submitted that he did not appeal that decision earlier due to legal advice, there is no evidence of that but, in any event, he is bound by the conduct of his lawyers, (2) the interests of justice in this case involve a consideration of the interests of Z, (3) considerable evidence has been gathered, since September 2016, including through the Independent Children's Lawyer concerning the best interests of Z, (4) it would not be in the best interests of Z to return to a parenting regime which effectively ignores the most recent evidence in this case, including evidence from Dr G - about whom the father makes no complaint in this appeal and whom it appears, from the primary decision, the father has sought to retain as his own treating psychiatrist,[134] (5) the father, in his grounds and submissions, does not contend that it would be in the interests of Z to return to the parenting orders made by Magistrate Kaeser, and (6) it would not be consistent with the broader administration of justice now to overturn a decision the validity of which has been effectively accepted as correct in the extensive litigation between the parties over the three years preceding the primary decision.
[134] Primary decision [70].
Ground 1 should be dismissed
Ground 2
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine.[135] That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided.[136] The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.[137]
[135] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
[136] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67].
[137] Fazio v Westpac Banking Corporation [2014] WASCA 80 [29].
None of the matters referred to by the father in ground 2 singularly or collectively demonstrates apprehended bias on the part of the judge. The disclosure referred to in [62] above self‑evidently reveals no apprehended bias.
The father's complaints about Dr R in substance involve criticisms of her evidence. Even if the criticisms were valid (and these reasons should not be taken as suggesting that they are), they do not, even arguably, reflect apprehended bias on the part of the judge. Moreover, the judge in his primary decision examined the medical evidence principally by reference to the evidence of Dr G.[138] The judge made limited reference to Dr R's report and, as regards the mental health of the father, said that her view 'was very much aligned with that of [Dr G]'.[139] In other words, his Honour regarded Dr R's evidence as confirmatory of the evidence of Dr G. The father in this appeal does not challenge the judge's acceptance of Dr G's evidence. The contention that the judge erred in finding that Dr R had contacted both parties as to the timing of her report, even if in error (and the error was not evident from the father's submissions), raises no arguable point of apprehended bias. At its highest, it indicates an error on an immaterial collateral matter of fact.
[138] Primary decision [150] - [160].
[139] Primary decision [164].
Ground 2 should be dismissed.
Ground 3
The judge did not prevent the father from adducing as evidence the documents from the compact disc provided by the Department, including the documents referred to in [98.1] and [98.2] above. As noted earlier, the documents were on the compact disc which was received into evidence as exhibit 18 at the hearing on 19 September 2018.[140] Further, the father was not prevented from cross‑examining on the documents referred to in [98.1] and [98.2], and it is evident that the father cross‑examined Ms W on a number of the documents in [98.2].[141]
[140] Hearing 19/09/18, ts 48 - 49.
[141] Hearing 22/02/18, ts 15 - 20.
Further, if and insofar as the documents referred to in [98.1] and [98.2] above were potentially relevant to the father's complaint that the mother had sexually abused Z, by February 2018, that complaint was no longer maintained.[142] At the hearing on 20 February 2018, the following exchange occurred:[143]
HIS HONOUR: One of the things that does concern me is you made allegations that [Z] has been sexually abused by the mother or in her care. Do you maintain those allegations?
[THE FATHER]: Absolutely not, your Honour.
[142] Primary decision [116].
[143] Hearing 20/02/18, ts 52.
As to the Department's complaints brochure referred to in [98.3] above, the transcript of the hearing on 23 February 2018[144] indicates that the judge did not prevent the father tendering the document but, rather, his Honour indicated that the document would have no real relevance, whereupon the father did not pursue the tender of the document. Even if it could be said that the judge prevented the tender, the judge was correct in concluding that the document had no relevance to the ultimate question which the judge was called on to decide - the appropriate parenting orders having regard to the best interests of the child. Any refusal to allow the tender on the grounds of relevance was plainly correct.
[144] See [101] above.
There is no merit in ground 3.
Conclusion
The father's application dated 16 January 2020, and the appeal, should be dismissed.
Two final observations may be made. First, these reasons (necessarily) deal only with the appeal from the orders dated 29 October 2019 and the grounds of appeal. In oral submissions, it appeared that the father's real grievance was that the Department's letter of 28 July 2016 had unfairly and incorrectly stated that he had attempted to 'abduct' Z and M when he attended at their school on (apparently) 11 February 2016, and that (as at 28 July 2016) he continued to present a risk of abducting Z.[145] The primary judge, however, made no finding of fact to that effect, and (although it would not ordinarily be necessary to say so) these reasons are not to be construed as involving any assessment or comment on the correctness or otherwise of that aspect of the Department's letter of 28 July 2016. Secondly, this court has no power to make the orders sought by the father referred to in [109.3] in any event.
[145] See the Department's letter dated 28 July 2016 at primary decision [32].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy26 JUNE 2020
6
1