Mother’s appeal dismissed and she orders to pay the Father’s Costs.
Initial decision (can be viewed here) upheld in which the Court made Final Orders:
- Giving Father Sole Parental Responsibility for 9 year & 7 year old children;
- Mother given limited time on a graduated basis:
- No time at all for 6 months except 2 hours on child’s birthday (or the nearest date the Contract Centre can facilitate) and 4 hours on Christmas Day supervised by the maternal grandfather;
- Then for the next 6 weeks, 2 hours each fortnight supervised at the Contract Centre;
- Then for the next 6 weeks, 4 hours each Sunday unsupervised;
- From then on, each alternate weekend from after school Friday until before school Monday and 1/2 of the school holidays;
- The Father to make all long term decisions (the big 5 area major long term issues), to actively seek the Mother’s imput on such issues and keep her imformed of such decisions;
- Requiring the Father, the Mother and the kids to attend Counselling (separate Counsellors) and follow the Counsellors’ reasonable recommendations;
- The Father to attend a ‘Turning ito Kids program and a ‘Keep Calm and Parent On’ program;
- The Children were in a room awaiting the decision. The final orders to be explained to the Children by the Independent Children’s Lawyer and the Family Consultant, and the handover of the children to the Father be facilitated today on the terms the Family Consultant determines having regard to the reactions of the children.
The Mother was unable to separate her own needs from those of the children, an important requirement in parenting.
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.
Ralton & Ralton  FamCAFC 182 (7 September 2017)
Last Updated: 21 September 2017
FAMILY COURT OF AUSTRALIA
RALTON & RALTON
FAMILY LAW – APPEAL – CHILDREN – With whom the children live – Application of domestic and international human rights law under the Family Law Act 1975 (Cth) – Procedural fairness – Bias – Weight attributed to the evidence – Where there is no merit in any of the grounds of appeal – Appeal dismissed – Mother to pay the father’s costs of the appeal.
FAMILY LAW – APPEAL – COSTS – Where the mother sought to appeal a costs order relating to an unsuccessful stay application – Where the grounds of appeal are not competent – Appeal dismissed.
APPEAL – APPLICATION IN AN APPEAL – Further evidence – Evidence of events which have occurred after the orders appealed from were made – Improperly obtained evidence – Evidence which was available to the mother at the time of the hearing before the primary judge – Consideration of principles in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Application to issue subpoenas – Subpoenas not an appropriate procedure for an appeal – Application dismissed.
Allesch v Maunz (2000) 203 CLR 172
Barclay & Orton  FamCAFC 159
Bondelmonte v Bondelmonte (2017) 341 ALR 179
CDJ v VAJ (1998) 197 CLR 172
Hartmann& Gardiner  FamCAFC 126
Helbig & Rowe  FamCAFC 117
Metwally v University of Wollongong (1985) 60 ALR 68
Oaks & Udall  FamCAFC 211
SCVG & KLD  FamCAFC 100
7 September 2017
Bryant CJ, Strickland & Aldridge JJ
24 February 2017
LOWER COURT JURISDICTION:
Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE:
17 June 2016
LOWER COURT MNC:
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ebejer & Associates
(1) The Independent Children’s Lawyer have leave to appear and present oral submissions in response to the submissions of the mother.
(2) Appeals SOA 46 of 2016 and SOA 59 of 2016 be dismissed.
(3) The Applications in an Appeal filed on 16 December 2016 and 13 February 2017 be dismissed.
(4) The mother is to pay the father’s costs of the appeals as agreed or in default of agreement as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE
Appeal Numbers: SOA 46 of 2016; SOA 59 of 2016
File Number: MLC 10904 of 2009
Independent Children’s Lawyer
REASONS FOR JUDGMENT
APPEAL NO. SOA 46 OF 2016
- By an Amended Notice of Appeal filed on 24 November 2016, Ms Ralton (“the mother”) appeals against parenting orders made by Judge Riethmuller on 17 June 2016. Those orders effected a significant change in the living and care arrangements of the children the subject of the orders, B and C (“the children”), who up to that point had lived with the mother.
- The orders provided that the children live with Mr Ralton (“the father”), who was to also have sole parental responsibility for them, for the mother to spend limited supervised time with the children for two hours on C’s birthday, for four hours on Christmas Day, and for two hours per fortnight from 1 December 2016 to 15 January 2017. The mother was restrained from contacting the children outside of this regime until 16 January 2017. From that date, the children were to spend four hours each alternate Sunday with the mother, unsupervised for six visits. Thereafter, the children were to spend each alternate weekend from after school Friday until before school on Monday and half of the school holidays with the mother.
- The context for the proceedings before the primary judge is as follows. In 2010, orders were made in the Federal Circuit Court of Australia providing for the children to spend regular time with the father. Difficulties arose in implementing this time in 2014 and 2015 and the children spent time with the father intermittently. The child B, in particular, became reluctant to see his father. In January and February 2016 B avoided being collected by his father by running away from school on two occasions. The orders providing for the children to spend time with the father were suspended during the hearing, pending judgment.
- The significant factor that led to his Honour making the orders moving the children to live with the father were his findings that the children were “at risk of longer-term psychological harm in the mother’s household” and that if they remained in the mother’s care they would not have any real relationship with the father.
- An Independent Children’s Lawyer (“ICL”) was appointed and generally supported the father’s position at the trial. She was not intending to appear on the appeal, but subsequently changed her position and sought leave to appear. The mother opposed that application but we granted leave and permitted counsel for the ICL to make oral submissions in response to submissions made by the mother that impugned her conduct.
- The parties commenced a relationship in 2005. They married in 2006 and separated shortly afterwards, sometime in 2007. It seems that there were subsequent attempts to reconcile.
- B was born in 2007 and C was born in 2009.
- It will be observed that the reasons in relation to this appeal focus significantly on B and his relationship with his parents and focus less on C. That too is true of the primary judge’s reasons. B was the focus of attention because he was the child who was obviously displaying behavioural difficulties and was the primary focus of the mother’s submissions to the primary judge and also to us. C, on the other hand, who was described by family therapist Ms Y as “a very, resilient, gregarious, outgoing child” (quoted by the primary judge at ), seemed to have much less difficulty in moving between the two households. It is important to keep in mind that the primary judge found that the orders were in the best interests of both children.
- On 21 June 2016 the mother filed a Notice of Appeal which raised 53 grounds of appeal. On 24 November 2016 she filed an Amended Notice of Appeal. It contained just four grounds of appeal, which are as follows:
- The trial was a miscarriage of justice, in breach of procedural fairness/natural justice and due process of a chapter III court, judge failed to follow rule of law that everyone shall be equal, exercised excess jurisdiction, the mother was not of professional competence to be given a fair hearing under, Dietrich v The Queen, R v Nudd  QCA 154 at , International Finance Trust Company Limited v New South Wales Crime Commission  HCA 49 12 November 2009  and MCGREGOR & MCGREGOR  FamCAFC 69 [31-55].
- The judge made a jurisdictional error, exercised his power in bad faith when determining ‘findings of fact’ and family violence, showed actual bias and advocated for the father. He failed to be guided by the Family violence best practice principles edition 3.2 December 2015 to duly investigate, raise assault in the proceedings within the family report, failed to appoint expertise and clinical experience in family violence or abuse.
- The judge erred was plainly wrong and failed to give adequate consideration to s. 60B, s. 60CC, s. 69ZN(5) s. 4AB, showed intent to fracture relationship between the children and their mother and breached the Australian Human Rights Commission Act 1986.
- The judge erred, was plainly wrong when saying, “Yes. Firstly, there’s no charter of human rights applicable to children in this country. The Charter of Human Rights and Responsibilities Act 2006 (Vic) a charter for all ‘person’ means a ‘human being’, he gave insufficient weight to the children’s wishes and views, failed to apply s. 60B(4) and breached the Australian Treaty Series 1991 No 4 Convention on the Rights of the Child on 17 June 2016.
(As per the original)
- As can be seen, these grounds are difficult to follow and understand. The mother’s submissions made in support of them ranged widely. Indeed, the submissions did not seek to explain why the primary judge erred but rather were a lengthy and detailed assertion of wrongdoing by his Honour.
- For example, in her submissions as to Ground 1, the mother relied upon some 65 paragraphs of submissions. Each paragraph was simply a further assertion of error. Most were entirely irrelevant to the ground of appeal the subject of that part of the submissions — notwithstanding that the ground was directed to the process followed by his Honour and raised issues such as a lack of procedural fairness, denial of natural justice and bias, most of the submissions did not refer to these issues but rather were complaints against his Honour’s substantive findings.
- Some of the submissions were frankly merely abusive. Three examples will suffice:
mm. The judge appears to be exploiting and trafficking children by engaging in false, bias evidence of parent alienation and enmeshment to ensure court experts profit from the children. Correspondence received from ICL and the father’s lawyer insisting the maternal grandparents be subjected to paying for supervised visits to see their grandchildren.
- Judge failed to protect, engaged in continuous torture and trauma of the children, participated in a ‘set up’ on 13 April 2016, failing to provide orders. The children were placed in danger near a […] busy road knowing B was running away from the father. Judge colluded in ‘setting up’ the children giving them a false sense of security with interim orders on 13 May 2016 ceasing time with the father and then removing them from their mother on 17 June 2016.
- Judge failed to protect and engaged in cruel, separation violence against the children and mother based on fictitious, dangerous assumptions the mother is a psychological risk.
(As per the original) (Citations omitted)
- Accordingly, we do not propose to deal with these submissions seriatim but rather we will address what we understand to be the mother’s main challenges to his Honour’s orders.
- In her oral submissions the mother said that her submissions raised four areas of contention, which were miscarriage of justice, issues of statutory interpretation, error of jurisdiction and constitutional issues relating to the application of the external affairs power. Again, we did not find this to be of assistance in understanding the mother’s appeal; instead, we shall deal with the mother’s submissions by grouping them into the following subjects:
- Was the mother afforded procedural fairness? Should there have been an adjournment of the proceedings?
- Were his Honour and the expert witnesses biased?
- Did the expert witnesses have the requisite expertise and should their opinions have been accepted?
- Was inappropriate weight given to the following matters and were they the subject of incorrect findings:
- B’s views;
- B’s expressed fear of his father;
- The good care provided by the mother and the children’s attachment to her;
- The father’s parenting (which the mother asserted to be abusive);
- Family violence.
- Before we move to these matters it is convenient to deal with the mother’s submissions that his Honour erred because he failed to apply the Charter of Human Rights and Responsibilities Act 2006 (Vic), Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”) and the United Nations Convention on the Rights of the Child (“the Convention”).
- The first is an Act of the State of Victoria and cannot apply to proceedings under the Family Law Act 1975 (Cth) (“the Family Law Act”) or override its provisions.
- The AHRC Act is an Act of the Commonwealth of Australia. It does not, however, purport to establish a set of “rights” which apply to and/or supersede other federal legislation. Section 4 provides that it is not the intention of the Act to exclude or limit the operation of any Act capable of operating concurrently with it. The Family Law Act is such an Act. Instead, the AHRC Act deals with the creation and powers of the Australian Human Rights Commission.
- Finally, although Australia has ratified the Convention and while it is referred to in s 60B(4) of the Family Law Act, the contents of the Convention are not enshrined as operative principles of law. Ratification itself has no direct legal effect upon domestic law and the Convention is applicable only to the extent that it has been incorporated by specific provisions of the Family Law Act. Accordingly, the Court applies the Family Law Act and not the Convention.
Was the mother afforded procedural fairness?
- The mother contended that she was not afforded procedural fairness by the primary judge. There were three aspects to this complaint. First, the mother asserted that she was at a disadvantage during the proceedings because while the father and the ICL were legally represented, the mother acted for herself. Second, the mother argued that she was denied procedural fairness because the primary judge refused to order the adjournments the mother sought to adequately prepare her case. Finally, she also complained that the final hearing was improperly brought forward by 12 months.
- In order to understand the mother’s submissions it is necessary to set out in some detail the procedural history of the matter. In doing so, we note that we did not have the benefit of all of the relevant transcripts because the mother did not include them all in the appeal books.
- However, for the reasons that follow it is clear that the mother was given every reasonable opportunity to prepare for the final hearing, which for obvious and pressing reasons was quite rightly expedited. Further, as also emerges from the history of the matter, the mother was in fact granted nearly all of the adjournments she sought, although not necessarily for the length of time that she requested.
- The procedural history of the matter is as follows.
- On 21 October 2010 final parenting orders were made providing for the children to live with the mother and spend time with the father each alternate weekend and during school holidays.
- On 14 November 2014 the father filed a Contravention Application which asserted that on 24 October 2014 the mother failed to have the children spend time with him. The application was returnable on 10 February 2015.
- On 5 December 2014 the mother filed an Application and Summons for an Intervention Order and Interim Intervention Order at Suburb J Justice Centre.
- On 10 February 2015 orders were made requiring the parties to attend on a family consultant the following day for a Child Inclusive Conference. The family consultant recommended that the parties engage in family therapy with Ms Y who is a family therapist. This the parties did, for a period of time.
- The matter came before the Court again on 5 August 2015 and the parties and the children saw a family consultant on 11 August 2015. On that day orders were made for the children to spend time with the father each Friday evening in one week and from Friday to Saturday afternoon in the alternate week.
- In September 2015 B told a teacher at his school that he had been assaulted by his father who had hit him in the back of the head and slapped him twice in the face. The school reported this to the police and subsequently the mother refused to have the children spend time with the father.
- The police interviewed B and, on a later date, the father. The police were of the view that the evidence was not sufficient to take any action against the father.
- On 5 October 2015 the father filed an Application in a Case seeking resumption of time with the children. It came before the Court on 4 November 2015 when orders to that effect were made. The parenting proceedings were fixed for a final hearing on 22 February 2017 and appropriate directions for the filing of evidence were made. The Contravention Application was listed for hearing at the same time.
- The matter was before the Court again on 18 December 2015 when orders were made for the children to spend various periods of time with the father in December and January.
- Difficulties arose and on a number of occasions the children did not spend the time with the father that had been ordered.
- On 5 February 2016 the father went to school to collect the children under the then current orders. B could not be found. He had run away from school and had hidden. He made two 000 calls and had informed the operator he would only come out when the police arrived.
- The father filed an Application in a Case on 2 February 2016. It sought orders that both children live with him. It came before the Court on 12 February 2016 when orders were made for the preparation of a Family Report.
- The matter was again before the Court on 22 February 2016 when the father pressed for an interim order that the children live with him. By this stage it was known that a family consultant would conduct interviews on 17 March 2016 and that a Family Report would be prepared by 29 March 2016.
- His Honour then proceeded to hear oral evidence from Ms Y, the family therapist who had earlier conducted the family therapy pursuant to orders made on 10 February 2015; Ms T, a psychologist who provided therapeutic support and counselling for the children at the parenting centre operated by Ms Y; Mr G, the principal of the children’s school; and Ms M, the assistant principal.
- After hearing this evidence his Honour decided not to proceed further with the interim hearing but to bring on the final hearing urgently. He indicated to the parties that the evidence heard would be taken into account at that final hearing which would take place in April 2016. The trial directions made on 4 November 2015 were to apply to the new date.
- The mother did not object to that course and the hearing was fixed for 11 April 2016.
- On 8 April 2016 the matter was listed before his Honour for the release of the Family Report. The parties and the ICL were then given some time to consider the report and whether further or different case management orders were required.
- Upon resumption the mother made a series of oral applications. The first was:
[MS RALTON]: … I’m seeking that the court apply equitable estoppel regarding a request for the change of custody in the application made by [Mr Ralton] because a decision was already made and it was agreed in final orders in 2010.
(Transcript 8 April 2016, 3)
- We pause to observe that neither equitable estoppel nor res judicata (or, at least, cause of action estoppel, to which we think the mother may have intended to refer), apply to parenting orders. It is sufficient to refer to Zabaneh& Zabaneh  FamCA 18; (1986) FLC 91-766 at 75,587 and to s 65D(2) of the Family Law Act.
- After his Honour indicated that the principle of equitable estoppel did not apply to the parenting proceedings before him the following exchange occurred:
[MS RALTON]: All right. Okay. Thank you for explaining. All right. I will move onto – under the procedural fairness, extending preparation time for myself. In the alternative, an extension of four months to allow for procedural fairness to prepare this case, and I refer to the case R & R (2014) EWFC 48. I seek that the court allow for further evidence to be adduced by the mother. This would allow current variation to an existing intervention order listing the children as affected family members waiting to be heard on 13 April at the [Suburb J] Justice Centre under section 68R, section 60CG of the Family Law Act.
HIS HONOUR: Well, ma’am, if there’s something that has occurred between you and the father and/or the children that would be relevant to be [sic] the parenting decision, there’s no reason I can’t hear the evidence about that in these proceedings.
[MS RALTON]: Sorry, on Monday? Yes. Okay. Okay. Is it okay for me to go through some things now or would you prefer me to go through it on Monday?
HIS HONOUR: Well, if there’s matters that I should rule upon now before everyone comes on Monday, I will hear those applications. But if not, it’s appropriate that I hear it as part of the trial. Today was to ensure that there were no procedural issues that I might have to deal with, so that the trial would be ready to be commenced on Monday.
(Transcript 8 April 2016, 4)
- An application was also made for B to be permitted to write a letter to his Honour, which was refused. As the primary judge pointed out to the mother, the children’s views are normally placed before the Court via the family consultant and the ICL, and it is not usually appropriate for a child to write to the judge.
- The mother sought and received permission to show the Family Report to Associate Professor H (“the Associate Professor”), an associate professor of psychiatry and a clinical psychiatrist, and she was advised that if she wished to call him as a witness, she should at the least provide some sort of outline of his evidence.
- The hearing concluded with a discussion as to the time particular witnesses would be called.
- We have conducted this rather tedious course of examining what occurred on 8 April 2016, just a few days before the hearing, in order to demonstrate that there was only one matter raised by the mother in support of her claim that she was not prepared for the hearing. That was that she wished to adduce evidence of the outcome of the proceedings at the Suburb J Justice Centre on 13 April 2016. As his Honour said at the time “there’s no reason I can’t hear the evidence about that in these proceedings” (Transcript 8 April 2016, 4).
- The hearing recommenced on 11 April 2016. His Honour spent some time hearing and ruling on objections to the mother’s affidavit. The mother then made an application for an adjournment. The reasons given for seeking that course appear from the following exchanges:
[MS RALTON]: Okay. With this information now, in regards to having to hand over this, this – am I able to get more time to do this or – because —
HIS HONOUR: Well, ma’am, the case has been running for months.
[MS RALTON]: Okay. Yes. Thank you.
HIS HONOUR: It’s – you know, it’s a strange irony that everyone complains their court cases take so long to come on, but in every trial I’ve heard or been in, when you actually get to the point of starting the trial the enormity of the issues about putting everything before the court – – –
[MS RALTON]: Yes, It’s just that, your Honour – – –
HIS HONOUR: – – – is so large it never feels like you’ve had enough time And that’s – – –
[MS RALTON]: Well, in regards to the – the fact that a decision could be made on whether or not I’m parent alienating. That’s a big thing and I haven’t had time to prepare for that. The report was only given on Friday that I’ve been accused of it, and I – I need time to – to support – – –
HIS HONOUR: How much time are you seeking for that?
[MS RALTON]: If I could get at least one or two months, at least.
HIS HONOUR: And what is it that you want to do in those one or two months.
[MS RALTON]: Well, I would like to – well, obviously please the other party as well, but in regards to my case is that I have – there’s potential there to have my children taken off me. And I’ve been accused of something that I believe that I haven’t done.
HIS HONOUR: Well – – –
[MS RALTON]: And I would like to be able to present the facts or research in regards to that. And I feel I haven’t had enough time to do that.
[MS RALTON]: Well, I would really like to be able to present the family report writer with my information in regards to research, in regards to parent alienation, family violence.
HIS HONOUR: Yes. Well, and that’s the material you’ve referred to in your affidavit already, is it?
[MS RALTON]: Well, I haven’t got copies and I need to give her copies.
HIS HONOUR: So it’s just a matter of getting copies of these articles. All right. Have you ever read these articles?
[MS RALTON]: I have. I’ve briefly highlighted some things, but I’ve been inundated with all of this. Yes.
[MS RALTON]: I would like the time to research and to make sure that I had the right questions for the family report writer. I just don’t think I’ve been given enough time to be able to go through her report appropriately and pinpoint and argue my side.
HIS HONOUR: And so how much longer do you want for that?
[MS RALTON]: A month or if – yes.
(Transcript 11 April 2016, 52 – 53, 55, 57)
- The application was refused but his Honour indicated that depending upon the progress of the matter he might permit the mother to cross-examine the family consultant at a later date. It is useful to note at this stage that the mother sought “one or two months, at least” to prepare for the cross-examination of the family consultant (Transcript 11 April 2016, 53).
- The mother then sought an adjournment so that she could engage the Associate Professor. That application was refused but because of the uncertainty as to whether the expert would, in fact, be engaged and as to the timing of any report, his Honour indicated that if a report could be received in a reasonable time he would reconsider the application.
- The father then withdrew the Contravention Application and the hearing of the parenting matter proceeded.
- On 11 April 2016, at the conclusion of the day’s evidence, the mother raised the issue of the Associate Professor, to whom she had not had the time to pass relevant material. His Honour informed the mother that there would be no lengthy adjournment and that she should attend to this promptly. Clearly, his Honour had in mind making arrangements for the mother to call the Associate Professor, and he advised the mother that she should seek a report in writing which could be shown to the father and the ICL.
- The following day the mother informed the primary judge that she was unable to say when the report of the Associate Professor would be available because although she had sent him an email he had not replied. The primary judge told the mother that she needed to focus on her housekeeping and asked her to telephone the Associate Professor during the morning break to find out when he would be available “so that I can make some arrangements about how this trial is going to run” (Transcript 12 April 2016, 115 – 116).
- Later that day the mother informed the Court that she expected a report within 24 hours. His Honour indicated that the family consultant would not give evidence this week but would do so “next week or the week after” (Transcript 12 April 2016, 145).
- On resumption on 13 April 2016 the mother informed the court that the Associate Professor would be available the following week (Transcript 13 April 2016, 236). She had obtained a report from him which was not yet signed because he had not yet been paid. It had not been shown to the father or to the ICL. His Honour said that he would work out the dates for the further hearing later that day but that he would be mindful of the commitments of the barristers because he did not want to cause problems with other litigants.
- At the end of the day, dates for the resumed hearing were discussed with both counsel indicating that they had difficulties on some days. The upshot was that the parties would be informed of the dates by email. It is useful to record at this stage that, in due course, the report of the Associate Professor and a letter from Dr S, a general practitioner who had treated B on occasions, were tendered without objection. Neither witness was required for crossexamination.
- The hearing resumed on 9 May 2016. It quickly became apparent that the mother thought that the matter was to be heard on 9 and 10 May and also 26 and 27 May. When she was informed that the matter was scheduled to proceed on the week commencing 9 May and to conclude that week the mother made a further adjournment application. She informed the Court that she had arranged for the Associate Professor and Dr S to give evidence on 26 and 27 May. She also said that as she had thought that Ms Y and Ms T were to be called on those days, she had not prepared her cross-examination of them. We note that on 12 April 2016 the mother had said that she did not wish to cross-examine either of them (Transcript 12 April 2016, 114).
- The upshot was that his Honour decided that he would give the mother some time for preparation and determined that Ms Y and Ms T should give their evidence on 12 and 13 May 2016. The family consultant was to be questioned at the conclusion of their evidence.
- After the mother gave evidence and was cross-examined, the matter was then adjourned to 12 May 2016, giving the mother two days to prepare for the crossexamination of Ms Y and Ms T.
- Those witnesses gave evidence on 12 May and were extensively crossexamined by the mother.
- The family consultant gave evidence in the afternoon of 12 May 2016 and the following day. During the course of the family consultant’s evidence, the mother foreshadowed an adjournment application to await a decision from the Suburb J Justice Centre and obtain further evidence from the Associate Professor (Transcript 13 May 2016, 661). His Honour indicated that he would hear it at the conclusion of the family consultant’s evidence but the issue was not later pressed. The mother made no complaint to the primary judge that she was not in a position to conduct the cross-examination. It had been one month since the mother had indicated to his Honour that she needed one or two months to prepare for this.
- The proceedings concluded on 27 May when the parties made closing submissions.
- The mother’s complaints under this topic appear to be that:
- His Honour brought the hearing forward from 22 February 2017 to 11 April 2016;
- The mother’s many adjournment applications were wrongly refused;
- Many parts of the mother’s affidavit were struck out when the mother had no knowledge of what to do and was not given time to seek advice or to prepare;
- The mother was unable to address the Court or defend herself because she was incompetent in legal issues whereas the father and the ICL were represented by barristers; and
- His Honour was biased.
Should the hearing date have been brought forward from 22 February 2017 to 11 April 2016?
- The mother complains that the primary judge wrongly brought forward the date of the final hearing from 22 February 2017 to 11 April 2016.
- At the outset we wish to record the extraordinary nature of this submission. The effect of it is that the mother would have preferred the determination of the issues of the parenting arrangement for her children to have been deferred for 10 and a half months rather than have them heard promptly. She gave no reason for this other than to say that she needed time to prepare.
- It is appropriate to recall that the change in dates came about because of the application made by the father for an interim order that the children live with him after B ran away from school on … February 2016 and after the primary judge heard the evidence of Ms Y, Ms T, the school principal and the assistant principal, all of whom were very concerned about B’s actions.
- The father’s application was brought on the grounds that there was no rational basis for B’s expressed fear of him, which he submitted must have been inculcated by the mother.
- The evidence of Ms Y given on 22 February 2016 was that she had concerns for the mother’s ability appropriately to care for the children. When asked to outline those concerns she gave a lengthy answer which included the following:
[MS Y]: — My concerns relate to the – what I believe is [B] is not free from the spoken and unspoken views of the mother, and how she perceives the father, and how she perceives the father in terms of being unreasonable, dangerous, frightening, threatening and intimidating, and many of those words have been used by herself to me. I’m concerned about how [B’s] exposed to those views. I know that when [B] tells me, for example that he has heard the mother on the phone to her father in discussing their views of [Mr Ralton]. I know about how he’s exposed to the non-verbal, as he discusses with me in interviews. He’s very aware that the mother’s very worried about him spending time with the father, and that it clearly doesn’t please her, because [B] makes comments like, “It’s very hard to keep Mum and Dad happy” so I’m very concerned about how the mother exposes both children, but especially [B] to the conflict between the adults … So my concern really is about how [B] can present with heightened levels of fear and anxiety that really seems to be more a transference from his mother rather than any reality of any experience with the father, and that – I’m concerned that he feels burdened to be loyal to his mother, even at a cost of a perfectly good relationship with his father. Those things are concerning in terms of how this child then feels it’s his duty and role to support his mother, rather than having the expectation to have his needs met by his parents.
(Transcript 22 February 2016, 18 – 19)
- Ms T, in turn, said:
[MS T]: — We were – both [Ms Y] and myself were speaking about [B’s] anxiety and – and how that could be managed and supported. We were hoping that the mother could understand that – about the anxiety and to – to encourage [B] sorry – the phone, sorry – to encourage [B] to see his father more and be more supportive in that relationship. We felt that – personally, I felt that [B] was getting heaps better. He – his anxiety levels in the four sessions that I saw him were starting to drop. He was starting to really take on board the cognitive behavioural strategies I was providing him and he was doing well. He was having successful visits with his father, and we wanted that to continue.
… I just worry that her reluctance to engage with the father and her fear of the father is really limiting her own children’s relationship with him. That’s my biggest concern.
— Because things were going really well last year in June when he was having regular visits. Yes, he was still getting anxiety, but he was managing it. And then she completely disengaged from the Family Law Parenting Centre after that meeting. And then he didn’t see his father until, I believe, the last day of school in 2015. And now it’s very difficult to get him to see his father. He simply says he doesn’t want to go. But he – he doesn’t substantiate any of – any of that with any – any real reason. He – he’s – it’s [B] struggles to find reasons on why he actually doesn’t want to go.
(Transcript 22 February 2016, 29 – 30)
- The principal and assistant principal at B’s school described B’s anxiety at school on days when he was to be collected by his father and their concerns that this anxiety would again lead him to run away from school.
- His Honour then, properly, observed that the nature of the orders sought made it difficult for them to be considered on an interim basis. He said:
HIS HONOUR: … if I were to accept everything they have said, I still would have to weigh in the balance the risks of a change which on your best case is, at the very least, two devastated children in the short term and children that are relatively young and the risk of serious fracturing the primary carer. That’s a fairly serious question I have to turn my mind to, isn’t it?
(Transcript 22 February 2016, 53)
- Faced with the serious issues raised by the evidence that he had just heard and the very concerning behaviour of B, his Honour took the very appropriate and responsible course of giving this matter priority over other matters in his docket by bringing forward the final hearing. The matter was plainly urgent.
- The only question that arises is whether the mother was given adequate time, in the circumstances, to prepare for the hearing and thus whether she was afforded procedural fairness.
- It is telling, in our opinion, that at no time has the mother identified any preparatory steps that she would have taken if the matter was heard in February 2017 but which she could not take because the matter was heard in April and May 2016.
- Further, the mother raised no objection to this course at the time it was taken.
- In the course of her oral submissions on the appeal the mother explained that she needed a significant adjournment so that she could obtain legal aid. She said it took some seven weeks to get an appointment and when she did get one the Legal Aid Centre could not go through all her documentation at the appointment within days of the trial. Apparently, several applications were made.
- The mother said that one of the difficulties was that the matter commenced as a Contravention Application for which legal aid is not provided. It was only late in the piece, when the matter became a parenting case following the withdrawal of the Contravention Application, that legal aid could be sought. She also indicated that she had approached a community legal centre and there was a suggestion that a barrister might be able to assist her.
- The problem is that none of this was put to his Honour, as the above chronology makes clear. It is very difficult therefore for the mother to assert that his Honour erred by ignoring these matters and refusing the adjournment.
- Further, the mother had no right to legal representation (Dietrich v The Queen  HCA 57; (1992) 177 CLR 292 at 297 – 298 and 311; New South Wales v Canellis  HCA 51; (1994) 181 CLR 309 at 328). The fact that the mother did not have legal representation did not, of itself, require that the primary judge accede to an adjournment.
- The primary judge was, however, obliged to ensure that the mother received a fair hearing.
- The requirement that parties be afforded procedural fairness is a wellestablished principle recognised in the general law. As Kirby J observed in Allesch v Maunz (2000) 203 CLR 172 at 184 – 185:
- It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
- The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.
- In Kioa v West  HCA 81; (1985) 159 CLR 550 at 585, Mason J indicated that the requirements of procedural fairness must be determined in the light of the statutory context in which the proceedings arise:
… The expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with the procedures that are fair to the individual considered in light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect of permits to be taken into account as legitimate considerations…
- As the Full Court of this Court has noted, “in examining whether a judicial officer has failed to afford procedural fairness to a litigant, it is beyond doubt that it is necessary to consider the nature of the proceedings before the court and particularly what is in dispute”: Hartmann & Gardiner  FamCAFC 126 at .
- Whilst an adjournment could properly be sought on the basis of an application for legal aid, very much more information would have been required for the application to be persuasive. The dates of the applications, the information provided in the applications and the responses of legal aid would all be highly relevant to the determination of the application for an adjournment on that basis.
- It follows that even if such information had been provided to the primary judge, that would not have guaranteed an adjournment. This matter was clearly urgent and the mother’s approaches to legal aid were but one matter to be taken into account when setting down the date of the final hearing.
- There is no merit in this aspect of the challenge.
Were the mother’s adjournment applications wrongly refused?
- The mother submitted that the adjournment applications she made on 18 March 2016, 8 and 11 April 2016 and 9 and 13 May 2016 were wrongfully refused.
- We were not provided with the transcript of 18 March 2016 or with any details of the application made by the mother on that day. We are therefore unable to take that aspect of the matter any further.
- On 8 April 2016 the mother sought an adjournment so as to be able to place before the Court the outcome of proceedings at the Suburb J Justice Centre on 13 April 2016. As his Honour pointed out, evidence of the events could be given without the matter being adjourned.
- On 11 April 2016 the mother sought to defer the cross-examination of the family consultant until she had been given sufficient time to prepare for it. Ultimately, as we have recorded, his Honour adopted that course and the family consultant was cross-examined on 12 and 13 May 2016. The mother also sought an adjournment to consult the Associate Professor. A report from him was ultimately admitted into evidence. In essence, therefore, the mother succeeded on that application.
- On the same date the mother was handed an amended list of objections by the father’s counsel. The mother sought an adjournment to deal with the list.
- A list of objections had already been given to the mother on 8 April 2016 so that she had the opportunity to consider them before the commencement of the hearing on 11 April. On 11 April, she sought an adjournment to deal with the new list, which in fact significantly reduced the number of objections now made by the father and added no new objections. In that sense, it simplified the process for the mother. The primary judge also indicated that each objection would be dealt with individually so the mother would have a chance to address each objection in turn. In those circumstances, an adjournment was clearly unnecessary.
- We have already set out the basis of the mother’s application for an adjournment on 9 May 2016. Again, the mother was successful, although not to the extent she sought — the matter was adjourned for one week and not for two weeks. However, upon resumption the mother did not again indicate that she was not prepared. Thus the aim of the adjournment was achieved. Again, in essence, the application was successful.
- On 13 May 2016, immediately after lunch, the mother sought an adjournment so that the outcome of the proceedings in Suburb J Justice Centre would be known and so that the Associate Professor could be called. At this stage of the hearing the Associate Professor’s report had been admitted into evidence and he was not required for cross-examination.
- The primary judge indicated that any further evidence from the Associate Professor should be in writing but said that he would consider any adjournment application at the conclusion of the family consultant’s evidence.
- The mother did not renew the application later in the day and the proceedings were adjourned to 27 May 2016 for submissions. The mother did not seek to place any further evidence from the Associate Professor before the court.
- This aspect of the challenge is therefore entirely misconceived.
Were parts of the mother’s affidavit unfairly struck out?
- It is correct that significant parts of the mother’s affidavit were rejected on the objection of the father and the ICL. The mother’s complaint was identified by her as:
My complaint in regards to that is that I had no time to even seek legal advice in regards to that document. I had no idea what that list of objections was about. It was given to me on Friday and I couldn’t seek legal advice on the weekend.
(Appeal Transcript 24 February 2017, 34)
- The thrust of the mother’s submissions therefore was not that particular passages in the affidavit were improperly rejected but rather that the process was unfair because she was not represented.
- We have already dealt with the mother’s attempts to obtain legal representation. As is clear from that discussion, there was no indication that a grant of legal aid was either likely or imminent.
- Courts have an obligation to inform self-represented litigants about court practice and procedure and to ensure that they are afforded procedural fairness: Re F: Litigants in Person Guidelines (2001) FLC 93–072 at . The fact of being self-represented, however, does not give rise to any special entitlements — as McHugh J famously said, a “lack of legal knowledge is a misfortune, not a privilege” (Gallo v Dawson  HCA 30; (1990) 93 ALR 479 at 481).
- On the first day of the trial, when the primary judge began to deal with the objections, the mother told the primary judge that she needed an adjournment to properly address each of the objections. She did not indicate that she wanted to seek legal advice as to how to proceed. There was therefore no obligation on the primary judge to adjourn the proceedings to allow the mother to obtain advice.
- As we have already discussed above, the mother had the benefit of having notice of the objections to her affidavit in advance and had the weekend to prepare responses to those objections. The transcript shows that each objection was dealt with individually and that the mother had a chance to address his Honour with respect to each objection.
- In these circumstances it is difficult for the mother to argue that the process for dealing with objections was unfair and we are not convinced that it was.
- This aspect of the mother’s argument fails.
That the mother was unable to address the court or defend herself because she was incompetent in legal issues whereas the father and the ICL were represented by barristers
- As we have pointed out the mother was not able to obtain legal representation in time for the hearing. This, then, is in reality a complaint that the matter ought to have been adjourned but was not.
- For the reasons that we have just given it was not an error for the primary judge to proceed in circumstances where the father and the ICL were represented but the mother was not.
Was his Honour biased?
- Many of the mother’s complaints about the primary judge being biased were, in substance, complaints that he did not accept her contentions on particular issues. Given that she was a litigant in person and given the significant nature of the orders made, we shall approach her submissions by also examining what we consider to be the relevant and significant substantive challenges.
- The mother submits that his Honour was biased against her because “Judge showed actual bias for Stay submitted 17 June 2016, he amended order on 22 June 2016 to purposely hinder Stay upon receiving email correspondence from father’s lawyer” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(h)). We do not understand what this means and the assertion was never explained. There was no appeal against any orders made on 17 or 22 June 2016.
- The submission continued that the primary judge “showed actual bias, failed to give due weight to evidence affidavit of Mr and Mrs N, Mr MN and Ms V, ‘referring’ as “not significant” deeming father’s as ‘significant’” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(m)).
- Mr MN, the mother’s brother, gave evidence of an incident on 17 April 2016 when B refused to enter the E Country Club to spend time with his father. B’s attitude towards his father was the subject of much evidence. Ultimately, as the primary judge found, the real issue in the case was not B’s attitude towards and feelings about his father but rather the cause. This affidavit did not assist the resolution of that issue.
- The affidavit evidence of Mrs N (the maternal grandmother) and Ms V (an acquaintance of the mother) was brief — the text of their affidavits barely extended beyond one page. Mr N’s (the maternal grandfather) evidence was more extensive and dealt with an incident at a school fete in 2015.
- The primary judge made the following findings:
- There were some witnesses that were on affidavit, her own mother, [Ms V] and her brother who were not required for cross-examination and the matters that they referred to were not significant in the scheme of the case.
- There was one incident with respect to a school fete where the children were to be with the father and the father was there with the children. The maternal grandfather and grandmother also attended at the fete. A point of dispute between the parties is whether or not the father placed his hand on the shoulder of the grandfather when suggesting to the grandfather that he should not be there. The father says he did not. The grandfather says that he did.
- Ultimately I do not see that as a significant issue in the case. It is not suggested that it was anything more than the type of interaction that is not uncommon at a place such as a fete or other busy venue. It is not suggested that it was done in a way that would be different to how one would talk about someone tapping someone on their shoulder. It may well be that one, or the other has a slightly faulty memory with respect to that particular detail.
- Thus the primary judge found that the events referred to by these witnesses were not, in the scheme of things, as significant as many of the other important issues that required consideration. His Honour’s reasons adequately explain why limited weight was given to this evidence.
- A judge is not biased merely because he or she sees particular evidence in a different light to the party who adduced it.
- The mother submitted that “Judge showed actual bias failing to apply Family Law Rules 2004 for expert reports outlined in submissions and failed to apply rule 15.64 to proceedings and Stay” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(p)).
- It is not clear to what expert reports the mother is referring. The only expert report received into evidence was that of the Associate Professor, which was tendered by the mother.
- Three reports of Ms D, the family consultant, became part of the evidence. They were, however, reports obtained under s 62G of the Family Law Act and not under rr 15.59 to 15.64 of the Family Law Rules 2004 (Cth) (“the Rules”) that apply to the provision of single expert reports. Those rules do not apply to family reports.
- While Ms Y and Ms T gave evidence, they did not provide reports.
- The mother’s next contention was “Judge showed bias, only accepted opinions of court appointed experts, advocated for the father, prioritised the father’s best interest and needs before the children, disregarded primary attachment of mother/child bond and showed no regard to the emotional trauma of the children and mother” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(jj)).
- This, in essence, is a summary of the mother’s complaints as to the outcome of the proceedings. However, we will repeat, the simple fact that a litigant’s case is not accepted does not indicate that the trial judge was biased. It is entirely open to say that a judge may be wrong, whilst remaining completely impartial.
- An allegation of actual bias is a significant accusation to make against a judge. Here, the mother points to no conduct whatsoever of the primary judge that indicates bias other than to identify issues that were decided against her. That is an insufficient basis upon which to make such a serious allegation and we reject the notion that there was any indication of bias by his Honour.
- A further submission was that “the judge showed bias saying the mother did not answer questions however in cross-examination thirty-one times the father said ‘I don’t recall…’” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(nn)).
- In support of that submission, the mother referred to the following statement, made by the primary judge during the course of hearing the mother’s application on 9 May 2016: “[the mother] rarely answers what I ask her, so we just have to do the best we can” (Transcript 9 May 2016, 357).
- This statement referred to the difficulty his Honour was having in ascertaining the reasons why the mother sought an adjournment and the state of readiness of her case. Importantly, this statement was made before the mother gave evidence, so it cannot be a reference to that. It was not a finding repeated in his Honour’s reasons.
- In the reasons his Honour said:
- The mother did not often directly answer questions, sometimes taking two or three questions to get to the specific answer, having the appearance of her desiring to put her particular position rather than simply listening to and answering questions.
- I bear in mind though that she has been unrepresented throughout the proceedings and that, whilst in some ways that can be an advantage because no one knows the case better than the litigant themselves, it can also be a significant disadvantage as one is on full display to the Court not through lawyers, both at the bar table and in the witness box.
- This passage makes it clear that the primary judge was indeed concerned about the mother’s difficulty in answering questions; however, no weight was given to that concern for the reasons set out.
- The next complaint is that the primary judge “unfairly produced family report on Friday 8 April 2016 two days before trial” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(qq)).
- Of course, a judge does not produce a family report. Family reports are, however, only released by an order of the court. Here, the reports were released very promptly after they were sent to the court.
- As we have explained, the primary judge properly accelerated the hearing of this difficult and urgent matter after hearing evidence on 22 February 2016. The mother did not object to the procedural directions made at that time, including the orders that were made for the preparation of a family report.
- Obviously, the timing was always going to be tight, but as we have also explained, the mother was ultimately given an extended period of time in which to prepare her cross-examination of the family consultant.
- It was then submitted that “[t]he judge made a jurisdictional error, exercised his power in bad faith when determining ‘findings of fact’ and family violence, showed actual bias and advocated for the father … On a balance of probabilities, the father’s testimony cannot be relied upon …” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 2).
- We remain unsure of the nature of the asserted “jurisdictional error”.
- The mother asserted that B had been assaulted by the father. In doing so, she relied on the fact that B told the school principal that the father had slapped him twice and punched him in the back of the head. The principal reported the matters to the police, who investigated the claim and took no action against the father.
- B was interviewed by the family consultant, who recorded that:
- … [B] explained that his father had hurt him, a while ago, but he couldn’t remember the last time his father hurt him. He thought it might have occurred last year when his father ‘nudged’ him. The worst thing his father ever did was hit him with an open hand to the back of his head. [B] demonstrated his own hand hitting the back of his head and then smoothing over the top of his head several times. He explained that this had only occurred on one occasion and he thought his father might not have noticed that he did it…
(Family Report, 31 March 2016)
- The primary judge reached the following conclusion in relation to the suggestion that the father assaulted B:
- When I view the evidence on this issue as a whole, including the diary entries, the evidence of the mother, [Ms D’s] evidence, and the father’s evidence, I am not persuaded that this occurred. In fact, I find, on the balance of probabilities, that the father did not assault the child, as I indicated when the hearing ended, by making declarations.
- Whilst the mother does not agree with this finding, and indeed asserts that it is erroneous, the rejection of the mother’s allegations does not indicate bad faith or bias. On the evidence that was before the primary judge, that was a finding that was open to him.
- Continuing with the theme of judicial bias, the mother contended that “Judge was bias explained in detail threat was a joke to Ms T during her evidence and declared assault did not occur even when the father was untruthful” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 2(l)).
- This challenge relates to the following events. B told his mother that the father had threatened to cut off his fingers. Shortly thereafter the mother took him to see Ms F, a psychologist. Her notes of the counselling session of 27 January 2015 include the following:
– invited [B] to share more about his Dad. [B] reported that his Dad was ‘mean and grumpy all the time’. [B] reported the following examples, sharing that his Dad has said and/or done the following things when he has been staying with him:
- has said “if you don’t eat your dinner you can’t have any icecream, you’ll get a smack on the bottom and sent to bed for the rest of the night”
- has threatened “I’ll get the wooden spoon” often, and has hit [B] once on the palm of his hand, which [B] said “really stung”
- when [B] was wrestling with [K], his Dad said to them “if you touch anybody, I’ll cut your fingers off”
- When these statements were raised with the father by the family consultant, he told her that he denied the allegations (Transcript 11 February 2015, 3).
- The mother raised the allegations with the father in the course of cross-examination as follows:
On page 16, at the last paragraph that starts 30 January 2016, in the third and second last lines, it’s alleged that you say such things as:
If you touch anybody, I’ll cut your fingers off.
?—No. I haven’t actually said it in those terms. I have actually said, “I’ll cut your fingers off,” in a joking fashion to the children when they go to the lolly jar or go and get a biscuit and just muck around with them and, yes, I – off the cuff comment when I say to them, “Get your fingers out – get your hands out of there or I’ll cut your fingers off,” and they just go, “Ha ha, dad, you’re funny,” they take their lolly or biscuit and go away – – –
Okay?— – – – out of the pantry, back to the theatre room or outside. So yes, I have actually said, “I’ll cut your fingers off,” in a throwaway comment – –
Okay?— – – – not actually in touching anybody.
All right. At subparagraph (g), again, it’s alleged that you’ve said – so this is a conversation between [B] and his mother, and it’s alleged that during that conversation:
The mother asked [B], “Were you picking your nose?” and dad said jokingly, “No, mum, he meant it,” and said it angrily, “He said he will chop them off, chop my fingers off and, mum, he meant it.”
So it’s alleged here, again, that you have told [B] that you’re going to chop his fingers off. What do you say about that?—As I said earlier on, I probably say it when they’re in the lolly jar or have said it while they’re going for lollies or biscuits, but it’s just a throwaway comment. I don’t recall saying to [B], if he was picking his nose, I would chop his fingers off.
(Transcript 11 April 2016, 77 and 88)
- The mother referred to the following evidence of Ms Y and submitted that it followed that the father was not joking:
Okay. Well, the father was given, previously, details, and he actually even attended, so it’s untrue that he was not given information. Did [B] disclose to you that the father said to him, “I will cut your fingers off”?—Yes
And you just dismissed that as joking?—No
Has [B] reported to you that he’s mean and grumpy all the time?—He possibly did.
And that he was threatening him with a wooden spoon, and hit across the palm of the hand?—I don’t recall him telling me about the wooden spoon.
(Transcript 12 May 2016, 545)
- In the course of submissions before us, however, the mother accepted that all this evidence could indicate is that Ms Y did not think B was joking when he told her about his father saying he would cut his fingers off.
- Finally, the mother referred to this evidence of Ms T:
So he didn’t report to you that his father said he would chop his fingers off?—That – he did report that to me, but that was a long time ago.
Could he have said it more than once because – – -?—He could have but that issue, by the way, was also explored by [Ms Y] with the father, and sometimes parents do say silly things and they don’t mean them, and I was trying to – to – to minimise that for [B] because – – –
That’s – – – ?— – – – what is the reality that a – a person is going to do that?
That’s – – – ?—He has never done it in the past. They were words.
(Transcript 12 May 2016, 566 – 567)
- The primary judge’s findings were:
- In evidence, the mother said that she thought the most significant matter, or one of the most significant matters that [B] has raised, was an allegation that the father had threatened to chop his fingers off. This wasn’t set out in the Notice of Risk. This incident, it seems from the father’s evidence, was an offhand comment intended to be humorous when the father was gently rebuking the children for taking biscuits from the biscuit tin and calling out to them, “If you keep getting into that tin, I’ll chop your fingers off.” One can easily see that that could be an offhand comment. Taken out of context, it sounds appalling and within context it could easily be a joke.
- The work [Ms T] did with [B] soon led to him not considering that to be a real threat. It is quite a bizarre threat to consider to be real, given that it is an exceedingly unlikely event and not an event that is heard of, even in cases of the most extreme domestic violence or family violence. It seems to me on the evidence as a whole that this was, as the father described it, a humorous comment. In the context of this case, it was unfortunate that it was made. In the context of ordinary family life, I’ve little doubt that comments of this ilk in this sort of circumstance are made from time to time. I do not draw an adverse inference against the father when one looks at this comment in context.
- I have already given reasons with respect to the “chop the fingers off” comment. It has been raised by the child with [Ms T] but it was not raised by the child with the family consultant. The threat, if it were perceived to be real, is incongruent with his presentation and if it were perceived to be a real one would have expected it to be articulated quite clearly, even by a nine year old.
- The mother does not explain why these findings are said to be biased. They rest comfortably with both the evidence in the case and common sense. They were findings that were clearly open on the evidence.
- It appears that, once again, the assertion of bias is made simply because the mother’s position was not accepted. That does not support an allegation of such seriousness as actual bias.
- In summary, therefore, we are satisfied that neither the primary judge’s conduct nor his reasons bear any hallmarks of bias. For the reasons we have given, the substantive findings impugned by the mother under this heading were open to his Honour and this aspect of the appeal has not been made out.
Were the expert witnesses biased?
- The mother submitted that the expert witnesses were biased against her and that, in addition, the evidence of Ms Y and Ms T suffered from “institutional bias” because Ms T was employed by the practice owned by Ms Y.
- We will address elsewhere the mother’s challenges to their expertise and to the weight that was given to their evidence. It is sufficient to say here that there is simply no evidence of bias on the part of these witnesses. Further, only limited and unsuccessful allegations of bias were raised with these witnesses by the mother when she cross-examined them. The mother asked [Ms Y] if she was biased because she had recommended a psychiatric assessment of the mother but not the father. The witness answered that she was not and said that she considered that she had concerns about the mother that suggested such an assessment but held no similar concerns about the father (Transcript 12 May 2016, 518 and 526).
- Ms T denied the suggestion put to her that she was biased because “there was nothing nice you have said about the maternal family at all” (Transcript 12 May 2016, 564).
- The mother did not raise that allegation in her 37 pages of written submissions made to the primary judge. This is so even though those submissions accused the experts of unethical behaviour.
- It is very difficult to maintain that challenge for this reason (Metwally v University of Wollongong (1985) 60 ALR 68).
- This challenge does not succeed.
Was inappropriate weight given to certain matters and were they the subject of incorrect findings?
- The mother contended that the primary judge gave inappropriate weight to the following matters:
- B’s expressed views and his fear of his father;
- The good care provided by the mother and the children’s attachment to her;
- The father’s parenting; and
- Family violence.
- At the outset, it is necessary to observe that challenges to the weight to be given to particular matters face many hurdles, as it is very much a matter for a trial judge. Error on the part of the primary judge must be established before an appeal can succeed.
- As the High Court has recently reminded us, orders made in the exercise of a judicial discretion “can be set aside only on a strictly limited basis, in accordance with House v R”: see Bondelmonte v Bondelmonte (2017) 341 ALR 179 at .
- Speaking of the application of such principles, in Gronow v Gronow  HCA 63; (1976) 144 CLR 513 at 519 – 520 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
- Finally, in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”), McHugh, Gummow and Callinan JJ said:
- Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
B’s views and his expressed fear of his father
- The mother’s submission is simply that the primary judge did not give sufficient weight to B’s stated abhorrence and fear of his father. That fear, she submitted, was demonstrated by the evidence from the school principal and deputy principal, the school records and the police who attended the 000 call. In particular, she placed significant emphasis on the father’s threat to cut off B’s fingers, the assault that B reported to his school (both of which we have already dealt with), the father forcing B under a cold sprinkler, yelling and screaming by the father and what the mother submitted was the physical and mental abuse she suffered when the parties were living together.
- The mother also relied very heavily upon B’s diary in which he plainly set out his poor view of his father.
- As we have just indicated, challenges based on the weight to be given to various factors face a high bar.
- It is quite clear that the primary judge was cognisant of B’s fear of his father. He said:
- I turn then to consider the key factual issues that have been articulated. They, in substance, relate to issues of violence and risk. The mother filed a Notice of Risk in this case. It sets out that [B] is expressing fears and not wanting to go to his father’s household. It sets out that he was forced under a cold sprinkler in March 2016, which is an incident I’ve dealt with above. It also relies upon [B’s] journal which, when one reads it, could easily lead one to have a view that if what is set out in that journal is correct, [B] is having an appalling time when he goes to his father’s household and is being treated appallingly. It is, in many respects, almost reminiscent to a modern day rendition of something like Cinderella’s story. If it is accurate, it would be a very strong factor against him having to see his father.
- Thus it was accepted that B expressed fear of his father but the relevant inquiry was as to why this was so.
- Of the sprinkler incident, the primary judge said:
- I was troubled by the extent to which she attached significance to some events which, even on the version given by [B], it is difficult to see could be precisely as [B] outlined. For example, the complaint that he was forced to play in the cold sprinkler water. It seems apparent that this type of thing is the sort of thing that children in his age bracket do regularly, and whether in retrospect he found it not so positive an experience, it is difficult to see why significant weight would be attached to what would ordinarily be seen as a very minor incident. Similarly, some of the very minor incidents that are suggested between him and one of his half-siblings or step-siblings which have much of the air of the type of horseplay that boys of that age from time to time engage in.
- Whilst in a perfect world many of these things would not happen, one also has to bear in mind that in the real world much goes on and the weight to be attached needs to be kept in perspective.
- It also seems to me that the mother demonstrated some degree of a lack of insight into the family needs in the father’s household, particularly given that the father’s mother is very ill and that he has other children in his life. Despite this, the number of extracurricular activities remained high and the engagement of the children in school parties showed a considerable number of events during the father’s time. It showed a lack of appreciation that there needed to be some time and space in the father’s household for the father to be able to develop a relationship and have activities with the children, and also for the children to spend time with family.
- The mother directed no submissions as to why these findings were in error.
- The primary judge’s findings as to yelling and swearing were:
- The claims with respect to the father yelling and swearing at the child are significant for the mother’s case. When one looks at the diary and takes the case put by the mother, one has the impression of horrific tirades and a very stressed and terrible environment in the household. The recounting to the family consultant by [B], though, is in significantly different terms. As the family consultant sets out:
56. In relation to his father’s ‘yelling’, [B] said he had overheard his father yell and swear, occasionally the ‘f’ word, but more usually the two ‘sh’ words; ‘shit’ and ‘shut-up.’ [B] explained “I don’t like to hear” swearing, and clarified that when he overheard his father swearing it didn’t make him scared, but he believed his father “just shouldn’t do it.” [B] acknowledged that occasionally other children at school used bad language, but he claimed that they only whispered swear words.
- The father’s household may well include language such as ‘shit’ and ‘shut-up’ and words of the like and, given the father’s background, appearance and trade, I’ve little doubt that other more colourful words would be used by him from time to time. That, of itself, isn’t the end of the matter. Things must be contextualised. I’m persuaded that, when I look at the evidence as a whole, whilst it may not be Shakespearian sonnets that are whispered every day in the father’s household, but a more rough and tumble form of language, it’s certainly within the reasonable range of families in Australian society.
- This conclusion is also corroborated by the evidence of [Ms T] that [B] was not reporting negative experiences that were current at the time that she was seeing [B], just historical accounts. I would also note that [Ms T] noted a change in [B’s] presentation following the meetings that she and [Ms Y] had with the mother. She was of the view that negative things were not happening in the father’s household, based upon the presentation and reporting of [B] when he was seeing her, as she set out in her evidence.
- The mother submitted that in making this finding his Honour erred because the primary judge “dismissed” or “minimised” the violence.
- We do not agree that the primary judge did so. His Honour, as he was obliged to, carefully considered all of the relevant evidence, including that of the family consultant, to find that the yelling and swearing in the father’s household was “within the reasonable range of families in Australian society” (at ). His Honour was entitled to accept and rely on the evidence of the family consultant and did not err in doing so.
- The mother’s evidence was that B had a diary in which he wrote entries detailing his feelings. At times it was kept on a hall table in the mother’s house. The mother had access to it at any time she wished. Although she denied prompting B to write in it she said B was well aware that she read the diary and had, indeed, corrected his spelling. She said that she encouraged B to write positive things as well as negative ones.
- There is no doubt that B’s entries in the diary focus on his father, how he is treated poorly by him and his anger at having to spend time with him.
- The primary judge said of this:
- It is not in dispute, that as time has passed [B] has become strongly resistant to spending time with the father, that he has run away from school on a number of occasions when the father is meant to have been picking him up from school, and that he has refused to attend school on occasions when he expects that the father would be picking him up.
- I have reflected significantly upon the diary of the child and the mother’s concerns about the child’s voice not being heard and the desire for the child’s distress and worry about the father’s household to be taken into account and acted upon. It simply cannot sit side by side with the evidence of the presentation of the child with [Ms T] and the family consultant. Both cannot be a reasonably accurate representation either of the factual circumstances, or of [B’s] underlying genuine beliefs in the matter. Indeed, similarly, his behaviour with his own mother before the family consultant interviews compound with it during those interviews and his lack of fear or difficulty with the father when the father attended at the interviews.
- It seems to me, that on the evidence, the behaviours of [B] must be seen as reactive to the circumstances in which he finds himself, whether the mother’s household or the father’s household or neutral environments. Clearly, he is recounting terrible experiences at his father’s when in his mother’s environment. He appears to fit in normally as a child would in the father’s household and when he sees the family consultant or [Ms T] is somewhat coy, but certainly not suggesting anything to indicate that he’s in fear of his father or at risk.
- I have already given reasons with respect to the “chop the fingers off” comment. It has been raised by the child with [Ms T] but it was not raised by the child with the family consultant. The threat, if it were perceived to be real, is incongruent with his presentation and if it were perceived to be a real one would have expected it to be articulated quite clearly, even by a nine year old.
- The variety of allegations that are made with respect to the other children that are, from time to time, in the father’s household largely seem to me to reflect the rough and tumble, particularly of boys of this age group, playing. I accept that [B] is a more sensitive child than perhaps the average child and it may well be that the other boys are more rough and tumble than the average boy of that age. However, none of this seems to me to explain [B’s] presentation and abhorrence when talking to his mother and writing in his diary with respect to his father’s household.
- Thus the primary judge was well aware of the contents of this diary. He was also concerned about aspects of the mother’s evidence on this issue saying:
- Parts of the mother’s evidence were particularly troubling. For example, it seemed clear that she could not even conceive of the possibility that the version she was receiving from [B] about the father may not be correct or could possibly not be correct, particularly in light of the evidence that had been given by [Ms Y] and [Ms T] and [Ms D].
- Whilst I understand that her primary case is that [B’s] versions to her and in his diary should be accepted as being absolutely correct, it seems to me that on any rational review of the evidence it must result in one having to at least consider the possibility of those things not being correct given the evidence of the professionals that had interviewed [B].
- Ultimately, after considering all of the evidence in the case, his Honour concluded:
- The question of whether or not the mother is consciously rewarding the child for the behaviours that have been seen was raised during the course of the trial. It does not seem to me that the mother is setting out to consciously reward the child in any simplistic fashion, such as buying gifts or toys or creating activities. It seems to me that, if anything, the child is reacting to the mother’s high level of distress and has identified that the mother’s distress is certainly eased or it gives him a role to play with the mother if he makes the statements that he does.
- It is, of course, concerning that even at a time when the child is so distressed, the mother is continuing to read the child’s diary that the child’s own counsellor is having him write in. It certainly seems to me to be clear that the child was likely to know that his mother was reading the diary and that, in that respect, it is difficult to place weight upon it as being something other than what the child would believe the mother is likely to see in the household. That is, her conduct converted the diary from a reflection process for the child to a document prepared for the mother to read.
- In coming to these findings the primary judge relied upon the evidence of Ms Y, Ms T and the family consultant.
- That evidence included the following:
- Ms Y at :
… I’m very concerned that the mother presents to me as highly anxious, highly agitated. She seems to exaggerate her concerns about the father. Many of her concerns that she raised to me are very driven by past examples, and very past examples. It’s interesting that [B] himself can often focus on a very, very past example that doesn’t seem to validate his rejection of the father. And what I mean by that is, especially when we went through a process of reintroducing contact and reintroducing it in a way that was initially supervised by my office, so we provided a level of support and supervision to those meetings, and we observed him to be relaxed. He would initiate conversations. He would initiate affection. The father was highly responsive … then he went on to start time with the father in the father’s household, and we provided another level of support around his reporting. He could report back to myself or [Ms T] how that time went and, again, he talked quite a lot about a time the father took him to – it looked like a carnival or some sort of play activity. He got a new bike, I think, for Christmas and he spoke to me about that, and to [Ms T]. And so there’s lots of really current examples. So when you see that deteriorate and they rely on the past examples for rejecting a parent, we become very concerned about how he’s exposed to a narrative that doesn’t really allow him to see meaning in a relationship with the father. My concern also is – my question to the mother interviews was, “Is there any value for a relationship with their father?” and she’s very clear there is not. So my concern really is about how [B] can present with heightened levels of fear and anxiety that really seems to be more a transference from his mother rather than any reality of any experience with the father, and that – I’m concerned that he feels burdened to be loyal to his mother, even at the cost of a perfectly good relationship with his father. Those things are concerning in terms of how this child then feels it’s his duty and role to support his mother, rather than having the expectation to have his needs met by his parents.
… [B] certainly, I think, has developed some heightened levels of anxiety and fear, but the point of that is not to say that he doesn’t have it. I think that he certainly does. That was the purpose of the referral to [Ms T]. I think the point – the question is, you know, where has that been established from? The mother would say that has been established because of his time with the father. I guess it’s my view that that has been something that has developed because of his relationship with the mother.
- Ms T at :
So in your opinion, can you be sure that [B’s] level goes down quickly while in the care of his father, or could it continue to go up and down throughout the weekend period causing further stress to him? Look, in the – in the past when he’s articulated – you know, we do use a – a feeling scale, but he – and he is nervous when he first goes to his – you know, dad’s for visits, but he’s able to, through strategies and through just being there and being safe, he – he de-stresses. And, you know, I – as I said to you on 24 June, I believe a lot of [B’s] fears are the fears that you have about dad. And – and it’s coming from – from your view.
- The family consultant at :
Overall at interview [Ms Ralton] claimed that the current situation is not the result of her behaviour or intentions, but due to her attempts to respond to [B’s] needs and in particular to his accounts of experiencing family violence from [Mr Ralton]. At the time of the interviews [Ms Ralton] had received advice from a number of sources that concerns were held that she may somehow, possibly inadvertently, be transmitting her fears about [Mr Ralton] to the children, and that this may have resulted in harm to the children’s relationships with him. She has been provided with information that limiting the children’s ability to have meaningful relationships with both parents poses a risk of harm to children. Her accounts at interview indicated that her clear response to this advice is to deny that this influence has occurred and to continue to seek reductions in the time the children spend with their father. In the event that it is found that there is no basis to [Ms Ralton’s] concerns that [Mr Ralton] is being physically abusive towards [B], it is this consistent denial that potentially moves [Ms Ralton] from the ‘unconscious’ or unintentional category of alienating behaviour to the ‘conscious’ or intentional category.
- This evidence comfortably supports the primary judge’s findings that B’s entries in the diary, and indeed his expressed fear of his father, were influenced by the conduct of the mother. His Honour’s findings were thus open on the evidence.
- These findings, of course, significantly affected and reduced the weight that was to be given to B’s views and his expressed fear of the father, as had earlier been recognised by the primary judge. It was therefore open to his Honour then to place limited weight on these considerations rather than the very significant weight proposed by the mother.
- As we have explained, his Honour accepted that B expressed fear of his father but considered that the basis of that fear arose from much more complex causes than those asserted by the mother.
That the mother provided good care to the children, and the father’s parenting
- The mother submitted that the fact that she had been the primary carer for the children for all of their lives, that they were strongly attached to her and that she provided good care for them (none of which was in dispute) should have precluded the orders being made for the children to live with the father.
- His Honour said of the mother:
- I accept that the mother is a loving mother of the children and that she meets their day-to-day needs in terms of ensuring that they are properly cared for and attend school and the like. I have real reservations about her capacity to separate out her own needs from the children and her capacity to maintain perspective and objectivity when dealing with issues that cause the children concern or disquiet, which is a significant parenting skill when brining [sic] up children.
- The mother has been the primary carer of the children to date and, certainly, on the more mundane aspects of parenting such as schooling, feeding the children, clothing them, ensuring their day-to-day needs are met, there does not seem to me to be any real question that she is very capable at those parts of parenting.
- I have regard to the nature of the relationship of the children to each parent. They clearly have a mother-child relationship with the mother that, in many respects, is positive. I have indicated above my concerns about the nature of the mother’s relationship with them with respect to their attitudes to their father, and that it seems to me to be likely that their attitudes to their father is reflective of what they see as their mother’s attitude and what they see as being the appropriate attitude to have to the father in light of their mother’s presentation.
- The primary judge was also aware of the father’s limitations, saying:
- The father has not been the primary carer. There has been considerable difficulty with contact. There is, therefore, the likelihood that he does not have a particularly strong relationship with them or a particularly deep relationship, not through fault of his own but through the way in which time has unfolded and the lack of significant time between the children with him. If the children are placed with him, there will be considerable difficulties that he will need to confront and considerable behaviours by the children that will be most frustrating and difficult to manage, both for him and his spouse. I accept that, intellectually, he understands this. Whether he emotionally understands the full depths that this might sink to before things were to improve if the children were with him, I am not absolutely certain.
- At present, they have a very limited relationship with the father. I would not categorise it as necessarily poor but, rather limited from the perspective that the information they have given to the family consultant. Their interactions with the father when it has been facilitated by professionals show signs of an underlying relationship that can well be developed. That certainly would not continue if they remain with their mother. The risk of fracturing the relationship with the mother, as the Associate Professor indicated, is a real risk, and that needs to be borne in mind, but it also seems to me that the relationship with the mother would ultimately be fostered in the father’s household.
- Thus the primary judge was completely seized of the matters raised by the mother and their importance. Those matters must be seen in the light of his Honour’s finding at  that living with the mother was
a very unhealthy environment for children to be developing in, where the mother has an intransigent and insightless view of an aspect of their lives so significant as the relationship with their other parent. There is the real likelihood that these behaviours would also occur with respect to other events in the children’s lives. I am persuaded on the evidence that if they stay with the mother, they will not have any real relationship with the father.
- His Honour also said:
- If I make no order to change the care arrangements, it would do nothing to relieve their immediate distress about contact. To do that, I would have to effectively remove the father from their lives until they were far older. This is likely to have a significant damaging impact upon them in the long term.
- I also consider the need to protect the children from physical and psychological harm. I do not find that the children are at risk of physical or psychological harm in the father’s household. It seems to me that the children are at risk of longer-term psychological harm in the mother’s household, given the attitudes that they are displaying …
- The mother challenged these findings, asserting that they were based upon incorrect and impermissible findings of anxiety disorder, enmeshment and parental alienation. Her submissions included the following:
- That the primary judge “unfairly determined myself as an abuser, using assumptions to cause me psychological harm, because he labelled me with a mental health illness that was not actually assessed by any competent authority in mental health” (Appeal Transcript 24 February 2017, 52); and
- That the primary judge based his decision on parental alienation and enmeshment when no assessments of the mother were undertaken to establish such a finding and where the concepts of parental alienation and enmeshment are “fictitious, dangerous and unproven non-scientific theory” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(v)).
- We do not accept the premise of those submissions. The primary judge did not make these findings as asserted by the mother.
- The primary judge said that the mother was “quite anxious about the running of the trial” (at ). As his Honour pointed out, this was not surprising as the mother was acting for herself in a case that raised very serious issues. However, being anxious is entirely different from suffering from an anxiety disorder. The primary judge did not proceed on the basis that the mother suffered from such a disorder.
- The primary judge was at pains to avoid the use of labels such as “parental alienation” or “enmeshment”. Speaking of the Associate Professor’s evidence, which included a discussion of these concepts, his Honour said:
- The issues that he raises with respect to the concept of alienation as a syndrome are well set out in the literature. However, to become focused upon the academic discussion of alienation and whether or not it is a syndrome – and it seems clear that it is not – becomes more of a distraction than anything in this individual case. What is necessary in this case is a careful analysis of the evidence of the parties, the circumstances confronting these two children in each of the households and the behaviours exhibited in order to ascertain what is going to be in their best interests.
- The words “alienation” and “enmeshment” were, however, used in the family consultant’s report in a passage quoted by his Honour. In order to explain why there was not such a finding, however, it is necessary to set out the entire lengthy quotation. His Honour said:
- The pattern of the mother’s behaviours are set out in paragraph  of the report as follows:
- <li “=””> The family report assessment found there were numerous indications that [Ms Ralton] has behaved in a manner that is recorded in the professional literature as associated with parental alienation. These indications include:
- The pattern of the mother’s behaviours are set out in paragraph  of the report as follows:
a. That the children express strong feelings of fear and unwillingness to spend time with [Mr Ralton] that is incommensurate with the explanations they provide for their feelings of fear,
b. That there is a consistent pattern of [Ms Ralton] seeking to limit the time and telephone contact the children have with [Mr Ralton], or the information [Mr Ralton] has about the children’s medical needs or extracurricular activities, and that [Ms Ralton] has sought other legal measures such as obtaining intervention orders, or seeking letters from her general medical professional, to support her decisions to limit the time the children spend with their father
c. That the children’s rejection of [Mr Ralton] extends to other members of the paternal family, such as their half-brother [K] and their step-brother [O],
d. That [Ms Ralton] has demonstrated a pattern of arranging activities for the children to attend during the time they spend with [Mr Ralton], and then proposing that the children should ‘choose’ whether they spend time with their father. This option of choice has been largely demonstrated through the repeated presentation of [B’s] school work or pages from his diary where he reports not wanting to spend time with his father
e. That [Ms Ralton] demonstrates patterns of ‘service shopping’ where professional advice is only accepted when it is in line with her views such as the advice of her local medical practitioner or the counsellors at [the Community Health Service] while other professional advice is rejected such as the advice of [Ms Y] or [Ms T],
f. That there are indications of tacit rewards for the children’s rejecting behaviour towards [Mr Ralton], for example permissive parenting practices regarding food, co-sleeping arrangements, and possibly attendance at extracurricular activities,
g. That there has been a pattern of increasing rejection of [Mr Ralton],
h. That [Ms Ralton] describes her behaviour in terms of following the children’s wishes or being protective of the children
In addition, the professional literature proposes;
i. That children who are most vulnerable to alienation practices are generally between the ages of 8 and 15 years,
j. Developmental disorders or emotional difficulties increase a child’s vulnerability, as these children lack the resilience to withstand the pressures associated with high post-separation conflict between parents,
k. The personality features of ‘favoured’ parents include a tendency to be rigidly defended and moralistic, they perceive themselves to be flawless and virtuous and often externalise responsibility onto others, and they often have limited insight into themselves and their effect on others.
l. Favoured parents often have an enmeshed relationship with the aligned child
m. Aligned children are angrier than non-aligned children, and alienated children are more likely to demonstrate defiant or rigid behaviour, often refuse to attend school and are more likely to develop eating disorders
n. Favoured parents often falsely or without reasonable basis make allegations of abuse against the other parent, which feature delusional statements or gross distortions of events.
- That quotation was immediately followed by his Honour saying:
- Even if some of those were not fully available on the evidence, it nonetheless paints a significant picture on the evidence in this case. [Ms D] was cross-examined at great length, confirming her evidence and, during her cross-examination, she spent considerable time taking care to try and explain her answers carefully to the mother, who is representing herself.
- The combination of the opening words of that paragraph,  of the reasons and the lack of any reference or reliance upon the concepts of parental alienation or enmeshment indicate that the primary judge did not make the finding about which the mother complains. Rather, his Honour had regard to, and made findings in accordance with, the behaviour described in the quoted paragraph (a) to (h) of the family consultant’s report.
- Each of these paragraphs identifies particular conduct of the mother and none attempts to provide a psychological label for it. The primary judge had clearly indicated at  that he would consider “the circumstances confronting these two children in each of the households and the behaviours exhibited” rather than engage in a discussion of psychological concepts.
- This his Honour did. There is therefore no need for us to consider whether or not the evidence justified a finding of parental alienation or enmeshment or whether or not they are valid concepts.
- Finally, we do not consider that there is any substance in the mother’s submissions that the primary judge had no regard to the scientific papers to which he was referred by the mother. First, for the reasons we have already given, there was no need for him to do so. Secondly, in the absence of expert evidence on the issue, having regard to academic literature can be a dangerous course: see, for example, Barclay & Orton  FamCAFC 159 at ; SCVG & KLD  FamCAFC 100 at  – ; Oaks & Udall  FamCAFC 211; McGregor & McGregor  FamCAFC 69; (2012) FLC 93-507.
- Thus we conclude that the findings of the primary judge were open to him and that no error has been demonstrated.
- Finally, we turn to the issue of the mother’s allegations of family violence during the relationship.
- The primary judge said:
- The mother made allegations about domestic violence of the father in the past. It was many years ago, aside from the videoing. The mother certainly feels subjectively threatened by the father. I am not persuaded that this is necessarily borne out by his conduct. He is certainly not easily persuaded to do things he does not wish to, and no doubt firmly stands his ground on his opinion. This, though, is not domestic violence, even if one wants somebody to accept a different point of view.
- It appears that the incidents raised by the mother were situational arguments, not unusual for couples that are separating. Even if I was to accept the mother’s evidence at its highest, with respect to these incidents, they show considerable anger and difficulty between the parties about separating and about children’s arrangements, but they seem to have ceased relatively soon after separation.
- These findings were made after a consideration of all of the evidence and were findings that were open to his Honour. The mother did not point to other relevant evidence which was not referred to by the primary judge.
- During the hearing of this appeal the mother submitted that:
I will move to the jurisdictional error of findings of fact on family violence. I believe that he was – he – he failed to be guided by the family violence best practice principles. A reasonable person reading the material would not have accepted the father’s untruthful statements, and would ask how many perpetrators actually admit to domestic violence. On a balance of probabilities, the father’s testimony should not be relied upon, nor can a declaration be made, as a reasonable person knows that family violence happens behind closed doors. And a child is not always going to disclose exactly what happened when he knows the parent is in the other room.
(Appeal Transcript 24 February 2017, 72)
- It is clearly true that much family violence occurs behind closed doors and that perpetrators will often, of course, deny the allegations. That, however, does not relieve a trial judge of the obligation to assess all of the evidence in order to make findings. This is what occurred here.
- The primary judge’s finding is not contrary to incontrovertible evidence or compelling inferences, or otherwise unavailable (Fox v Percy  HCA 22; (2003) 214 CLR 118 at 128). No error has been established.
- The mother also submitted:
And I believe that he failed to apply the family violence rules of the child was, in fact, actually fear – fearful of the father during that time. He was hiding in the – and it was during that time of that – the child running away, he actually made it quite clear to the police that he did not want to go with his father, and the police did not pursue it, and the child actually came home with myself. I believe that the judge has dismissed and failed to give proper weight to – I’ve said that – to the school and police.
(Appeal Transcript 24 February 2017, 75)
- Again, these were matters expressly taken into account by the primary judge.
Did the expert witnesses have the requisite expertise? Should their opinions have been accepted?
- As has been seen the primary judge accepted and relied upon the evidence of Ms Y, Ms T and the family consultant.
- The mother submitted:
- That “the witnesses, [Ms Y] and [Ms T] and [Ms D], did not show specialised knowledge on their training study and experience of parent alienation, enmeshment, or that the mother was a psychological risk. There was no training undertaken – was provided to the court regarding alienation, enmeshment, or if the mother was a psychological risk, as neither were a clinical psychologist” (Appeal Transcript 24 February 2017, 53);
- The “[e]ngagement of court experts was eleven months prior” to the hearing (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(ff)).
- The experts “had preconceived views adverse to the case, personal opinions, failed to be objective, unbiased, independent and impartial” (Mother’s Amended Summary of Argument, filed 13 February 2017, para 1(ff)).
- We have indicated that the primary judge did not make findings of parental alienation or enmeshment so we do not need to deal further with that aspect of the submissions.
- Further, whilst it is clear that the primary judge found at  that the children were “at risk of longer-term psychological harm in the mother’s household”, this was a finding of his Honour’s based on the whole of the evidence and was not the simple adoption of an opinion of a particular witness. It is clear from the foregoing, however, that each of the three expert witnesses had concerns for the mother’s ability to care for the children (and, at least, Ms Y expressly said so).
- It cannot be said that the evidence did not support the primary judge’s findings. The three witnesses gave extensive evidence as to the matters they had observed, their interactions between the parties and the children and the effect of the parents’ behaviour.
- The mother challenged the expertise of the three witnesses in the course of cross-examination. Each accepted that they were not a clinical psychologist. Ms Y was a social worker with post-graduate qualifications. She described herself as an advanced social worker in family studies and working in various fields in the area including as a family consultant. Ms T was a psychologist with both a bachelor’s and master’s degree in psychology, together with a graduate diploma in applied psychology. The family consultant described herself as a “counselling psychologist”.
- We consider that the primary judge’s acceptance of them as expert witnesses was an entirely proper finding on the evidence that was before him.
- We have already dealt with this issue of bias.
- The mother complained that the report of the Associate Professor was given insufficient weight. It should be observed that the mother made this complaint notwithstanding that the Associate Professor accepted parental alienation and enmeshment were valid concepts but were ones that did not apply in the present case, somewhat contrary to the mother’s position on appeal.
- The primary judge found it difficult to accept the Associate Professor as a “contemporary expert with respect to the practical application of family counselling and family law issues” (at ) and gave a number of reasons why he considered this to be so. His Honour then raised some concerns about the Associate Professor’s lack of knowledge of particular issues and facts of the matter and that he had not met the mother or the children. The primary judge considered that the opinion of the Associate Professor, which was to the effect that more intensive therapy should be given to the family in preference to having the children live with the father, “appeared to overlook the fact that attempts were made to do that, with [Ms Y] and [Ms T]” (at ). The Associate Professor did not refer to the evidence of [Ms Y] that the mother was not prepared to engage with anyone who did not align themselves with her views.
- Whilst it was true that Ms Y and Ms T had not seen the children or the parties for some months, their evidence was still relevant. It was consistent with that of the family consultant whose report was prepared shortly before the hearing.
- Ultimately, it was a matter for the primary judge to weigh the evidence of the Associate Professor against the evidence of Ms Y, Ms T and the family consultant. For the reasons given, his Honour preferred to give less weight to the opinions of the Associate Professor. That was a course entirely open to him and, we consider, supported by cogent reasons.
- Accordingly we see no error in the approach of the primary judge to the expert evidence in the proceedings.
- It follows that no error has been established and the appeal will be dismissed.
APPLICATIONS IN AN APPEAL
Application to adduce further evidence
- By an Application in an Appeal filed on 13 February 2017 the mother sought to adduce further evidence in the appeal.
- The court may, in the exercise of its discretion, receive further evidence in an appeal (s 93A(2)). Evidence may be admitted to show error on the part of a trial judge or to bolster his or her findings. However, caution is to be exercised in parenting cases where there has been an order for a change of residence and the further evidence points to changes in circumstances, outlook or apparent welfare (CDJ, per McHugh, Gummow and Callinan JJ at  and ).
- The proposed evidence falls into three categories.
- The first category is evidence of events that have occurred since the orders were made, which the mother asserts indicate that the orders are not working in the best interests of the children. The proposed evidence includes evidence by the mother to the effect that she had not seen the children since the orders were made, had filed a contravention application against the father and that the ICL had filed an Application in a Case seeking to prevent the mother and her family from contacting the children. She also sought to tender transcript of the proceedings after judgment was delivered, a video recording of events on the same day, a recovery order made that day, transcript and voice recordings of supervised visits on five occasions between 25 September 2016 and 14 January 2017, transcript and voice recording of four hours on Christmas Day, photographs of the children and an email from the primary judge’s associate.
- It is clear enough that, at the least, some of this evidence is controversial. It also invites us, in effect, simply to reconsider the parenting orders in the light of events that have taken place subsequent to the orders. This evidence will not be received.
- The second category is evidence that was available to the mother at the hearing. This included letters that B wrote to the primary judge which were tendered by the mother and not received into evidence. There is no appeal against that ruling. Other proposed documents consisted of the “anxiety scale” prepared by Ms T that has been referred to earlier in the reasons (which apparently was emailed to the primary judge at some stage but not tendered in court), a transcript and voice recording of B and the ICL on 29 September 2015, emails to and from the primary judge’s associate, earlier court orders, brochures and papers from several organisations and transcript and recording of the mother’s session with Ms Y and Ms T in June 2015.
- Two of these items — the recordings of the ICL meeting with B and B’s session with Ms Y and Ms T — raise particular concern. Rule 1.19 of the Rules provides:
(1) A person must not photograph or record by electronic or mechanical means:
(a) a hearing or part of a hearing:
(b) a trial or part of a trial;
(c) a conference under the Act, these Rules or an order of a court;
(d) an attendance with a family consultant;
(e) an attendance with a single expert under these Rules;
(f) a conference of experts ordered by a court; or
(g) a person who is in court premises.
Note: Section 121 of the Act restricts publication of information relating to cases.
(2) Subrule (1) does not apply to a photograph or recording made at the request of:
(a) a court;
(b) in relation to an attendance with a family consultant—the family consultant;
(c) in relation to an attendance with an expert witness—the expert; or
(d) in relation to a conference of experts—the experts.
- The tender of these two documents also raises the consideration of s 138 of the Evidence Act 1995 (Cth), as it is likely that the recordings were improperly made (see Helbig & Rowe  FamCAFC 117 at  – ).
- The mother did not explain why she did not seek to tender any of the evidence on which she now seeks to rely on to the primary judge. There was no crossexamination of any of the witnesses as to the accuracy of their records of the interviews.
- A deliberate failure to adduce the evidence will weigh heavily against the exercise of the discretion to receive it on appeal (CDJ at ).
- These reasons are sufficient to refuse the application to receive these documents. Further, we are not satisfied that these documents identify error on the part of the primary judge.
- Finally, the mother sought to rely upon letters from a community legal centre, Victorian Legal Aid, and a brochure from Z Group (a victims support group), all of which were obtained after the hearing. They are not of assistance in that they do not establish error on the part of the primary judge.
- The mother also sought to tender the transcript of proceedings of 8 April 2016. That is not further evidence but a document that ought to have been in the appeal books and we received a copy of it.
- The Application in an Appeal will, however, be dismissed.
Application to issue a subpoena
- By an Application in an Appeal filed on 16 December 2016 the mother sought leave to issue a subpoena to the father for the production of the “Application and Summons for an Intervention Order” between the father and his former partner.
- It was the mother’s case that the previous relationship was also marked with family violence, to the extent that after separation the father’s former partner sought an intervention order. She gave evidence and, when cross-examined by the mother, said that, in fact, the father was the applicant for the order and not her. The father could not remember who the applicant was. The mother was sceptical of this evidence, which led to the application seeking that a subpoena issue. The mother said that the production of the Application and Summons for Intervention Order would establish that the father was the respondent and demonstrate a pattern of behaviour in regards to family violence and false statements on his part.
- Subpoenas are a means of obtaining documents with a view to obtaining documents that are, or may be, relevant to the running of a trial. It is not a procedure that is apt for an appeal.
- Nevertheless, the father attended court with a copy of the document and was prepared to make it available. We received it as an exhibit in the appeal. It shows that the applicant for the intervention order was, in fact, the father and not his former partner. The mother accepted that the document did not support her contentions.
- There is now no point to this application and it will be dismissed.
APPEAL NO. SOA 59 OF 2016
- On 24 June 2016 Judge Riley, in the absence of the primary judge, heard and dismissed an application by the mother to stay the primary judge’s orders. Her Honour then made the following orders against which the mother appeals:
- The applicant pay the costs of the stay application filed on 17 June 2016 of the independent children’s lawyer and the respondent fixed in the sum of $3,242 each.
- The costs order be stayed for a period of 90 days.
- It is necessary to record that on that day both the ICL and the father were legally represented.
- Her Honour’s reasons closely followed s 117 of the Family Law Act. Significant weight was placed on the following matters:
- the mother was renting accommodation, was unemployed and not a person of wealth;
- the father has spent “tens of thousands of dollars” on the proceedings;
- the father is employed but has no “particular wealth”; and
- the stay application was wholly unsuccessful.
- The parties raised the following matters which her Honour did not consider to be of significance:
- this was the second application for a stay as an oral application for a stay had been made the day that the orders were pronounced;
- the father and the ICL were not promptly served with the application and affidavit;
- the mother amended the application on 24 June 2016;
- the father did not seek costs in the substantive proceedings; and
- a costs order would act as a deterrent to the mother from bringing other applications.
- In her Amended Notice of Appeal filed on 16 December 2016 the mother relied on the following grounds of appeal:
- These grounds of appeal do not readily disclose what the mother asserts to be errors on the part of the primary judge. In Bahonko v Sterjov  FCAFC 30; (2008) 166 FCR 415 at , the Full Court of the Federal Court of Australia said:
Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvas every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
- The mother’s Amended Summary of Argument ranges widely and focusses mainly on the deficiencies she perceives in the approach to the substantive hearing by and the reasons of Judge Riethmuller. They are not relevant to this appeal.
- The mother asserts that Judge Riley made a factual error when she said that “[i]t seems that she did have legal representation up until February this year which was funded by her parents” (at ). The mother’s submissions assert that her legal representation ceased on 17 December 2015, a few months earlier. Accepting that to be so, an error of that small magnitude is not materially significant.
- The mother submitted that “[a]warding costs for a stay application when an appeal with merit is pending is not fair or just”. We do not accept that proposition but observe that the substantive appeal will be dismissed.
- As to the balance of the mother’s submissions, it is sufficient to say that the decision of Judge Riley was open to her on the evidence and well within the exercise of discretion.
- No error has been identified and the appeal will be dismissed.
- The father sought a costs order in the event that the appeals were unsuccessful. Whilst he appeared for himself, he said that he had incurred some legal expenses in seeking advice on the appeal and the preparation of material.
- The mother opposed the order on the basis that she was on Austudy and could not afford a costs order.
- We accept that the mother is in a weak financial position. However, impecuniosity is, of itself, not a bar to a costs order.
- Appeal No. SOA 46 of 2016 has been wholly unsuccessful. We take into account that the mother has also been unsuccessful in Appeal No. SOA 59 of 2016. As a result she remains liable to pay the ICL and the father the costs of her unsuccessful stay application which was dismissed on 24 June 2016.
- Taking these matters into consideration we consider that the appropriate order is that the mother pay the father’s costs of the appeal.
- The ICL did not seek an order for costs.
I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland & Aldridge JJ) delivered on 7 September 2017.
Date: 7 September 2017
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties. Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.
A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.