GRANDHOUSE & GRANDHOUSE

[2012] FamCAFC 13

FAMILY COURT OF AUSTRALIA

GRANDHOUSE & GRANDHOUSE [2012] FamCAFC 13

FAMILY LAW – APPEAL – Appeal from a decision of a Family Court judge allowing the mother only limited supervised time with her young child – In circumstances where the appeal was conducted in an entirely unsatisfactory manner – Whether the trial Judge erred in admitting inadmissible evidence that was said to be prejudicial to the mother’s case – The trial Judge correctly relied on evidence in circumstances where the mother herself adopted the truth of that evidence – Whether the trial Judge erred by wrongly excluding evidence from the mother – His Honour correctly dealt with evidence presented by the mother and her counsel – Whether the trial Judge erred in his findings concerning family violence – The trial Judge carefully considered the allegations of family violence and made appropriate findings – Whether the trial Judge failed to provide the mother procedural fairness and an impartial hearing – There was no denial of procedural fairness and the mother received an impartial hearing – No merit found in any of the grounds of the appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the mother was wholly unsuccessful – Mother to pay costs of both the father and the Independent Children’s Lawyer, including costs reserved.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT: Ms Grandhouse

RESPONDENT: Mr Grandhouse

INDEPENDENT CHILDREN’S LAWYER: Ms Adams

FILE NUMBER: NCC 1096 of 2007

APPEAL NUMBER: EA 139 of 2010

DATE DELIVERED: 3 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Finn, Thackray and Ainslie-Wallace JJ

HEARING DATE: 27 June 2011 & written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 16 September 2010

LOWER COURT MNC: [2010] FamCA 921

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Pender

SOLICITOR FOR THE APPELLANT: Self represented

COUNSEL FOR THE RESPONDENT: Mr Kenny

SOLICITOR FOR THE RESPONDENT: Thomas Mitchell Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams & Associates

Orders

1. The appeal be dismissed.

2. The mother pay the father’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal, including costs reserved, as agreed or, in default of agreement, as assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 139 of 2010
File Number: NCC 1096 of 2007

Ms Grandhouse

Appellant

And

Mr Grandhouse

Respondent

And

Ms Adams 

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is the mother’s appeal against orders made by Le Poer Trench J on 16 September 2010, which allowed the mother only limited, supervised time with her young son. 

2. The orders provided for the child to live with the father, and for the father to have sole parental responsibility.   

3. The appeal is opposed by the father and the Independent Children’s Lawyer.

Background

1. The mother was 40 years of age, and the father was 38, at the time of judgment.  The father works for the travel industry and the mother works for the travel industry, although the mother was not working by the time the trial finally concluded.

2. The mother and father commenced living together in 2003 and were married in February 2004. 

3. There is one child of the relationship, J, who was born in November 2005.

4. The mother returned to work when the child was three months old.  Thereafter, he was looked after by one or both of the parents, depending on their rosters.  When neither was available, the child was looked after by a nanny.  There were weeks at a time when the boy did not see either parent. 

5. The mother and father separated in September 2006.

Brief history of the proceedings

1. The father commenced proceedings in the Federal Magistrates Court in December 2006. The matter was later transferred to the Family Court of Australia, and dealt with under the “less adversarial” procedures provided for in Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”).

2. On 23 February 2007, orders were made in the Federal Magistrates Court for the child, then aged just 15 months, to live with both parents on a four day rotation.

3. On 7 September 2007, orders were made in the Family Court for the child to live with the father when he was not working, and with the mother when the father was working.

4. The trial before Le Poer Trench J commenced in December 2008.  It proceeded over four days, with both parties represented by counsel.   At the conclusion of this part of the trial, counsel for the Independent Children’s Lawyer proposed an adjournment for at least 12 months.  The adjournment was granted over the father’s objection.  Orders were made for the appointment of a Single Expert, who provided a report during the period of the adjournment. 

5. The trial resumed for two days in December 2009, at which time both parties were again represented by counsel.  The parties were cross-examined again, having both filed further affidavits during the period of the adjournment.      

6. At the conclusion of the evidence, counsel for the Independent Children’s Lawyer made oral submissions.  Directions were made for the parents to file written submissions by 1 February 2010. 

7. The mother’s submissions were not provided until 3 May 2010. In the meantime, in March 2010, the father obtained leave to reopen the proceedings. 

8. On 1 April 2010, the trial Judge made interim orders suspending the arrangements relating to the child’s time with the mother.  He put in place a new regime for the mother to spend time with the child only when she was closely supervised.  Presumably this order was made on the basis of the matters that were the subject of the father’s application to reopen.

9. The matter then proceeded to another three days of hearing in early May 2010, at which time the mother appeared without counsel.  This third stage of the trial was taken up almost entirely by cross-examination of the mother.  The matter was still not completed at the end of these further three days.  The trial resumed on 1 June 2010, at which time further evidence was given, and the mother was again cross-examined about recent events. 

10. Oral closing submissions were made on behalf of the Independent Children’s Lawyer and the father on 1 June 2010.  The mother made her closing submissions two days later.  Judgment was reserved. 

11. The judgment delivered on 16 September 2010, and as it appears in the Appeal Book, had errors in the paragraph numbering.  We will therefore refer to the corrected paragraph numbers as they appear in the version of the judgment published on the website.

The reasons for decision

1. The reasons for decision were very lengthy, extending over 195 pages.  We will set out sufficient of the reasons to provide context for our discussion.

2. The trial Judge recorded many “Background Facts”, which he noted as being “not controversial”.  One of these concerned what was described as “an altercation between the mother and father at [Sydney station]”, in which “the mother alleged she had been assaulted by the father…”.  The Sydney station incident occurred in October 2005, and led to the father being convicted, two years later, of assault.  The appeal against the conviction was dismissed.

3. Having identified factual issues he considered required determination, the trial Judge then set out the orders sought.  The proposal of the Independent Children’s Lawyer, which the father supported, was that the child live with the father, and that the father have sole parental responsibility.  The proposal involved the mother having only short periods of supervised time with the child. 

4. The Minute of Order provided by the Independent Children’s Lawyer carried this notation:

   That should the mother wish to provide psychiatric evidence following not less than 12 months of regular psychiatric or psychological Counselling and therapy, of her resiling from her belief in her allegations of physical and sexual abuse of the child by the father, it is the intention of the Independent Children’s Lawyer at this time to support the child having more extensive time with his mother.

5. The mother proposed that the child should live with her, and spend time with the father each alternate weekend and for half of the school holidays. The mother did not formally seek orders concerning parental responsibility, but his Honour recorded that he accepted the mother wanted equal shared parental responsibility.

6. The trial Judge then dealt with credit issues.  He made generally favourable findings concerning the father’s credibility, although noting there were aspects of his evidence which he did not accept.  His Honour then dealt at length with the mother’s credibility.  We will set out his main findings as they are of crucial importance to this appeal: 

   91.Throughout the evidence of the mother, as I have recited in these reasons, I have referred to the occasions upon which the mother spoke of her difficulty in remembering certain facts. The mother’s explanation was that, as a young person, she had undergone an operation on her brain to remove a benign tumour. The consequence of that operation, so far as her memory is concerned, is that she has what she has called “pocket memory”. That has been explained by the mother as areas of her recollection which are blank. A further aspect of this condition is that where she can not remember a part or parts of a continuum of events, she panics and will compose what she thinks may have occurred.

   92.There are parts of the mother’s evidence which are quite extraordinary, bordering on bizarre. Just because evidence may fit that description does not mean it is untrue. It has therefore been necessary to consider the mother’s evidence in significant detail and also in the broad in order to try and reach a conclusion as to whether it should be accepted.

7. The trial Judge next dealt with particular topics touching on the mother’s credit.  In doing so, he found she had fabricated or significantly exaggerated evidence, which led his Honour to express concern “about the lengths [the mother] is prepared to go to in relation to dishonesty with the balance of her evidence”.

8. At paragraphs 102 and 103, his Honour made findings about the evidence given by the mother during the third stage of the trial, in May 2010.  Counsel for the mother made particular complaint about these findings, claiming that the mother had “made some errors” only because she was “tired”.   

9. Given the attack on these findings, we will set them out in full:

   102.On 5 May 2010 the mother was cross-examined by Counsel for the father. She was questioned about the events of 27 October 2009. Her recollection of events was poor. When answering questions she contradicted evidence which she had given earlier that day or on the day before when she had answered questions from the Independent Children's Lawyer. In answer to one question about that day the mother said:

   I can recall incidents that have been closer up but the further I get back, the more difficult it is for me to recall exactly what happened in there. I don’t recall. I know [counsel for the Independent Children's Lawyer] has asked me. I don’t recall exactly, but she asked me a question and on the spot I gave her an answer but, yes, I don’t recall the exact information for that date.

   103.When questioned about that evidence the mother told me she did not have any reasonable recall of the events of 27 October 2009 other than the collection of the stool. She attributed those circumstances to her pocket memory problem.

10. Having noted other admissions made by the mother concerning her propensity to make up answers, his Honour continued:

    107.The abovementioned revelations from the mother about the nature of her memory must caste [sic] a large cloud over the veracity of her evidence not only in this case but also in relation to other significant events which impinge on this determination such as the father having been found to have assaulted the mother at [Sydney station]. That is not to say that such a finding may not have been made had the Judge hearing that case been informed about the nature of the mother’s memory. I refer to that matter particularly, because there was a very lengthy period between the date of the offence and the time the Police charged the father. There was further delay before the matter was heard in the Local Court and then in the District Court. The Police and the Courts must have relied upon the mother’s memory at the time the trials took place. Given what has been said by the mother in the trial before me it is hard to see how the mother’s memory could have been any different at that time to when she gave evidence before me.

11. The trial Judge then referred to further aspects of the evidence, including that given by the Family Consultant and the Single Expert, which cast doubt on the mother’s credibility and honesty.

12. His Honour then performed what can only be described as an exceedingly thorough examination of the evidence.  He commenced with a summary (extending over some 55 pages) of almost all the exhibits.  He paid particular attention to the reports of the Family Consultant and the Single Expert. 

13. The reports of both the Family Consultant and the Single Expert demonstrate they were well aware of the discrepancy in the parties’ evidence, especially in relation to issues of abuse and violence.  Both were therefore careful to frame their reports in a way that recognised it was the trial Judge, not them, who would ultimately determine the credibility issues, and that their assessment of the parties would change, depending on which party was believed.   

14. This approach can be illustrated by setting out his Honour’s reasons where he recited parts of the Family Consultant’s report.  It should be noted that the report was prepared in May 2008, when the child was living in shared care:

    155.The Report notes that the mother appeared to gain an element of satisfaction from recounting allegations that painted the father in a poor light, or which have caused the mother sadness. It was said that the mother appeared “…either unaware or unconcerned about the inappropriateness of some of her own behaviour” and also that the mother was dismissive of her criminal convictions for Driving Under the Influence and for malicious damage. The Family Consultant considered that the mother “…appeared to take no responsibility at all for these events and attempted to minimise the seriousness and provide mitigating excuses.” In addition, the Family Consultant considered it highly likely that the mother is prone to exaggeration or to analysing past events to fit a belief she already holds. It was said to be:

    …of further concern that the mother appears to have sought and obtained considerable attention for herself by advising multiple health professionals of behaviour the mother attributes to [the child]…On each occasion that [the child] was seen by a different health practitioner, the mother provided her detailed account of the father’s behaviour, which the mother appeared to believe was the sole reason for all of the difficulties experienced by the mother and [the child].

    156.The mother had made allegations that the father had been physically and emotionally abusive towards her

    …and that the abuse was extremely violent, systematic and long term. If the Court finds that the mother’s allegations are substantiated, this would indicate that the father has an extremely serious problem with violence and control and this would raise serious concerns for the safety and well being of the child if the child was to spend unrestricted time with the father. Similarly, there would be serious concerns about the appropriateness of the father having any responsibility for long term decision making for [the child].

    If the Court finds that the mother’s allegations are not substantiated this would raise serious concerns about the mother’s ability to place the needs of [the child] above her own needs and therefore would raise serious concerns about the mother’s ability to have any long term decision making ability for [the child] and also about the appropriateness of [the child] living predominantly with the mother as is her proposal. 

    157.It was said in the Report to be of extreme concern that the father has been convicted of assaulting the mother, and of further concern that this occurred when the mother was 38 weeks pregnant with [the child]. At the time of preparation of the Family Report the father was appealing that matter.

    158.The Family Report writer said that it appeared both parents have failed to adopt a child-focussed approach to their co-parenting and that the actions and attitudes of the parents strongly suggested that if [the child] was to predominantly live with either parent then that parent would not actively promote the child’s relationship with his other parent and their family. Consequently, the Family Consultant recommended that in considering with which parent [the child] would predominantly live that consideration be given to the likelihood that each parent will actively encourage and promote [the child’s] relationship with the other parent and their family.

    159.In particular, the Family Consultant in his evaluation, said that:

    …[t]he parents have continued their violent and abusive relationship and arrangements for [the child] have been dictated by the parents’ perceived needs and sense of entitlement rather than with any concerted effort to meet [the child] [sic] complex and changing developmental needs.

    160.The Report said that the attitude and behaviour of both parents would need to change before any shared decision making was appropriate.

    161.The Family Consultant recommended that [the child] live predominantly with one parent and spend significant and substantial time with the other parent. It was recommended that the cross-allegations of violence and control (and the future likelihood of that behaviour being engaged in) be considered in determining the parent with whom [the child] would primarily live. In view of the communication between the parents, which the Family Consultant described as “totally inadequate”, and the geographic distance between the parents, it was recommended that [the child] not spend equal time with each parent. The Family Consultant said “[i]t is highly likely that any attempt to continue the current shared care equal time arrangement would be extremely harmful for [the child].”

    162.The Family Consultant said it may not be possible for the parents to jointly make decisions about the child’s long term welfare. It [sic] making recommendations, the Family Consultant recommended that the Court seriously consider the appropriateness of the parents having shared parental responsibility for long term decisions regarding [the child]. If that long term decision making was the responsibility of one parent then it was recommended it should be with the parent with whom [the child] is predominantly living.

15. The trial Judge next considered the oral evidence of the experts.  His Honour prefaced that part of his discussion by noting the case presented at the final hearing was “a very different case to that which started in 2008”.   

16. Having dealt with the oral evidence of the experts, the trial Judge next outlined the affidavit evidence.  His Honour then turned his attention to the oral evidence given by the parties and witnesses in 2008, and the oral evidence (predominantly that of the mother) given in the 2009 and 2010 parts of the trial.

1. Having set the scene in the preceding 156 pages of his reasons, his Honour then began to make findings about each of the issues he had earlier identified as requiring determination.  We will set out below some of what we perceive to be the more important passages from this part of his Honour’s reasons.

2. In dealing with the respective advantages and disadvantages of the parties’ proposals, his Honour said:

   973.For my part the major disadvantage for [the child] in living with his mother is the mother’s conviction that [the child] has been physically and sexually abused by the father. Such conviction is so firmly held by the mother that, in my opinion, I consider it very likely the mother will be over vigilant in seeking out further evidence of the abuse in order to convince those who have not accepted her view. That would include child welfare workers (DOCS) and the Court.

   974.Another very significant disadvantage for [the child] in living with his mother would be the continued view of the father held by the mother. I consider it would not be possible for the mother to conduct herself in the presence of [the child] without making it clear to [the child] that she has no respect for the father and further that she believes he is a child abuser of the worst kind.     

   …

   975.I consider that there is a very real risk that [the child] would be estranged or alienated from his father by the mother if he was to live with her. The mother’s opinion of the father is so negative that I consider it would be very difficult for [the child] to continue to have a close relationship with his mother without adopting her view.

   976.If [the child] was to show any opposition to the mother about her view of the father then he may find some rejecting aspects of his mother’s care of him.

   977.In my view it is most unlikely that a mother could hold as strong a view of a father as the mother holds in this case and be seen by the child to be supporting a relationship between the child and the father.

   978.There is, I am satisfied, no unacceptable risk of harm to [the child] if he is to live with his father. My determination in this respect is set out later in these reasons.

3. After describing, in some detail, the evidence on which the mother based her allegations of sexual abuse, the trial Judge concluded that no case had been made out “to establish [the child] has been sexually assaulted at all let alone sexually assaulted by the father”.

4. His Honour also made findings in relation to the allegations of violence.  We will refer to these when we come to discuss the relevant ground of appeal. 

5. Before turning to discuss the matters in s 60CC(2) and (3) of the Act, the trial Judge set out briefly the relevant “legal principles”. There is no challenge to what his Honour recorded in that part of his reasons.

6. We do not propose to record all of the findings his Honour made when dealing with the s 60CC factors.  However, one part of this discussion is of particular importance to this appeal. 

7. In considering s 60CC(3)(f) (capacity to provide for the needs of the child), the trial Judge noted the alternative scenarios discussed by the Single Expert that were expressed to be dependent on credit findings.  His Honour then commented: 

   1051.As pointed out earlier in these reasons I have largely preferred and accepted the evidence of the father in preference to that of the mother which I find largely unreliable. The consequence is that I accept the evidence of Dr [RN] in relation to the mother based on an assumption that the Court accepts the father’s evidence. I have also accepted the evidence of Dr [RN] as to the impact upon a child of being raised by a parent with the type of personality traits identified in the mother by Dr [RN] should I prefer the evidence of the father.

   1052.I have grave concerns about the mother’s parenting capacity. I consider the mother to be unpredictable in her parenting and I have great concern as to her mental ability to assess risk for [the child] associated with her actions. I find that in some circumstances she would be unable to assess such risk. One such occasion would be if [the child] said anything which the mother could possibly interpret as a complaint by him of physical or sexual assault upon him by the father.

   1053.I am concerned the mother does not have the capacity to prioritise [the child’s] best interests in the most important of circumstances. Again I conclude she does not. One such important occasion occurred in October 2008 when the mother became convinced that [the child] had been punched and assaulted by the father to such an extent that he was physically marked and bruised.

   1054.I have great concerns as to the mother’s capacity to understand the impact on [the child] of some of the mother’s parenting and life choices. I find that in some circumstances she does not. She chose to partner with Mr [D]. She introduced [the child] to him. She allowed [the child] to become close to Mr [D]. She ended that relationship after claiming she had been assaulted by Mr [D]. She said she would not return to that relationship.

   1055.In relation to the father I also have concerns about some aspects of his life and the affect of same on [the child]. Of particular concern is the father’s consumption of alcohol associated with the impact upon his behaviour of alcohol taken to excess.

8. The trial Judge then went on to give examples to illustrate his concerns about the parties.  These all related to the mother’s conduct, save for issues relating to violence.  We will refer to what his Honour said about violence when we come to deal with the relevant ground of appeal.  

9. In dealing with s 60CC(3)(j) (family violence), his Honour found that injuries the child sustained in October 2008, when in the father’s care, were the result of a tricycle accident, as alleged by the father, and not the result of an assault by the father, as the mother insisted.

10. Having completed his discussion of s 60CC(2) and (3), his Honour turned his attention briefly to s 60CC(4) and s 60CC(4A).  We do not need to consider that aspect of the reasons.

11. The trial Judge then discussed parental responsibility.  His Honour determined that it would be contrary to the child’s best interests to make an order for shared parental responsibility, having first found that the presumption in favour of shared parental responsibility did not apply because of his findings about violence.

12. Under the heading, “Balancing of all considerations under Section 60CC and the defined issues”, the trial Judge found that the orders he proposed would “operate to foster the best interests” of the child.  In summarising his reasons for arriving at that pivotal conclusion, his Honour again made mention of the fact that he had generally preferred the evidence of the father to that of the mother.   

13. In explaining his decision, the trial Judge also said: 

    1109.I find it very sad for [the child] that he cannot have a life where he can spend extensive time with each of his parents. He clearly has a close relationship with each parent. I accept he has a great need to spend substantial and extensive time with his mother, however, I have come to the conclusion that the cost to the child’s long term welfare is too great to allow that to happen at this time. That cost has been specified by me in these reasons particularly in dealing with section 60CC(d) above. In short there is a probability that the mother would continue to deal with [the child] in the conviction that he has been abused by his father, and like her, is a victim of domestic violence. I have no doubt that she would not be able to hide her own view of the father (a wife and child abuser) from [the child]. I am also sure she would find some way to circumvent any order that prevented her obtaining any medical, psychiatric or psychological assessment or therapy for [the child] as she has done in the past. I hold a fear that [the child’s] relationship with his father and the paternal family would suffer in such circumstances and may even break down.

14. In further explaining his decision, his Honour made other findings which touch on the issue of family violence.  We will refer to these when we come to discuss the relevant ground of appeal.  

15. In summarising his reasons for his ultimate decision, the trial Judge again set out the part of the evidence of the Family Consultant to which he had referred at paragraph 156 of his reasons.  It will be recalled that it was in this part of his evidence that the Family Consultant provided alternative assessments of the parties that were expressed to be dependent on credibility findings.  Having repeated this evidence, his Honour again noted that he had “largely been unable to give weight to the evidence of the mother where there is disagreement with the father”.

16. His Honour went on to say: 

    1129.Having assessed all of the evidence I have no confidence that the mother can offer [the child] stability and predictability as a principal carer. I have no confidence that the mother could be trusted to follow a Court order that she not have [the child] examined or treated by a medical, psychological or psychiatric practitioner without the consent of the father. I have no confidence that she would not question [the child] about possible abuse at the hands of his father. I have no confidence that the mother would not create an environment in which [the child] felt he was required to make untrue allegations against his father or his father’s family.  I have no confidence that the mother would not grasp even the most innocuous of [the child’s] statements to her as indicative of abuse by the father.

    …

    1134.Unless and until the mother has changed her view of the father as a child abuser, or changed the way she reacts to [the child’s] statements to her which she perceives as negative to the father, I can see no prospect of [the child] being able to have unrestricted time with his mother. There may come a time when [the child] has reached an age where an appropriate expert might advise the Court that the dynamic between the mother and [the child] has changed and therefore recommend any restrictions could be eased or removed. I have no idea when that might be.

17. The trial Judge concluded by referring to the proposed orders.  In doing so, his Honour noted that he had asked the mother if she “would consent to an order that she attend upon a psychologist to assist her in understanding the emotional environment she had created for [the child]”.  Although the mother had said she would not do so, his Honour said he would nevertheless recommend that she undertake such counselling because he could not “see any way forward for [the child] in his relationship with his mother if she does not try to address the circumstances which gave rise to the restricted orders which are required to be made”.  In the final paragraph of his judgment, his Honour therefore indicated that he would:

    …give the mother the opportunity to return to the Court to seek orders changing the time and nature of the time she spends with [the child] after she has undergone 12 months of therapy and in the event of her securing from her therapist a report which may be provided to the court and which states an opinion that the mother has responded to therapy and is unlikely to exhibit the type of parenting towards [the child] which fell for criticism in these reasons.

The orders appealed

1. The trial Judge’s orders provided for the father to have sole parental responsibility and for the child to live with the father.  The mother was to have supervised time with the child for at least two hours each week until he commenced kindergarten.  After he commenced kindergarten, the visits would be for not less than once per fortnight.  The orders also provided for the mother to have telephone and/or Skype time with the child at least twice each week. 

2. The orders carried a notation about the circumstances in which the mother could apply for their variation, which was in conformity with what his Honour had foreshadowed in the final paragraph of his reasons.  

The conduct of the appeal

1. Before turning to consider the grounds of appeal, we need to say something about the entirely unsatisfactory manner in which the appeal was conducted.

2. The Notice of Appeal was filed (an extension of time having been granted) on 29 November 2010, and was ultimately listed for hearing on 27 June 2011.  In the interim, the appeal had been deemed abandoned because of failure to file the Appeal Books, and then reinstated on specific terms.  The Appeal Books which were then filed were deficient and directions were made for the filing of supplementary Appeal Books. 

3. Shortly prior to the appeal hearing, the mother sought an adjournment, but that application was dismissed on 14 June 2011.  Directions were made at the time for the mother’s Summary of Argument to be filed by 22 June 2011, leaving little time for the father and the Independent Children’s Lawyer to respond. 

4. The mother’s Summary of Argument failed to comply with the basic requirements of the Family Law Rules 2004 (Cth), in that it failed to link the submissions to the grounds of appeal. The Summary of Argument contained almost no transcript references, which was surprising given the nature of the complaints, especially the ground asserting a denial of procedural fairness.

5. The mother was represented on the hearing of the appeal.  Counsel for the mother sought to excuse her quite inadequate oral submissions on the basis of the earlier refusal of the adjournment.  Whatever the reason, counsel was unable to take us to relevant portions of the transcript to support the miscellany of propositions she was attempting to make.  Eventually, and late in the day, counsel for the mother sought leave to make further submissions in writing. 

6. Given the time limitations, the inadequacy of the oral submissions and the grave consequences of the orders appealed, we acceded to the request of counsel for the mother.  We were not prepared, however, to direct other counsel to make submissions in response to the supplementary submissions.  To that point, counsel for the mother had not presented a single argument which identified error on the part of the trial Judge.  We considered it appropriate to await receipt of the supplementary submissions to see if there was any need to require the other counsel to respond. 

7. We thought, however, that it may assist counsel for the mother, in preparing her submissions, if the other counsel were to provide the transcript references to which they intended to refer in their oral submissions.  We directed them to provide such references by 30 June 2011.  We then directed counsel for the mother to provide “further concise written submissions relating to each of the grounds of appeal or groups of grounds, together with any relevant transcript references”. 

8. Counsel for the mother filed her supplementary submissions on 11 July 2011.  Some of these raised matters that had not been foreshadowed either in the grounds of appeal or in the Summary of Argument.  We had difficulty in understanding the connection between many of the submissions and the ground to which they purportedly related.  No submissions at all were advanced under a heading related to Ground 5, although we observed that, strewn amongst the medley of complaints, there appeared to be a number that might be directed to that ground.  Once again there was a paucity of transcript references.   

9. To complicate matters, the mother then purported to file her own submissions on 12 July 2011.  In fact, she provided four different documents entitled, “Grounds of Appeal”, “Summaries of Argument”, “Submissions – Grounds of Appeal” and “Points of Interest”.  Together these ran to about 125 pages.   

10. Upon receipt of these documents, the Regional Appeal Registrar wrote to the mother advising they could only be received with the consent of all parties, or a further order of the Full Court.  We were subsequently advised that consent had been forthcoming, and the documents were then duly filed.  Notwithstanding the considerable time and effort the mother must have devoted to making the heartfelt pleas contained in this additional material, we did not find the documentation to be of assistance in seeking to identify appealable error.  If anything, the documents tended to provide a further basis for considering the trial Judge was justified in arriving at his assessment of the mother. 

11. After considering the supplementary written submissions, we determined that it would not be appropriate to put the other parties to the expense of providing further submissions.  As will become apparent, we were not persuaded that any of the complaints demonstrated appealable error.    

Grounds 1 and 2 – failure to apply and consider the Statute

1. By Ground 1 the mother asserts that the trial Judge erred in failing to “apply” s 60CC(2)(b) of the Act, and by Ground 2 she claims his Honour also erred in failing to “properly consider” s 60CC(3)(j) of the Act. No particulars were provided of either complaint.

2. Both of the legislative provisions mentioned in these grounds deal with family violence in the context of determining what is in a child’s best interests.  Subparagraph 60CC(2)(b) requires a court to take into account “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse…or family violence”.  Subparagraph 60CC(3)(j) requires consideration of “any family violence involving the child or a member of the child’s family”.       

3. Although some attempt was made in the submissions to support these grounds, the propositions had so little substance they do not bear repetition. Our examination of the submissions indicates that the real grievance is not about how the trial Judge applied s 60CC(2)(b), or how he considered s 60CC(3)(j), but rather his rejection of the mother’s evidence about the father’s violence. These findings are challenged by Ground 5 as being “contrary to the evidence”.

4. We propose to defer consideration of the complaints about the treatment of the violence issue until we come to Ground 5. At this point, it is sufficient to say we are satisfied the trial Judge was well aware of the importance of making orders which would protect the child from harm. This is clear, inter alia, from what his Honour said at paragraph 1019, where, after reciting s 60CC(2)(b), he recorded he would “be very much alive to being able to protect [the child] from all forms of abuse”. We have recited sufficient of his reasons to indicate that his Honour only made the orders under appeal after satisfying himself that the child was not at risk of abuse in the care of the father.

Ground 3 – admission of inadmissible evidence

1. This ground asserts that the trial Judge erred in admitting inadmissible evidence that was said to have been prejudicial to the mother’s case. 

2. The ground contains no indication of the evidence said to have been improperly admitted, but the written submissions reveal that the complaint concerns an affidavit of the mother’s former husband, Mr W, which counsel for the father successfully tendered as an exhibit.  The affidavit had originally been filed in proceedings between Mr W and the mother in the Family Court of Western Australia. 

3. In her original Summary of Argument, counsel for the mother articulated her complaint about the admission of the affidavit in this way: 

   12.      …the Judge allowed the mother to be cross examined by Counsel for the husband on an affidavit sworn by her first husband, [Mr W], which had been filed in previous proceedings in the Family Court.  [Mr W] was not witness for any party in the case.  The document was not her document and the mother had not had notice of it.  It is submitted that the document should not have been tendered and the Judge erred in admitting it.  The Judge relied on this document in his judgment, despite the fact that the witness was not cross examined on it.  The fact that the judge did this, fundamentally contradicts the maxim that a party should be given the opportunity to contradict what is asserted against them.

1. The submission did not specify the part of the affidavit that was said to have been relied upon by the trial Judge.  This was clarified in the mother’s supplementary written submissions, where the following was said:   

   31. …the Judge allowed Counsel for the father to cross examine the mother on an affidavit of the mother's former partner, [Mr W], which had been evidence in previous proceedings and admitted a part of this affidavit into evidence (Exhibit F8). It is submitted that this cross examination should have been objected to.  In the first place, as opinion evidence, some of it was inadmissible, and also as hearsay.  Secondly, it was not the mother's document, and so could not be put to her as a prior inconsistent statement.  [Mr W] was not called and the mother had no notice that this document was to be tendered.  The Judge accepted the evidence and appeared to accept the conclusion therein, ie that the mother because of her history of childhood sexual abuse had unjustified fears in regard to her own children.

2. This submission overlooks the fact that the mother was represented by counsel at the time she was cross-examined on the affidavit of Mr W.  If her counsel did not object, the trial Judge can hardly be criticised for allowing the questioning to proceed.  Furthermore, counsel for the mother expressly advised the trial Judge that she had no objection to the affidavit of Mr W being tendered.  (Transcript, 4 December 2008, page 327; see also transcript, 3 December 2008, page 242).  

3. The supplementary submissions do at least make clear that the real concern about the receipt of Mr W’s affidavit arises out of the suggestion that the trial Judge accepted the conclusion said to have been contained in it, namely that “the mother because of her history of childhood sexual abuse had unjustified fears in regard to her own children”.

4. The relevant reference to the affidavit of Mr W was in paragraph 764 of his reasons, where his Honour said:

   The mother was read part of an affidavit that had been sworn by [Mr W] in the proceedings between him and the mother in the Family Court of Western Australia. The passage quoted is as follows “The respondent mother was sexually abused when she was a child and for some years now has been projecting the pain of that experience into a number of inappropriate situations.” The mother was then asked “Do you think that was probably right at that time.” She replied “Yes.” She was asked “Do you think it is no longer the case?” She replied “That is right.”

5. We are unable to understand how the mother can complain about the use made by the trial Judge of the affidavit of Mr W in circumstances where she had adopted as accurate the only portion of it on which the trial Judge can be seen to have placed any reliance.

6. There is accordingly no merit in this ground.  

Ground 4

1. By this ground it is asserted that the trial Judge erred by wrongly excluding evidence from the mother.  Once again, the ground fails to particularise the evidence that was said to have been wrongly excluded.

2. Our examination of the submissions suggests the ground was intended to encompass five different areas of complaint. 

Records from North Shore Hospital

1. At paragraph 7 of her Summary of Argument, counsel for the mother complained about the trial Judge having not admitted:

   …the hospital notes from the mother’s admission to North Shore hospital after the assault at [Sydney station], which were corroboratory evidence of the mother’s evidence that the father had been violent towards her.

2. The Summary of Argument contained no transcript references to demonstrate that the trial Judge had, in fact, refused to admit any notes from North Shore Hospital.  Save for one oblique comment, counsel for the mother did not make any further reference to this complaint during the course of her oral submissions. 

3. Although we gave counsel for the mother an opportunity to provide transcript references in her supplementary submissions, none was forthcoming on this topic.  Instead, when dealing with the Sydney station incident in paragraph 14 of the supplementary submissions, complaint was made about the trial Judge’s failure to have regard to “the other evidence eg the hospital notes of her admission”. 

4. Failure to have regard to evidence is a different matter to refusing to receive evidence.  Either way, in circumstances where we have not been provided with any clue about where we might find either the relevant evidence, or the ruling that the evidence would be excluded, we are not persuaded this complaint has merit.  We also observe that it was not in issue that the father had assaulted the mother at Sydney station, the only dispute being the circumstances in which the assault occurred. 

Incomplete police records

1. The second part of the complaint was set out in paragraph 10 of the Summary of Argument, which contained an assertion that parts of the father’s police record were incomplete.  The submissions made in support of this proposition were so muddled that we do not consider they bear repetition or consideration. 

The affidavit of the mother’s stepfather

1. The third complaint, appearing in paragraph 11 of the Summary of Argument, was that the trial Judge refused to accept the affidavit evidence of the mother’s stepfather because he was not available to be cross-examined.  However, during the course of oral argument, we were informed by counsel for the Independent Children's Lawyer that, in fact, the stepfather had not provided an affidavit at all, although he had been interviewed for “the family reports”. 

2. By the time the mother’s counsel provided her supplementary submissions it was no longer suggested that the stepfather had sworn an affidavit.  Instead, it was asserted that “out of fairness to the mother” the trial Judge should have drawn her attention to the consequences of not calling her stepfather to confirm what he had said to the “Family Reporter” about having witnessed the father being violent toward the mother. 

3. The trial Judge touched on this issue in his reasons as follows:

   810.The mother was cross-examined about a portion of [Dr RN’s] report relating to meeting with [the mother’s stepfather]. In the second paragraph on page 13 the following appears:

   [The mother’s stepfather] had got out of bed and drove to the home where he heard yelling and moaning. He stated he found [the father] sitting on top of [the mother] with his hands around her throat and called out “Stop it.”

   811.The mother agreed that the father had in his sworn evidence denied such an assault. She was asked why [the mother’s stepfather] had not sworn an affidavit. She said he had spoken to [Dr RN] and there was no need. It was put to her that such a method of providing that evidence to the Court denies the father the ability to cross-examine [the mother’s stepfather]. The mother acknowledged that [her stepfather] had been sitting in Court and was in the body of the Court on that day.

4. His Honour, at this point in his reasons, was dealing with evidence given in 2009.  The mother was represented by counsel at the time.  No application was made by her counsel to call the stepfather to give evidence on this issue.  In this regard it is important to observe that his Honour had previously made clear that he would not place any weight on anything said by anybody who had been interviewed by the report writers, unless that person was called to give evidence.  (Transcript, 2 December 2008, page 107).

Medical records from H Hospital

1. The fourth part of this complaint concerns the alleged refusal of the trial Judge to receive into evidence certain medical records relating to the incident in which the father says the child was hurt in a tricycle accident.  The complaint was expressed in the following way in the summary of argument (all errors are in the original):

   14. The mother had taken the child to the [H] Hospital on 11 October 2008 after he was returned to her by his father with injury to his face, bruising to the eyes and a cut on his lip.  The mother’s evidence was that she took him to the hospital and the hospital then called the police on the basis that the child’s injuries were consistent with assault.  The ICL asked to be allowed to see the hospital notes from [H Hospital] before she made her submissions.  The Judge refused this application.  The hospital notes were not allowed into evidence.  The mother attempted to tender them but the Judge upheld Counsel for the father’s objection to them.  It is submitted that these notes should have been admitted and considered by the Judge.  The Judge said in his judgment “I have looked at the photos [of the child] and I cannot discern any bruising to his eye” (Judgement of His Honour le Poer Trench at par 1036) The hospital notes refer to the child having bruising under his right eye. [Leave is sought to adduce these notes].

2. Counsel for the mother acknowledged in the course of her oral submissions that she had been mistaken in asserting that the Independent Children's Lawyer had sought permission “to be able to see these notes [from H Hospital] before making her submissions”, and that she was therefore mistaken in alleging that the trial Judge “refused this application”.  

3. Counsel for the mother was also unable to take us to any part of the transcript to show that the trial Judge had refused to receive into evidence the records from the H Hospital.  It transpired that the complaint was made on the basis of what the mother recalled as happening at trial, rather than by reference to the transcript.  It was then suggested that some of the transcript was missing.  It is for the mother to establish her complaint, and we are not prepared to proceed on the basis of her recollection, especially when it is contained in the same paragraph as another assertion now accepted to be entirely fallacious.

4. It is difficult to understand, in any event, what might have been contained in the records of H Hospital that would have assisted the Court to determine how the child sustained the injuries he received in October 2008.  The mother had taken the child to a general practitioner for assessment of these injuries on both 12 and 14 October 2008.  The doctor’s records of what she observed were in evidence, as were photographs taken by the mother at the time, and further photographs taken by the police on 14 October 2008.  These were all referred to by the trial Judge at paragraph 1073 of his reasons. 

5. It was not in doubt that the child had sustained injuries.  The trial Judge recorded the father’s own admission that the boy “had injuries to his right cheek, right hand and his legs [and he] had a bump below his right eye”, as well as “a swollen lip and scratches on his legs”.  His Honour also recorded the content of the notes of the general practitioner on 12 October 2008 to the effect that his right eye was “black”, his upper lip was swollen and he had an injury to his right ring finger.   He further recorded the doctor’s notes made on 14 October 2008 to the effect that the boy had a “haematoma on the right eye” and that his “right upper lip was still swollen”. 

6. It is true that the trial Judge recorded he had been unable to see any bruising on the child’s face in the photographs tendered in evidence, but this presumably had something to do with the quality of the photographs, since there is nothing in his Honour’s reasons to suggest he doubted the child had sustained the injuries described by the father and by the general practitioner.

7. The real issue was whether the injuries had been sustained in an assault, or by accident.  His Honour found that the injuries were the result of a tricycle accident on 7 October 2008.  That finding was clearly open to him, given his favourable findings about the father’s credit.  In this instance, however, there was an even more compelling reason to accept the father’s account.  The trial Judge also had before him an affidavit of the father’s neighbour, who said she had been with the father on 7 October 2008 and had witnessed the child fall off his bike, following which she observed that the child “had grazed the right side of his cheek and nose [and] had cut his lip and had scratches on his legs [and had] some swelling on his face”.

8. His Honour summarised the neighbour’s evidence in his reasons and indicated he accepted her evidence.  Given that she was not required for cross-examination, it is difficult to see how his Honour could possibly have arrived at any conclusion other than the one he did.

9. In the supplementary submissions it was suggested that his Honour should have explained to the mother “the evidentiary consequences’” if she did not require the neighbour to be cross-examined.  That submission was made notwithstanding that the mother was represented by counsel when the decision was made not to cross-examine the witness.  (Transcript, 2 December 2008, page 174).  It was for counsel, not his Honour, to advise the mother of the consequences of not requiring a witness for cross-examination. 

Witnesses corroborating the mother’s case concerning violence

1. The final complaint, which we presume might have been intended to relate to Ground 4, was set out in these terms in the mother’s Summary of Argument:

   17. The mother had several witnesses corroborating her case that the father had been violent towards her.  The findings of the Judge and his conduct of the hearing, prevented the admission of this evidence which should have been considered in assessing the evidence of violence by the father.

2. Apart from the mother’s stepfather, about whom we have already made comment, we were not informed of the identity of these “several witnesses” – or how the trial Judge had prevented the admission of their evidence.

3. For these reasons we find no merit in Ground 4.

Ground 5 – findings about the father’s violence

1. By this ground it is asserted that the trial Judge’s “findings in regard to the violence of the husband were contrary to the evidence”.  Once again the ground failed to particularise which findings in the 195 page judgment were contrary to the evidence. 

2. The trial Judge dealt with the issue of violence at many stages of his reasons, but his essential findings about the father’s violence were contained under the heading “Was the father physically violent to the mother?”.

3. Given we do not know which findings are challenged, we will set them out in full (noting that the “assault proceedings” were those that arose from the Sydney station incident): 

   997.The mother has made many allegations of domestic violence against the father. They have all been particularised earlier in these reasons. The father’s case in relation to all the allegations was put to the mother. The mother’s allegations against the father in relation to violence were not all put to the husband. Part of that occurred because when the case resumed in 2010 the mother acted for herself.

   998.The father’s case is that all the incidents alleged by the mother involved violence by her. He claims that any force used by him was used to contain the mother and prevent her attacks upon him. The father produced photographic evidence of some of the injuries he says were inflicted upon him by the mother. The mother relied on some medical records to support her contention that the father had been violent to her.

   999.In her submissions the mother quoted parts of the transcript of evidence of the assault proceedings run against the father by Police in the Local Court and then the District Court on the hearing of the father’s appeal.

   1000.The mother quotes the father’s cross-examination in the Local Court:

   Question:  Did you hit her with a closed fist to the side of the face?

   Answer: After I was hit twice on the side, twice on the back, I hit my wife.

   1001.The transcript quotes also contain extracts from the evidence of witnesses who were not known to either party.

   1002.I am satisfied that the father did assault the mother as he told the Court on that occasion. I am also satisfied that the mother had attacked the father as he alleged. It was clear that the father ran a defence of self defence to the assault charge and the Magistrate was not satisfied the defence was established. There was no issue of fact about the father punching/pushing the mother. That was admitted. I here refer to the evidence contained in Exhibit ICL7. I acknowledge the difficulty the Magistrate had in determining the case given that the impartial witnesses gave conflicting evidence relating to whether the mother had been aggressive to the father prior to him pushing or punching her. On the evidence I have seen I consider that the finding of the Magistrate was open to him. In any event the Magistrate was supported in his conclusion by the Judge who determined the father’s appeal.

   1003.The father set out details of his allegations that the mother was violent to him in his evidence. He tendered photographs. The mother was cross-examined about her version of the facts relating to each event. On many occasions the mother conceded she had hit the father, as he alleged, however she claimed it was during an attempt to stop the father strangling her.

   1004.The mother made her allegations against the father of violence. She was cross-examined about those. The father was cross-examined about some of the alleged assaults upon the mother by him.

   1005.The alleged assaults occurred over a fairly lengthy period of time. Given what has been said about the mother’s memory I have no confidence she has recalled the events accurately. I find the father’s evidence believable and more reliable.

   1006.I find that each of the parties has been violent to the other. I do not accept that the father has endeavoured to choke or strangle the mother or do her serious harm. I accept the father’s evidence that the mother has inflicted injury upon him. I do not accept the mother’s evidence that any harm so inflicted was self defence.

   1007.In relation to the specific evidence relating to the incident in the hotel in Canada and the hotel at Melbourne airport I find the incidents occurred in the manner described by the father.

   …

   1008.What flows from my findings in relation to the issue of violence by the father to the mother is that I have accepted the father’s evidence that the mother was violent to him as he alleges. That includes an acceptance of his evidence that the mother’s violence was not exhibited as self defence.

4. Given that a particular focus of the complaints of counsel for the mother concerned the Sydney station incident, it is appropriate we also set out part of what his Honour said elsewhere about the father’s part in that incident:

   1117.I also take into consideration the opinion of [Dr RN] in relation to the father namely:

   It…was concerning in his apparent failure to reflect on his contribution to the sorry story of this couple’s relationship, despite evidence that he had attacked/retaliated against his then pregnant wife in the [Sydney station] incident...

5. His Honour went on to find (our emphasis):

   1119.I should also record that I consider the father to be a far better all round parent for [the child] than the mother, however, I would not wish it to be construed that I consider he has no faults or potentially harmful aspects of his personality to [the child’s] development. I have found that he was violent to the mother. He admitted, on his oath in Court, that he had punched the mother at a time when she was 38 weeks pregnant. Such a loss of control does not speak well of the type of temperament which might be regarded as optimal in a parent for [the child].

6. His Honour also touched on this issue earlier in his reasons, where he said:

   1060.The mother alleges that the father has been affected by alcohol and become violent to her. One such occasion occurred shortly before [the child] was born. This alleged assault was the subject of a charge laid a long time after the event. I am satisfied that on that occasion the father was affected by alcohol to such an extent that he allowed himself to act in a way he otherwise may not have acted.

   1061.As can be seen earlier in these reasons I have concluded the parties were each violent to the other. In so doing, they each allowed a domestic situation to escalate to an unacceptable level. …

1. Having set out the most important of the findings, we turn now to the various complaints concerning the trial Judge’s approach to the issue of violence. 

The Sydney station incident

1. A recurrent complaint in the submissions of counsel for the mother was the use of the word “allegation” by the trial Judge when dealing with the mother’s evidence about the father’s violence.  Particular umbrage was taken with his Honour having said in paragraph 28 of his reasons:

   In October 2005 there was an altercation between the mother and father at [Sydney station]. The mother alleged she had been assaulted by the father.

2. Counsel for the mother insisted this was “a very critical point” and “central to our case” because the mother’s evidence about the Sydney station incident was not an “allegation”, but rather a “proven history”, supported by the evidence of “eye witnesses”.  As we attempted, albeit without notable success, to point out during argument, it was not inappropriate for the trial Judge to refer at that point of his judgment to the mother’s assertion as an “allegation”. 

3. This is because, at that very early stage in his reasons, the trial Judge was simply setting out a chronology of relevant events.   As will be seen from the findings we have reproduced above, his Honour also recorded that the father had acknowledged punching the mother at Sydney station; that he had been found guilty of assault; and that his appeal against the assault conviction had been dismissed.  In other words, his Honour was well aware that the incident involved much more than a mere “allegation” by the mother.

4. The main point of contention about the Sydney station incident seemed to be whether the mother had been aggressive toward the father prior to him punching her, or whether she had merely defended herself after he attacked her.  We accept that the finding by his Honour that he was “satisfied that the mother had attacked the father as he alleged” might be interpreted as meaning that the trial Judge accepted the mother had hit the father first, although reading the reasons as a whole we are not convinced this is what his Honour intended to convey.  However, if that was his finding we consider it was open to him, given his other findings relating to the greater credibility of the father and the mother’s acknowledged memory deficit.  The important point to note is that it was only the father whose conduct was expressly criticised by the trial Judge, when he referred to the father’s “loss of control” during the incident. 

5. Counsel for the mother’s submissions appeared to proceed on an assumption that the trial Judge was bound by the findings made in the Local Court, which would include accepting that the father had not acted in self-defence. On the other hand, counsel for the father submitted that s 91 of the Evidence Act 1995 (Cth) (“the Evidence Act”) prevented the Court from making any use at all of those findings.

6. Although counsel for the father did not have the opportunity to defend his submission, we doubt this proposition is valid in proceedings such as these, which were conducted pursuant to Division 12A of Part VII of the Act. Subsection 69ZT(1) of the Act provides that Part 3.5 of the Evidence Act (of which s 91 forms part) does not apply to such proceedings.

7. Although we do not have the benefit of submissions, we consider that s 69ZX(3) of the Act governs the admissibility and effect of the evidence given, and the findings made, in the Local Court. That subsection provides that a court “may” receive in evidence the transcript of evidence in proceedings in another court and “draw any conclusions of fact from that transcript that it thinks proper” and, in addition, “adopt any recommendation, finding, decision or judgment” made by that court.

8. Assuming, as we do, that s 69ZX(3) applied, it was open to the trial Judge to receive into evidence the transcript of the Local Court proceedings, and the judgment given by the Magistrate. However, the use of the permissive “may” makes plain that the trial Judge was not bound to adopt all of the Magistrate’s findings. Accordingly, to the extent that the trial Judge may not have accepted those findings, it was open to him to do so.

9. It was asserted in the mother’s supplementary submissions that the trial Judge had “rejected the tender of the whole of the transcript” of the Local Court proceedings.  We were not informed when in the proceedings this allegedly occurred.  We have, however, located the following passage from the transcript on 4 December 2008, which makes clear that the trial Judge was quite prepared to receive any relevant portions of the transcript into evidence (our emphasis): 

   [COUNSEL FOR THE MOTHER]:  Your Honour, the tender of the transcript of the proceedings in the Local Court, I would tender the entire transcript.

   HIS HONOUR:  Why?

   [COUNSEL FOR THE MOTHER]:  Because it does - it was a defended hearing, as your Honour said, and it's sworn evidence.  There's a finding, should I say.

   HIS HONOUR:  We know what the finding is.

   [COUNSEL FOR THE MOTHER]:  Yes, your Honour, but it's - - -

   HIS HONOUR:  If you want to find the part that describes what it is in this COPS entry you want to put into evidence and tender those pages, that's fine.  But if you want me to read a great wad of papers just to find something that you haven't bothered to find yourself, I'm not going to do it.  It's not unreasonable for me to take that stand, is it?

   [COUNSEL FOR THE MOTHER]:  No, your Honour.

   HIS HONOUR:  Well, you find it, you tell me exactly where it is that you want to rely on the transcript and I'll read it and I'll accept it into evidence.  You don't have to do it right now.

   [COUNSEL FOR THE MOTHER]:  Thank you, your Honour. 

10. In any event, a portion of the transcript was received into evidence and discussed at length in his Honour’s reasons (at paragraph 225 and following).

Assessment of the father’s propensity for violence on the basis of demeanour

1. Counsel for the mother was critical of the trial Judge for having found in his reasons that there was nothing about the father’s presentation in the witness box “which suggested he was an aggressive ‘wife beater’”. Counsel complained that “to assess someone’s criminal history on the basis of their appearance is not a sound jurisprudential method”. 

2. We note that his Honour’s remark about the husband not having presented in the witness box as a “wife beater” was immediately followed by the observation that he had also “at no stage presented in an apparently intoxicated state”.  We find nothing in his Honour’s reasons to suggest he made his determination about the father’s propensity for violence on the basis of his demeanour, any more than he determined the husband’s drinking habits on the basis of his sobriety in the witness box.  Thus, notwithstanding what he said about the husband not appearing to be intoxicated in Court, the trial Judge recorded at paragraph 1055 of his reasons:

   In relation to the father I also have concerns about some aspects of his life and the affect of same on [the child]. Of particular concern is the father’s consumption of alcohol associated with the impact upon his behaviour of alcohol taken to excess.

3. The fact is, notwithstanding how the father presented in the witness box, the trial Judge accepted he had behaved violently toward the mother.

Not taking the mother’s case seriously

1. Complaint was made about the way the trial Judge had summarised the mother’s case at one point in cross-examination.  It was submitted that the summary did not reflect what the mother had said and was:

   …another instance of the Judge caricaturing the mother’s account of violence and then making a judgment based on rejection of that caricature, rather than what the mother had said, which was based on what she (and others) observed. 

2. Counsel for the mother was selective in her citation of this part of the transcript.  She provided us with what his Honour had said by way of summary of the mother’s case, but failed to provide the mother’s response. 

3. The relevant passage is set out below – in full:

   [COUNSEL FOR THE FATHER]:  He can’t help himself, according to you?---No, I didn’t say that.

   HIS HONOUR:   Well, it’s just being put as the force and effect of your evidence.  That is, he is such an evil character that he sexually abuses his child and no evil, really, could be put beyond him.  That’s what the summation of your evidence is, isn’t it?---Mm.  But not ongoing.

   [HIS HONOUR]:   You couldn’t expect him - - -?---But not ongoing.

   [HIS HONOUR]:  Well, why would he suddenly change?---Because the concerns in this case have been raised and [the child] has said to JIRT [in Perth] that daddy punches him.  He said daddy bangs him.  He disclosed to [Mr D] and I what daddy does to him.  So I believe, hopefully, that [the father] will think twice before he does anything.  And nothing has happened since, in the last few weeks, since the supervised visits and I believe that is because [the father] is no longer doing anything.  And I would hope that it would stop.

4. On our reading of that passage, the mother adopted his Honour’s summary as accurately representing her opinion of the father based on his past behaviour, albeit she expressed hope that he might modify his behaviour in the future. 

5. Counsel for the mother went further in using the passage cited above to support her assertion that:

   …The judge’s theory of violence towards children as only committed by monsters, does not accord with our understanding of child sexual assault, which is more like a syndrome.

6. This assertion stands to be measured against the careful and detailed analysis his Honour made of the “evidence” provided by the mother before he rejected her allegations that the father had anally raped and otherwise sexually molested and assaulted the child. 

7. Complaint was also made that the trial Judge had ordered a psychiatric assessment of the mother after she had given evidence of a history of assaults by the father.  What counsel for the mother failed to acknowledge in her submission was that the trial Judge also ordered a psychiatric evaluation of the father.  See the terms of reference set out in the letter from the Independent Children’s Lawyer to the Single Expert dated 6 May 2009. 

Assaults on the mother by her work colleagues

1. Counsel for the mother complained in her supplementary submissions about the trial Judge’s treatment of the mother’s allegations that she has been drugged and molested by work colleagues.  Although these complaints appeared under a heading relating to Grounds 3 and 4, we have difficulty in seeing the association.  As no submissions were made expressly relating to Ground 5, we assume these complaints were intended to support that ground.   

2. One of the complaints concerns his Honour having made a facetious remark to counsel for the father during the course of the mother’s evidence about the repeated assaults on her by work colleagues.  It was submitted that this remark was “a further instance of the Judge’s [sic] not seriously considering the history of violence”.  Whilst we accept the remark was unnecessary, we also note it was not considered important enough to have been mentioned in the mother’s Summary of Argument. 

3. We note also that the trial Judge carefully considered the allegations when he came to prepare his judgment.  At paragraph 12 of his reasons, his Honour recorded the mother’s claim that she had been drugged in 2000 whilst employed in the travel industry.  At paragraph 13 he recorded the allegation the mother had been drugged in 2001 whilst attending a training course.  At paragraph 15 he recorded her complaint that she had been sexually assaulted by a colleague in a taxi in September 2002.  At paragraph 16 he recorded the mother’s claim that she had been drugged and sexually assaulted in October 2002 by an S Company employee.  At paragraph 735 he recorded another incident in Z in January 2004 when the mother said a colleague had raped her.  His Honour also considered a good deal of evidence relating to that incident at paragraphs 736 to 746.

4. His Honour made his findings about these matters early in his judgment when he said:

   95.The mother’s evidence relating to the number of times she was “drugged” by other [S Company] staff is also very troubling. The most troubling of the allegations was made in relation to a trip the mother had to [Z]. All relevant evidence relating to that incident is set out in these reasons. I do not accept that the mother was drugged and raped on that occasion. I do not accept that the mother was drugged on all the occasions upon which she alleged to [S Company] this had occurred. I would not conclude that the mother was never drugged, as she has alleged, however, assessing all the evidence on those allegations I find, on the balance of probabilities she was not drugged as alleged.

5. His Honour returned to the issue at paragraph 1066 where he said:

   1066.…[The mother] regards herself as a victim of domestic violence and possibly rape by the father and other [S Company] staff. She believes she has been drugged and raped. She complained to [S Company] about this and an investigation was carried out by [S Company]. The evidence collected (which is referred to in these reasons (see the cross-examination of the wife)), convinced the investigators her complaints were unsubstantiated.  Having heard the cross-examination of the wife in relation to that incident I do not accept she was drugged or raped. The most probable conclusion must be that the wife became amorous with a [colleague] whilst on an overseas work trip.

6. These findings were not challenged by the Grounds of Appeal.  Furthermore, the extent to which his Honour set out and discussed the evidence indicates that he did take the mother’s allegations seriously and did not entirely dismiss them, as he accepted the possibility there might be some truth in parts of her claims. 

7. In this part of her submissions, counsel for the mother also complained that:

   The Judge and Counsel for the husband on several other occasions throughout the cross examination and the Judges own examination of the Appellant minimized or caricatured her account of her abuse. 

8. However, to support this proposition, counsel referred to just one passage of cross-examination in which his Honour made only one intervention which, on any fair reading, was designed only to clarify the mother’s evidence concerning the frequency and extent of the sexual abuse she had described as having been perpetrated against her by her father.  In reproducing the transcript, counsel for the mother failed to include the mother’s response to the trial Judge’s question which, on our reading, indicated her full agreement with the proposition his Honour had put to her.  (Transcript, 4 December 2008, page 308).

9. Whilst the submission we are presently discussing also complained about the conduct of counsel for the husband, that part of the argument demonstrates a misapprehension not only about the task of an appellate court, but also about the role of counsel.  We are concerned only with identifying the presence (or absence) of appealable error on the part of the trial Judge.  At the time the mother was being cross-examined about her claims of assault by her work colleagues, she was represented by counsel.  If she was cross-examined in an inappropriate fashion it was open to her counsel to object.  Our attention was not drawn to any objection taken by her counsel. 

10. For these reasons we find no merit in Ground 5.

Ground 6 – denial of procedural fairness

1. By this ground it is asserted that the trial Judge denied the mother procedural fairness and an impartial hearing.  As with the earlier grounds, we were not favoured with any particulars of the matters said to support this ground. 

2. The basis upon which this complaint is made can be ascertained by reference to the supplementary submissions, in which counsel for the mother claimed that “a reasonable and intelligent lay observer would have formed an apprehension of bias of the Judge against the mother”.  The submission in fact went further, as counsel for the mother boldly asserted that “the effect of the way in which the Judge ran the hearing was that the mother had three lawyers against her”.

3. We turn now to consider the matters relied upon in support of these assertions.

Interventions and setting of time limits by the trial Judge

1. It was asserted in paragraph 49 of the supplementary submissions that:

   In the course of the first hour and twenty minutes of Counsel for the mother’s the cross examination of the father, the Judge intervened twenty six times.  The Judge repeated to Counsel for the mother on many occasions the need for her to finish… 

2. Examples were then given of the occasions when his Honour asked questions or made comments about the length of the cross-examination undertaken by counsel for the mother.  However, none of these was made in the first hour and twenty minutes of the father’s cross-examination, and no example was given of any inappropriate intervention made by his Honour in that period, or indeed at any later stage in the cross-examination.

3. In the absence of any reference in the submissions to any inappropriate intervention by the trial Judge we propose to do no more than set out, and comment briefly on, the first three of his “interventions” in the cross-examination.

4. The first intervention was as follows:

   [COUNSEL FOR THE MOTHER]: Isn’t it the case that you had a psychiatric evaluation?

   HIS HONOUR:  Say that again, I’m sorry I didn’t hear that.

   [COUNSEL FOR THE MOTHER]: He had a psychiatric evaluation or a psychological profiling.

   HIS HONOUR:  Well there’d be a fairly substantial difference.  What is it?

   [COUNSEL FOR THE MOTHER]: I’m waiting on the subpoena.

   …

   HIS HONOUR:  Right.  What subpoena are you waiting on?

   [COUNSEL FOR THE MOTHER]:  It’s the subpoena from the defence force your Honour in Western Australia.  It’s number 35 your Honour.

   HIS HONOUR:  Has anybody got that at the Bar table?

5. Not only was there nothing wrong with his Honour pointing out that there was a difference between a “psychiatric evaluation” and a “psychological profile”, it is apparent he then went on to assist counsel for the mother to locate the document, which the transcript reveals was then found and put to the witness.

6. The second intervention was as follows:

   [COUNSEL FOR THE MOTHER]:  Do you recall supplying your birth date to your solicitor for issuing a subpoena on your criminal record?---Yes.

   [COUNSEL FOR THE MOTHER]:  Do you recall what date you gave?---[… August 1970].

   [COUNSEL FOR THE MOTHER]:  So if the subpoena went out under [an earlier date in August 1970] that would have been a mistake?---That’s not my birth date.

   [COUNSEL FOR THE MOTHER]:  Well can I say this to you.  If the subpoena was issued recording your birth date as - - -

   HIS HONOUR:  Well that’s pretty obvious isn’t it ma’am?  What’s your next question?

   [COUNSEL FOR THE MOTHER]: Are you aware what was returned on that subpoena?---No.

7. Again, we see nothing wrong with the trial Judge seeking to move the cross-examination along in this fashion – his Honour was clearly indicating that he accepted that if the wrong date of birth was given, the correct criminal record would not have been provided. 

8. The third intervention was as follows:

   [COUNSEL FOR THE MOTHER] Do you recall that in 1991 you had a conviction for stealing?---No.

   [COUNSEL FOR THE MOTHER]:  In 1996 you had another conviction for stealing?---No.  I was working.

   [COUNSEL FOR THE MOTHER]:  You’re saying that didn’t happen?---I was the driveway attendant.

   [COUNSEL FOR THE MOTHER]:  So you were convicted, what part did you play in this?

   HIS HONOUR:  Well he hasn’t agreed that he was convicted of anything.

9. This was not only an entirely appropriate intervention, but if this was the standard of cross-examination, it may also help explain why his Honour had to intervene 26 times in the first hour and twenty minutes of cross-examination.

1. We turn now to the complaints about his Honour having curtailed the cross-examination of the father.  We have already commented that counsel for the mother did not draw our attention to any comment made by the trial Judge about the length of the cross-examination in the first hour and twenty minutes (which was the period the father was under cross-examination on 1 December 2008). 

2. The first remark to which counsel drew our attention was made on 2 December 2009, prior to counsel for the mother resuming her cross-examination.  The trial Judge merely enquired of counsel for the mother “how long are you proposing to be with this cross-examination?”.  Counsel for the mother failed to draw our attention to the response, namely, “I'd say about 30 minutes, your Honour, I should be finished” (our emphasis).

3. Counsel for the mother also failed to draw our attention to what had been said the previous afternoon, when the proceedings had been adjourned.  That passage of the transcript also provides much needed context to remarks his Honour was later to make about the length of the cross-examination by counsel for the mother.  The relevant passage is repeated below (our emphasis):

   [COUNSEL FOR THE MOTHER]:  Your Honour, I note the time.

   HIS HONOUR:  Have you finished now?

   [COUNSEL FOR THE MOTHER]:  No, I haven't finished.

   HIS HONOUR:  How much longer do you anticipate you'll be?

   [COUNSEL FOR THE MOTHER]:  Your Honour, I need to go through some of the subpoenaed material which I didn't view before because it wasn't released.  If I might reserve my last questions for tomorrow morning?

   HIS HONOUR:  Certainly, what I had in mind tomorrow morning - first of all, [the father], you can leave the witness box and take a seat.

   HIS HONOUR:  I'm starting at 9 o'clock tomorrow morning.  I don't envisage I'll take long for my 9 o'clock show and so I thought that we might start this at 9.30 because the Family Consultant has a limited availability.  So we'd start with the Family Consultant at 9.30 if everybody can make that?

   [COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]:  Yes, your Honour.

   HIS HONOUR:  Then when we finish his evidence we'll finish off the father's evidence and proceed on with the case from there.  Is that satisfactory?

   [COUNSEL FOR THE MOTHER]:  Thank you.

4. Having told his Honour that she was reserving her “last questions” until the following morning, and then, the following morning, saying she would be finished in “about 30 minutes”, it is unsurprising that his Honour would make some comment when the cross-examination was still proceeding after a further 50 minutes had elapsed.  (Transcript, 2 December 2008, page 119 to 136). 

5. Once again, however, counsel for the mother was selective in those parts of the transcript she reproduced in her supplementary submissions when drawing attention to his Honour’s remarks about the time taken in cross-examination.  We set out below the relevant passage in full (our emphasis):

   HIS HONOUR:  Didn't we go through all this yesterday.

   [COUNSEL FOR THE MOTHER]:  Yes we did, your Honour.

   HIS HONOUR:  We've been all through this, the surveillance cameras, et cetera, et cetera.  Now when we came back at eight minutes past 12, I asked you how much longer you were going to be.  You said: "Half an hour".  It's just coming up to an hour and I notice that you're up to paragraph 80 or 90 of what appears to be nearly 300 paragraphs.  How much longer is this cross-examination going on?  On my calculations you've been cross-examining now for at least two and a half hours.

   [COUNSEL FOR THE MOTHER]:  Your Honour the rest of the affidavit will go very quickly.

   HIS HONOUR:  How much longer are you going to be cross-examining?  I want some time limit on this.  I mean you obviously think the questions being asked on this affidavit are important.  I don't see them as very important to the ultimate dispute between the parties.  You have your instructions but I want a time.  How much longer?

   [COUNSEL FOR THE MOTHER]: I will limit to half an hour, your Honour.

   HIS HONOUR:  Sorry?

   [COUNSEL FOR THE MOTHER]:  I will limit the rest of it to a half an hour.

   HIS HONOUR:  All right, we'll take a break now.  We’ll resume at quarter past and at quarter to three I'll remind you your half hour is concluded and we'll see what the position is then.

   [COUNSEL FOR THE MOTHER]: Yes, your Honour.

6. As it transpired, his Honour did not need to remind counsel for the mother of her earlier assurance, as she concluded her cross-examination shortly prior to 2.45 pm.

7. The supplementary submissions of counsel for the mother went on to draw attention to later occasions when there was again interchange between the trial Judge and counsel for the mother concerning the length of cross-examination.  What was not made clear was that this occurred in a totally different part of the trial to that which we have just discussed.  As we have noted earlier, the proceedings were not completed in December 2008, and did not resume until more than 12 months later, by which time there was further material on which to cross-examine. 

8. The cross-examination of the father by counsel for the mother in this part of the trial commenced on 11 December 2009 at 11.22 am.  After sufficient questions had been asked to occupy 20 pages of transcript his Honour asked: 

   [Counsel for the mother], just while you’re drawing breath there for a minute, how much longer are you going to be in cross-examination of the father? 

9. Counsel for the mother failed to mention the response his Honour was given, but the response was clear enough, “Perhaps another hour, your Honour”. 

10. After further exchanges about the length of cross-examination of another witness to follow, his Honour then said to counsel for the mother:

    You can have until 1 o’clock with the cross-examination of the witness.  I think that is more than ample. 

11. Counsel for the mother made no protest about this limitation.  There then followed sufficient questions and answers to occupy some 11 pages of transcript, at which stage the following was said:  

    HIS HONOUR:  Right, we are well past 1 o'clock. I don't know whether you have noticed this, [counsel for the mother], but it's now - you know, it's seven minutes past.  Were you just proposing to keep asking questions until I stopped you, or what was the story?

    [COUNSEL FOR THE MOTHER]:  Your Honour - - ­

    HIS HONOUR:  Right, well, I will leave you to direct this.  We will take an adjournment now.  We will resume at 2.15.

12. The Court was then adjourned at 1.08 pm.

13. In her supplementary submissions, counsel for the mother recited what she claimed occurred after the lunch adjournment on 11 December 2009, when counsel began to ask further questions of the father.  The supplementary submissions did not accurately recite the exchange, which we now set out below:

    [COUNSEL FOR THE MOTHER]:  [The father], you gave an answer earlier that you took photographs of [the child] ---

    HIS HONOUR:  What's happening now?

    [COUNSEL FOR THE MOTHER]:  Well, your Honour, I ---

    HIS HONOUR:  It sounds like you're asking questions.

    [COUNSEL FOR THE MOTHER]:  Yes, your Honour, I have some ---

    HIS HONOUR:  Did I give you permission to do that?  Didn't we say that your cross-examination was to finish at lunch time?

    [COUNSEL FOR THE MOTHER]:  Yes, your Honour.

    HIS HONOUR:  Well, what's happening now?

    [COUNSEL FOR THE MOTHER]:  If your Honour restrains me or restricts me from asking any more questions then, I mean, you haven't ---

    HIS HONOUR:  Well, you tell me.  In the previous hearing you cross-examined this gentleman for a lengthy period of time.  Nobody stopped you; you got to the end; you finished.  Now, it seems to me that the questions you're asking now are going back over territory that was - predated that hearing.  Isn't that right?

    [COUNSEL FOR THE MOTHER]:  Well, your Honour, this - these questions relate to material that has been produced in the last week from the hospital, and it relates to the incident, the trike accident, versus the allegation that there may have been an assault by the father on the child.

14. Counsel for the mother, in her supplementary submissions, accurately recorded that at this point counsel for the mother had been endeavouring to ask further questions of the father about injuries sustained by the child.  Clearly this was a matter of importance, and not a subject in relation to which questioning would be curtailed other than for good reason.  However, what counsel for the mother failed to acknowledge was that there then followed a lengthy exchange, during which his Honour required counsel to state the topics on which she required further time to cross-examine.  (Transcript, 11 December 2009, pages 46 to 49). 

15. At the end of that exchange, the trial Judge said to counsel for the mother, “Yes, righto.  Off you go”, whereupon counsel for the mother resumed her cross-examination – beginning with questions about the injuries sustained by the child.    It is true that during the questions that followed (occupying about eight pages of transcript) his Honour expressed exasperation with counsel for the mother, suggesting that she might get herself “organised”, but the questions continued until counsel for the mother announced (at 2.56 pm) that she had no further questions.

16. Having provided the highly selective transcript references to which we have referred, counsel for the mother asserted that:

    It appears from the transcript that Counsel for the mother was allowed to cross examine the father for four or five hours, with many interventions by the Judge, and objections to her questions of his own motion.  The mother was cross-examined by counsel for the father, counsel for the Independent Childrens Lawyer and by the learned judge for more than four days, including cross examination for days about her sexual history and history of being abused.  It appears that the father was cross examined as to his violence for less than an hour.

17. We accept that the mother was cross-examined for much longer than the father.  There is no rule, however, that a fair trial requires each party to be cross-examined for the same length of time.  Given the nature of the allegations the mother was making, it is not at all surprising that her cross-examination took much longer (see for example her assertions about the father stalking her by helicopter at transcript, 5 May 2010, page 72 and following).  What is of significance, as our citations from the transcript demonstrate, is that counsel for the mother was allowed to cross-examine the father until she announced she had no further questions.  It is true that his Honour encouraged counsel for the mother to complete her questions within time limits, but these limits were not arbitrarily imposed, but rather were made by reference to the times counsel herself had said she needed.

18. It may also be true, as was asserted by counsel for the mother, that “the father was cross-examined as to his violence for less than an hour”.  However, the mother was represented by counsel when the father was cross-examined and we were not taken to any part of the transcript to demonstrate any restriction was imposed by his Honour on this part of the cross-examination.  Nor were we given a transcript reference to establish the complaint contained in the Summary of Argument that the trial Judge “prevented Counsel for the [mother] from questioning the expert on the father’s violence”. 

Disparaging remarks made by the trial Judge

1. It was further asserted in the supplementary submissions that “over the course of the hearing whilst the mother was represented the judge constantly made disparaging or derisory remarks to Counsel for the mother”.  Seven examples were given, all of which were directed to the competence of the mother’s then counsel, none of which were directed toward the mother herself.   Save in one instance, no effort was made to show that any of his Honour’s complaints about the competence of counsel were unwarranted. 

2. The one instance where an attempt was made to show that his Honour’s criticism was unwarranted concerned his ruling that he would not allow a question because the father had three times said he would need to see a letter about which he was being cross-examined because he could not recall the contents.  His Honour said this in making his ruling:

   I reject that question.  The witness has asked you now three times can he look at the letter.  You haven’t allowed him.  So I won’t allow you to ask questions like that based on the letter which he can’t confirm the contents of.  Basic advocacy, [counsel for the mother].  Yes.

3. Counsel for the mother, in her supplementary submissions, took issue with his Honour’s ruling, arguing that:

   …a document doesn’t have to be shown before its cross examined on if it put as a prior inconsistent statement, pursuant to s.43 Evidence Act.

4. We make a number of observations about this.

5. First, the transcript reveals that the father had, in fact, already been shown the letter in question, albeit it seems he was not given an opportunity to read the document. (Transcript, 11 December 2009, page 30, line 32).

6. Secondly, his Honour stopped the line of questioning only after the witness had repeatedly said that he did not recall the contents of the letter and would need to read it in order to be able to answer the questions being asked.

7. Thirdly, when his Honour indicated he would not allow the question, counsel for the mother did not seek to challenge the ruling by drawing attention to s 41 of the Evidence Act, but rather immediately withdrew the question; put the letter to the witness; sought to tender it and then proceeded with her cross-examination. (Transcript, 11 December 2009, page 34).

8. Fourthly, after the letter had been put to the witness and tendered, counsel did not again seek to ask the question she had been stopped from asking.  Nothing said by his Honour could have been interpreted as suggesting that she was unable to ask the question once the witness had been given an opportunity to look at the letter.   No submission was made to persuade us that the mother lost any forensic advantage as a result of his Honour’s insistence that the letter be shown to the witness prior to further questions being asked.  

Failure to account for the mother being “tired”

1. The next complaint made in the supplementary submissions was that at the conclusion of two days of cross-examination in May 2010, the mother was tired and said so.  No transcript reference was provided for this, but our own examination of the transcript confirms that at one point on 6 May 2010 (transcript, page 48) the mother did say she was “getting tired”. In fact, shortly prior to this remark being made his Honour himself said to the mother:

   [Counsel for the mother], you’re being rude.  You’re being uncooperative.  I realise that you might be frustrated and tired but it doesn’t help…  

2. In any event, it was submitted that as a result of being tired the mother “made some errors in answering questions she had answered the day before” and that “the Judge later held her answers at this point in her cross-examination by himself against her as to the adequacy of her memory”.  However, as will be seen from our earlier recitation from paragraphs 102 and 103 of the reasons, it was the mother herself who explained to the trial Judge that the inconsistencies in her evidence were referrable to her problems with memory and her tendency to make up answers to questions.

3. As an associated submission it was suggested that the questions put to the mother in this part of the trial were “objectionable on the grounds that they were repetitive, had the mother been represented”.  There is no absolute rule that questions asked on one day of the trial cannot be asked again on another day, especially in circumstances where it is asserted that the memory of a witness is unreliable.   

The trial Judge taking over the conduct of the proceedings

1. It was further submitted by counsel for the mother that the trial Judge “took over questioning from both the ICL and Counsel for the mother [sic]”, to the extent that at one point the Independent Children's Lawyer had allegedly said “Your Honour has taken all my questions”.

2. In fact, the transcript reveals that counsel for the Independent Children’s Lawyer had said “You took most of my questions though, your Honour”.  The transcript further reveals that counsel for the Independent Children's Lawyer had enough questions left for the balance of her cross-examination to occupy some nine pages of transcript. 

The trial Judge being selective in his treatment of the evidence

1. It was also submitted that the trial Judge had been “selective about what evidence he accepted” and that “he ignored those parts of the experts evidence which showed concern about the father’s violence and accepted those parts which reflected adversely on the mother and thus fell into error”.  No particulars were provided of these complaints. 

2. We would have thought it is an essential function of a judge to be “selective” in determining which evidence is to be accepted.  More fundamentally, the complaint fails to appreciate that the experts gave their evidence in a way which acknowledged that their assessments would change, depending upon which view of the evidence was accepted by the trial Judge.  If the trial Judge had accepted the mother’s evidence then he would have been obliged to take into account those parts of the expert reports that favoured the mother’s case.  However, his Honour determined, as was open to him, that the father’s evidence was generally to be preferred.  As his Honour pointed out on many occasion in his reasons, this finding had a critical impact on which part of the expert evidence he would accept.

Failure to give advice to the mother

1. Counsel for the mother complained, in her supplementary submissions, about the failure of the trial Judge to advise the mother of the consequences of the maternal grandmother not being available to be cross-examined. 

2. Reference to the transcript demonstrates that his Honour was prepared to allow the maternal grandmother to be cross-examined by telephone, but when the time came for her to be called, the mother was unable to provide a telephone number on which she could be reached.  It is difficult to see what his Honour could do in the circumstances given that this happened on the last day of the trial.   

3. In any event, the trial Judge did not accept the submission of counsel for the father that the grandmother’s affidavit should not be taken into account because she was not available for cross-examination.  His Honour recorded the grandmother’s evidence in his reasons and said, at paragraph 1078, that “for the purpose of this exercise I will take her evidence into account as supportive of the mother’s case on this issue”. 

4. Nothing advanced on behalf of the mother persuades us there was any denial of procedural fairness in the course of this difficult trial, nor was the mother given anything other than an impartial hearing.  There is therefore no merit in Ground 6. 

Outcome and costs

1. There being no demonstrated merit in any of the grounds, the appeal will be dismissed.

2. We took costs submissions at the conclusion of the oral hearing.  Counsel for the father and the Independent Children’s Lawyer both sought an order for costs against the mother in the event that the appeal failed.  The mother opposed the making of such an order.

3. We were provided with some limited information concerning the financial circumstances of the parties.  The husband was said to be earning $200,000 a year, and the mother, who had recently returned to employment, was said to be earning about $60,000 a year.  Neither party was said to have any assets.

4. There are circumstances justifying the making of a costs order against the mother given that her appeal was entirely unsuccessful (s 117(2A)(e)).  Furthermore, as was pointed out by counsel for the father, the mother was given an option by the trial Judge to return to court to seek a variation of the orders provided that she undertook the course of counselling recommended.  The mother elected not to follow that course, and instead chose to appeal (s 117(2A)(c) and s 117(2A)(g)). 

1. Notwithstanding her financial circumstances, we consider the mother should pay the costs of the appeal of both the father and the Independent Children’s Lawyer.   This order would include the costs previously reserved.

I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Thackray & Ainslie-Wallace JJ) delivered on 3 February 2012.

Associate:

Date: 3 February 2012