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FAMILY COURT OF AUSTRALIA SUMMERBY & CADOGEN [2011] FamCAFC 205

FAMILY LAW APPEAL CHILDREN With whom a child lives, spends time and communicates where the orders of the Federal Magistrate terminated all contact between the child and the father where it was asserted that the Federal Magistrate erred in stating his conclusion before evaluating the evidence and considering the relevant statutory provisions where it was asserted that the Federal Magistrate failed to consider Family Law Act 1975 (Cth) s 60CC factors where it was asserted that the Federal Magistrate did not have sufficient regard to the benefit to the child of having a meaningful relationship with both parents; erred in finding the relationship between the child and the father was superficial; and failed to consider the long term effects of such orders or of the other options for the child to maintain a relationship with the father where it was asserted that the Federal Magistrate failed to provide adequate reasons for his decision where it was apparent from the Federal Magistrates reasons for judgment that he was aware of his obligations to consider all these matters and did so in detail no merit found in any of these grounds of appeal. FAMILY LAW APPEAL CHILDREN Family Consultants where it was asserted that the Federal Magistrate failed to give appropriate weight to the recommendations of the Family Consultant the Full Court found the Federal Magistrate was not obliged to accept the Family Consultants recommendations and gave clear reasons for not doing so no appealable error found. FAMILY LAW APPEAL PROCEDURE Contravention of Court order where it was asserted that the Federal Magistrate erred in failing to hear contravention applications prior to the conclusion of the parenting proceedings where it was conceded by Counsel for the father that at no stage during the proceedings did those representing the father ask the Federal Magistrate to hear the contravention applications prior to the determination of the substantive proceedings no appealable error found. FAMILY LAW APPEAL CONTRAVENTION where it was asserted that the Federal Magistrate failed to impose appropriate sanctions against the mother where no specific submissions were made by those representing the father as to what would have been an appropriate penalty where the Federal Magistrate considered the penalty options available and gave reasons as to why none of them were appropriate no appealable error found. Family Law Act 1975 (Cth) s 60B, s 60CC Family Law Rules 2004 (Cth) r 21.05 Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 Fox v Percy (2003) 214 CLR 118

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Hall and Hall (1979) FLC 90-713 House v The King (1936) 55 CLR 499 Starr & Duggan [2009] FamCAFC 115 Taylor and Barker (2007) FLC 93-345 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 APPELLANT: RESPONDENT: INDEPENDENT CHILDRENS LAWYER: FILE NUMBER: APPEAL NUMBERS: Mr Summerby Ms Cadogen Legal Aid Queensland BRC NA NA 3171 37 38 of of of 2007 2010 2010

DATE DELIVERED: PLACE DELIVERED: PLACE HEARD: JUDGMENT OF: HEARING DATE:

20 October 2011 Sydney Brisbane Thackray, Strickland & Young JJ 30 May 2011

LOWER COURT JURISDICTION: LOWER COURT JUDGMENT DATE: LOWER COURT MNC:

Federal Magistrates Court 12 February 2010 & 15 February 2010 [2010] FMCAfam 109

REPRESENTATION COUNSEL FOR THE APPELLANT: SOLICITOR FOR THE APPELLANT:


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Ms McMillan SC DK Law
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COUNSEL FOR THE RESPONDENT: SOLICITOR FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER:

Mr Page SC & Mr Cameron Smithson Solicitors Mr Selfridge Legal Aid Queensland

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ORDERS
(1) The appeals against the orders made by Federal Magistrate Wilson on 12 February 2010 and 15 February 2010 be dismissed. There be no order for costs.

(2)

IT IS NOTED that publication of this judgment under the pseudonym Summerby & Cadogen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE Appeal Numbers: NA 37 of 2010 and NA 38 of 2010 File Number: BRC 3171 of 2007 Mr Summerby Applicant And Ms Cadogen Respondent And Independent Childrens Lawyer

REASONS FOR JUDGMENT


Introduction

1.

This is an appeal by Mr Summerby (the father) against orders made by Federal Magistrate Wilson on 12 February 2010, the effect of which was that the father would have no further contact with his five year old daughter. The appeal is opposed by the respondent in the appeal, Ms Cadogen (the mother), but supported by the Independent Childrens Lawyer.

Background

2. 3. 4.

The following background facts are drawn from the Federal Magistrates reasons and from uncontroversial material in the Appeal Books. The parties met in Taiwan in July 2002 and commenced cohabitation shortly thereafter. They were married in October 2002. There was one child of the marriage, A (the child), born in early 2004. The mother has three children from a previous marriage, all of whom live in Taiwan with their father. The father has one adult child of a previous marriage. The parties took up residence in Australia in late 2005, following the fathers release from rehabilitation in Taiwan after his arrest on drug charges.

5.

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6.

On 8 February 2007, the father denied the mother entry to their home. The mother and the child then took up residence in the home of a male friend, with whom the mother commenced a relationship. On 14 March 2007, the father filed an application in the Federal Magistrates Court, seeking orders for equal shared parental responsibility, and for contact with the child on three days a week and half of school holidays. On 17 May 2007, orders were made for the father to spend time with the child on the first three weekends of each month. There appears to have been compliance with that order. (Appeal Book 367). On 17 September 2007, Federal Magistrate Wilson conducted the first day of what was eventually to become a 14 day trial, spread over more than two years. On 6 October 2007, the father took the child to a local hospital, claiming she had been sexually abused by the mothers partner. The Federal Magistrate described this as having a cataclysmic effect on the parents attitude to each other and on their conduct of these proceedings. His Honour ultimately found the child had not been abused, and there is no appeal against that finding. The mother began withholding the child from the father after the visit to the hospital, which in turn led to the father filing a contravention application, which was made returnable on 17 December 2007 (the first contravention application). On 17 December 2007, the parenting proceedings were reopened and interim orders were made. The first contravention application was stood over. The orders made on 17 December 2007 provided for the father to spend time with the child from 21 December to 26 December 2007, from 3 January to 7 January 2008 and from 17 January to 21 January 2008. The mother failed to make the child available on all of those occasions. On 9 January 2008, an officer of the Department of Communities (the Department), provided a report concerning the sexual abuse allegations. She concluded that the father appeared to have coached the child to make the allegations. The Department decided the child was at risk of emotional harm, given the childs ongoing exposure to her fathers destructive parenting practices. The Federal Magistrate accepted the officers evidence about why she thought [the child] was being truthful when she explained how and why her father had instructed her to lie about being touched by [the mothers partner]. On 29 January 2008, orders were made for the father to resume spending time with the child on three weekends a month. The orders also provided for telephone contact once a week. Although not apparent on the face of the record, senior counsel for the father advised us that these orders were made by consent.

7.

8.

9. 10.

11.

12. 13.

14.

15.

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16.

On 6 February 2008, the father filed another contravention application (the second contravention application). This dealt with the mothers failure to make the child available pursuant to the orders of 17 December 2007. The father spent time with the child in accordance with the orders of 29 January 2008, although the Federal Magistrate found this was not without some reluctance on the mothers part. The telephone contact did not occur. On 26 March 2008, the father filed a further contravention application dealing with the mothers failure to make the child available for telephone contact (the third contravention application). On 2 April 2008, the substantive trial resumed for a day. The evidence was not completed and the proceedings were again adjourned until August 2008. On 14 July 2008, the father filed another contravention application (the fourth contravention application). This application was not in the Appeal Books (nor were the second and third contravention applications). The trial resumed on 6 and 7 August 2008, but the matter was again not completed. The fathers fourth contravention application was dismissed on what the Federal Magistrate described as procedural grounds. The trial resumed for another day on 3 September 2008. evidence was completed and judgment was reserved. This time the

17.

18.

19. 20.

21.

22. 23. 24.

There were further interlocutory proceedings in December 2008/January 2009, the detail of which need not concern us. Whilst awaiting delivery of judgment, the father continued to harbour the belief that the child had been sexually abused by the mothers partner. In April 2009 he took her to counselling. During the counselling, the child made a disclosure of sexual abuse, which was reported to the Department. This in turn led to the child being interviewed on 22 April 2009. In the course of the interview, in response to leading questions, the child made a further disclosure of abuse, this time claiming it was her father, not her stepfather, who had abused her. On 5 May 2009, the Department applied to the local Magistrates Court for a child protection order for the child. An order was made, and remained in force from 26 June 2009 until 16 September 2009. On 8 July 2009, the father applied to reopen the proceedings before the Federal Magistrate, and on the following day the mother also sought to reopen. The next day the Department was invited to intervene, but declined to do so. Although the child was under the care of the Department, she had been placed with her mother. The mother had again terminated the fathers time with the child after the disclosure was made about the father having abused her, but the Department decided to allow the father supervised time with the child. The

25.

26.

27.

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mother objected to this and went into hiding. A warrant for her apprehension was threatened, and the father then resumed spending time with the child. 28. According to the chronology provided to us by the Independent Children's Lawyer, the protection proceedings in the Magistrates Court were stayed on 16 September 2009 on the basis that the Federal Magistrates Court was the more appropriate jurisdiction. On 1 October 2009, orders were made for the father to spend short, supervised periods with the child, twice weekly. Visits took place between 5 October 2009 and 23 October 2009, but there was no contact on 23, 26 and 30 October 2009, as the child said she did not wish to see her father. She said the same again when the mothers partner brought her for the visit on 2 November 2009, but on this occasion she did spend time with the father. That visit went very well. At the visits on 6, 9, 13 and 16 November 2009, the child again said she did not want to see the father, and it appears contact did not occur. The Federal Magistrate referred to statements made by the mother on these occasions, in the presence of the child, indicating that she was not supporting the visits. The trial was completed over seven hearing days in December 2009. On 21 December 2009, the Federal Magistrate made orders, pending delivery of judgment, for the child to spend time with the father under the supervision of Ms M, an experienced family consultant. At that stage, judgment was foreshadowed for the end of January 2010. During the course of the supervised visits, both parents (but more particularly the mother and [her partner]) behaved such that Ms [M] felt compelled to lodge a further Notification with the Department. The visits were then suspended. On 28 January 2010, the Independent Childrens Lawyer successfully applied to reopen the proceedings. Ms M gave evidence and was cross-examined. A representative of the Department appeared, but was unable to advise whether any action would be taken in relation to the notification. By the end of the proceedings, the father was seeking substantial and significant time with the child, essentially for extended weekends. His application for residence, made partway through the proceedings, was not pressed. The Independent Childrens Lawyer proposed only interim orders be made. On 12 February 2010, the Federal Magistrate delivered judgment and made the orders which are the subject of this appeal. The orders dealt with the parenting issues and the three remaining contravention applications. The parenting orders provided for the child to live with the mother, and for the mother to have sole parental responsibility. No provision was made for the father to spend time with the child.
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29.

30.

31.

32.

33.

34.

35.

36.

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37.

The first contravention application was dismissed. On the second contravention application, the Federal Magistrate found that the mother had contravened the orders of 17 December 2007 on three occasions, without reasonable excuse. In dealing with the third application, his Honour found that the mother had contravened the telephone contact order on seven occasions, again without reasonable excuse. The mother was ordered to pay the fathers costs of the second and third applications, but no other penalty was imposed. On 15 February 2010, the Federal Magistrate delivered supplementary reasons dealing with the mothers request for the release of the childs passport. His Honour noted that he had made an order for the mother to have parental responsibility, and on that basis ordered that the passport be released (the passport order).

38.

The Federal Magistrates reasons

39.

We do not propose to attempt to summarise all of the Federal Magistrates reasons, which extended over 90 pages. We will refer to the relevant parts of his Honours judgment as we deal with each of the grounds of appeal.

Appellate principles

40.

The appeal is against a discretionary judgment. The principles applicable to such appeals are discussed in House v The King (1936) 55 CLR 499 at 504505, and require no restatement. Many submissions in support of this appeal drew attention to outcomes that were open to the Federal Magistrate. Such arguments misconstrue the task of an appellate court. The test is not whether an alternative outcome was open, but rather whether the outcome ordered was not open. As Asquith LJ said in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345:
It is, of course, not enough for the [appellant] to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.

41.

The Notices of Appeal

42.

The father filed two Notices of Appeal on 12 March 2010. The first (NA 37/2010) dealt with the passport order. The second (NA 38/2010) challenged the parenting orders, but also challenged the passport order. The father filed an amended Notice in NA 38/2010 on 30 November 2010. This contained no reference to the passport order, although it did expand the

43.

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scope of the appeal by raising issues associated with the contravention applications. No reference was made in submissions to the passport order and we therefore propose to treat NA 37/2010 as having been abandoned. 44. It is important to note there was no challenge to any finding of fact. Indeed, senior counsel for the father properly conceded that the Federal Magistrate was very careful when making his findings. We will discuss the Grounds of Appeal in the order in which they appear in the amended Notice, save that we will defer discussion of Grounds 2 and 3 until the end of our reasons, as they deal with the contraventions.

45.

Grounds 1 and 4 - failure to follow the legislative pathway and to consider the objects and principles of the legislation.

46.

Ground 1 asserts that the Federal Magistrate erred in failing to follow the legislative pathway, and in failing to properly address the objects and mandatory considerations applicable to parenting proceedings. Ground 4 is an associated complaint, as it asserts that the Federal Magistrate failed to consider the objects and principles as proscribed [sic] by s 60B of the Family Law Act. It was submitted in support of Ground 1 that the Federal Magistrate did not follow the guidelines said to have been laid down by this Court in Taylor and Barker (2007) FLC 93-345 and Starr & Duggan [2009] FamCAFC 115. This error is said to have arisen from his Honour having stated his conclusion before evaluating the evidence and considering s 60B (which sets out the objects and principles of Part VII of the Family Law Act 1975 (Cth) (the Act)) and s 60CC (which sets out the factors a court must consider in determining what order is in the childs best interests). Senior counsel for the father noted that observations had been made in Taylor and Barker concerning the order in which the relevant provisions of Part VII should be considered. She drew attention in particular to the following paragraphs of the reasons of Bryant CJ and Finn J (our emphasis added):
62. The legislation gives no express direction or guidance on this issue. However given that the concept of the childs best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC (1) provides that in determining what is in the childs best interests, the Court must consider the matters set out in subsection (2) (primary consideration) and subsection (3) (additional considerations) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject childs best interests.
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47.

48.

49.

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63.

We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.

50.

Senior counsel for the father also drew our attention to Starr & Duggan where the Full Court (Boland, Thackray and Watts JJ) had noted that various decisions had set out a framework which a judicial officer may follow when determining applications for parenting orders. Senior counsel for the father noted that the Full Court had gone on to say (our emphasis added):
38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to: first make findings concerning the relevant s 60CC factors; then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the childs best interests; and then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) which may be done by referring back to the earlier s 60CC findings.

51.

Senior counsel for the father submitted that the purpose of the various considerations in s 60CC is to direct a court as to how a decision is to be arrived at about the subject childrens best interests, and that those considerations are signposts or touchstones within which the broad inquiry as to best interests must be conducted. It was therefore submitted that it was logical to commence the application of the statutory process by examining and making findings about those matters specific to the best interests of these children specific to the circumstances in which they find themselves and that the findings then inform the mandatory statutory exercise. It was submitted that the Federal Magistrate had reversed the guidelines laid down in the authorities mentioned, and had erred almost from the outset by a process of stating his ultimate conclusion, evaluating the evidence and latterly the s60B and s60CC provisions through that prism. In her oral submissions, senior counsel for the father insisted that complaints about his Honours judgment went to matters of substance and form. She submitted that by setting out his ultimate conclusion near commencement of his reasons, the Federal Magistrate had closed off consideration the very issues he was required to determine pursuant to the not the for the

52.

53.

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legislation. She suggested that what his Honour had done, in effect, was reverse engineeredthe whole process. 54. 55. There is no merit in these propositions, as we will demonstrate by reference to the Federal Magistrates judgment. His Honour identified at the outset of his reasons his obligation to treat the childs best interests as the paramount consideration. Citing High Court authority, he observed that best interests are values, not facts, and noted that best interests must be judged according to the facts and circumstances of each individual case. Importantly, and aptly, his Honour also recorded that the choice in parenting cases is often between alternatives, both of which are less than optimal. Having then outlined the course of the litigation, and some of the more important background facts, his Honour said:
22. I am mindful of the observations of McHugh JA in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 280 regarding the obligations of a trial judge to state the reasons for his decision. The reasons for my decision in this matter can be expressed very briefly, and I will do so shortly. However, because I am bound by authority to follow the statutory pathway prescribed in Part VII of the Act, and justify findings on the matters there required to be considered, so that my discretion ought be seen to have been exercised by reference to relevant considerations, these reasons are longer than I would have liked them to be. In this matter there were very many conflicts in the evidence between the parties not all of which it is necessary to resolve in order to reach a decision. I should add, however, for the sake of completeness, that I have read (in some cases on more than one occasion) an entire transcript of the evidence, and the voluminous affidavit evidence and exhibits relied upon by the parties. Simply because I may fail to mention a particular reference to evidence ought not to be taken as my having overlooked it. If every dispute between the parties were addressed these reasons would be very much longer than they are. Whilst reference to particular evidence or events is necessary, the disposition of this case depends, in my view, as to conclusions reached on the totality of the evidence, and having regard to the way in which the parties cases have been presented over an extended period of time. My essential reasons for the orders that I make are as follows: (a) (b) [The child] has a close and loving relationship with her mother, who is and has been her primary carer; [The child] has a good and loving relationship with her father;

56.

23.

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(c) (d)

[The child] has a good and loving relationship with the mothers partner; Neither the father nor [the mothers partner] has sexually abused nor inappropriately touched [the child], nor do either of those gentlemen constitute an unacceptable risk of physical harm to [the child]; There was family violence in the relationship between the mother and the father that rebuts the presumption in s.61DA(1) of the Act; Each of the father, the mother and [the mothers partner] have emotionally abused [the child]; The parents cannot co-parent [the child] without exposing her to further emotional abuse; It is not in [the childs] best interests to continue to expose her to emotional abuse; The expert evidence that I accept does not support a change in residence to the fathers primary care; The mother will not facilitate or support any relationship between [the child] and the father; On balance, the loss of the relationship with her father will be less harmful to [the child] than would be the loss of her relationship with her mother, or being regularly exposed to emotional abuse by both parents; In those circumstances, [the child] should live with her mother and not spend time nor communicate with her father.

(e)

(f) (g) (h) (i) (j) (k)

(l)

57.

The Federal Magistrate went on to record:


24. I am cognisant that the termination of a childs relationship with one of her parents is a course of last resort. This outcome is neither satisfying to the court nor edifying of either party. However, when [the childs] best interests are the focus, rather than the expectations or hopes of either parent, the conclusion reached is inevitable. It may be thought that the result arrived at demonstrates either an acceptance of the mothers position, or a surrender to her unreasonable refusal to permit a relationship between the child and her father. Neither of those conclusions is correct. Once it is accepted, as I do, that it is not in [the childs] best interests to live primarily with her father; and that because of the antipathy between the parents any form of shared parenting would expose [the child] to further emotional abuse, the court is really left with no alternative but to make the orders that I propose. The orders should not be seen as any vindication of the mothers actions.

25.

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58.

The Federal Magistrate then proceeded to discuss the credibility (or lack thereof) of the mother and the father, and of the mothers partner (paragraphs 26 to 28). He then identified the issues that had to be decided (paragraph 29) and subsidiary issues requiring consideration (paragraph 30). One of the three principal issues his Honour identified was whether any form of parenting orders can be devised so that [the child] can continue to spend time with both of her parents, without being exposed to emotional harm. His Honour recognised that each of the matters he identified as requiring decision had to be considered under the rubric of [the childs] best interests and he went on to say that, in determining what was in her best interests, he was required to consider the matters set out in s.60CC(2) and (3) of the Act informed by the principles and objects underlying Part VII of the Act set out in s.60B. (Reasons for judgment, paragraph 31). The Federal Magistrate then recited at length the legal principles to be applied when dealing with sexual abuse allegations (with which no issue is taken in this appeal). His Honour next dealt with all of the relevant evidence relating to the allegations of sexual abuse, before considering other evidence he considered relevant in determining what orders would be in the childs best interests. In doing so, he paid particular attention to the expert evidence of Dr H, a psychiatrist, and of the Family Consultant, Ms Q. This overview of the Federal Magistrates 90 page judgment reveals that he approached his task with great care, and attention to the legislation. Clearly, however, his Honour was cognisant of the fact his reasons were very lengthy. Accordingly, for the assistance of the reader, his Honour skilfully encapsulated, in the first 10 pages, the most important facts and the reasons for his decision. Reasons for judgment are to be considered as a whole and not dissected, paragraph by paragraph, as if they were a work in progress. We can see nothing in paragraph 22 of his reasons to suggest that the Federal Magistrate had arrived at a preconceived conclusion and then went on to consider the matters in the Act only to justify that conclusion. Instead, his Honours remarks demonstrate an acknowledgement of the obligations to give reasons and to follow the statutory pathway. Paragraph 23 can then be seen as no more than the Executive Summary of the reasons that follow. Ground 4 focuses on the objects and principles contained in s 60B. The two most important, for present purposes, are those in s 60B(1)(a) and (b), which provide as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to

59.

60.

61.

62.

63.

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the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

65.

No argument was developed to explain how the Federal Magistrate failed to consider the objects and principles in s 60B. Certainly, his Honour was fully aware of his obligation to consider these matters, because he expressly recorded that in considering the matters in s 60CC he was obliged to do so informed by the principles and objects underlying Part VII of the Act set out in s.60B. We should also observe that his Honour, at paragraph 38, set out a lengthy extract from W and W (Abuse allegations: unacceptable risk) (2005) FLC 93235, which his Honour accepted as a correct statement of the law. In that extract, the following was said by the Full Court:
112. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a childs best interests.

66.

67.

Examination of the Federal Magistrates reasons indicates that not only was he aware of his obligation to have regard to the objects and principles, but that he discussed, and indeed agonised over them. Ultimately, however, he recognised that one object or principle cannot be determinative when that objective can only be achieved at the expense of another. His Honour concluded that the desirability of the child having a meaningful relationship with both parents must give way to the desirability of protecting her from abuse or harm. Whilst the Act (at least in its present form) does not afford precedence to any one of the objects, it could not be suggested that his Honour erred in deciding that protection of a child from abuse or harm was the highest priority. For these reasons, we conclude there is no merit in Grounds 1 and 4.

68.

Ground 5 - failure to have sufficient regard to the benefit to the child of having a meaningful relationship with both parents.

69.

By this ground it was asserted that the Federal Magistrate failed to give any or sufficient regard to the primary consideration of the benefit to the child of having a meaningful relationship with both parents. Section 60CC(2) provides two primary considerations, which the Court must take into account in determining what is in a childs best interests. These echo the objects in s 60B which we have just discussed. The considerations are:

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(a) (b)

the benefit to the child of having a meaningful relationship with both of the childs parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

71.

There can be no doubt that his Honour understood his obligation to have regard to the benefit to the child of having a meaningful relationship with both parents. This appears from the following paragraph of his reasons:
225. I turn then to s.60CC(2) and (3) of the Act and recognise that it is an object of Part VII of the Act to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interest of the child (s.60B(1)(a)) and that it is a principle underlying Part VII of the Act that children have a right to spend time on a regular basis with and communicate on a regular basis with both of their parents (s.60B(2)(b)). Both of these matters are contingent upon them being in the best interests of the child concerned.

72.

His Honour went on, properly in our view, to say:


226. In this case the two pillars that are the primary considerations set out in s.60CC(2) of the Act pull in opposite directions. On the one hand, it would be of benefit to [the child] to continue to have a meaningful relationship with her father as well as her mother. However, I find that if [the child] continues to have a relationship with her father she will be exposed to emotional abuse by both parents and by [the mothers partner]. Section 60CC(2)(b) of the Act requires the court to fashion orders to protect the child from those matters.

73.

His Honour then went on to discuss questions concerning the relative importance of the two primary considerations, and the issues faced by a court in circumstances where the only way in which a meaningful relationship can be achieved appears to be by exposing the child to harm. (Reasons for judgment, paragraph 227). The Federal Magistrate described how he had endeavoured to reconcile the two primary considerations. In doing so his Honour said:
229. I have wrestled with devising some form of order that would see [the child] spend time with her father on a periodic basis, with changeovers occurring at some neutral place such as a contact centre. However, I conclude that such a regime would not work and in fact would inflict further emotional harm on [the child].

74.

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75.

In our view, his Honours discussion of the dilemma with which he was faced makes manifest that he had full regard to the importance to the child of having a meaningful relationship with both parents. However, faced with his findings that continuation of a meaningful relationship with the father would result in ongoing emotional abuse of the child; that alternative forms of order would not work; and that it was not in the childs best interests to live with the father, his Honour decided to terminate contact. In our view not only was that decision open to him, on the basis of his findings it was arguably the only available decision as his Honour said in paragraph 25 of his reasons.

Ground 6 failure to consider s 60CC factors

76.

This ground asserts that the Federal Magistrate failed to give any or any proper consideration or [sic] to the best interests of the child in accordance with the primary and additional considerations in s 60CC. Specific complaint was made about the alleged failure to give proper, or any, consideration to the following matters: The benefit to the child of a meaningful relationship with both parents (s 60CC(2)(a))

77.

This is the same complaint as in Ground 5 and therefore suffers the same fate. The nature of each parents relationship with the child (s 60 CC(3)(b))

78. 79.

Part of the complaint made under this heading relates to the more specific complaint in Ground 7 and will be discussed there. The other part of the complaint identified in the submissions relates to the alleged failure of the Federal Magistrate to address the features of the mothers relationship with the child. No particulars were given as to the features of the relationship that should have been addressed. Furthermore, it was acknowledged in the fathers written submissions that his Honours judgment is literally peppered with findings of the mothers deleterious and damaging conduct toward the child. Ultimately, however, his Honour found that [the child] has a close and loving relationship with her mother, who is and has been her primary carer. There is no challenge to that finding, and indeed the father was not pressing for any outcome other than one in which the child would reside predominantly with her mother. The likely effect of any separation of the child from the father on a permanent basis; s 60CC(3)(d)(i)

80.

This is essentially the same complaint as in Ground 8 and will be discussed when we come to consider that complaint.

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The parents capacity to provide for the needs of the child; s 60CC(3)(f) 81. In support of this contention it was submitted that the Federal Magistrate failed to undertake a proper evaluation of the mothers capacity as a parent when Dr [Hs] opinion raised significant concerns. We note, however, that in paragraph 139, the Federal Magistrate recorded that the father had told the Family Consultant, Ms Q, that there were no problems in the parenting of [the child], except that the mother refuses to communicate with him. We note also that the Federal Magistrate recorded, at paragraph 136, the fathers evidence that he had only applied for residence because it had been suggested by the Independent Childrens Lawyer. His Honour also found that no thought seems to have been given by the father to the minutiae of his long term primary care of [the child] and that no evidence was put forward of his proposals in that regard. The mothers capacity to provide for the childs needs would seem to have been conceded by the father in what he told the Family Consultant and in his failure to press his application for residence. In any event, we were unable to discern in the submissions any reason why the mothers failings as a parent should have provided support to the fathers application to spend time with the child. On the contrary, it would seem that the concerns his Honour did express about the mother were foremost in his mind when deciding why an ongoing contact regime would not work and would be contrary to the childs best interests. The failure by the mother and her willingness to facilitate time between the child and the father given the mothers failure to provide a reasonable excuse to the proved contravention applications; s 60CC(3)(c) and 4(b) 84. It was the Federal Magistrates firmly expressed view that the mother will not facilitate a relationship between the father and [the child], even for alternate weekends, and will actively try and destroy the relationship, even if court orders are made. (Reasons for judgment, paragraph 150). Far from not giving any, or any proper consideration, to this factor, this finding can be seen as one of the key reasons the Federal Magistrate decided not to make any order for the father to have time with the child. His Honour was, however, careful to make clear that, in relying on this factor, he was not to be seen as accepting her position or surrender[ing] to her unreasonable refusal to permit a relationship between the child and her father. (Reasons for judgment, paragraph 25). His Honours level of concern about the mothers intransigence was such that he even turned his mind to removing the child from her care, as can be seen from the following:

82.

83.

85.

86.

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228.

Each of the experts opines that [the child] ought not be placed in the primary care of her father. That removes an important option for the court. In a number of cases where the court has concluded that one parent alienates or attempts to destroy the relationship between the child and the other parent, a change of residency has been ordered. However, based on the expert evidence, that option is not open in this case. It would cause [the child] significant emotional harm.

87.

There is no appeal against his Honours finding that a change of residence would cause the child significant emotional harm, or against another finding that a change of residence would have devastating consequences. His Honour had to reach his decision knowing that the option of a change of residence was not open. Unpalatable as it clearly was, his Honour therefore had to take account of the fact that the childs primary carer would actively try and destroy the relationship with the other parent if contact was ordered. Given the emotional abuse to which he found the child would be exposed in such circumstances, we consider his Honour was right not to take into account the conduct of the mother to any greater extent than he did.

Ground 7 error in finding the relationship between the child and father was a superficial one.

88.

This ground arises from the following paragraph of the Federal Magistrates reasons (the finding sought to be impugned is emphasised):
228. [The child] plainly enjoys spending time with her father. She has, for ten months, spent little time with him. When visits have been arranged, [the child] has on a number of occasions stated that she does not wish to spend time with her father. I find that that occurs because [the child] is embroiled in the dispute between the parents and knows that her mother does not want her to spend any time with the father. When [the child] is actually taken to spend time with her father she plainly enjoys it. However, given [the childs] age at the time the parties separated, and given the nature of the relationship between [the child] and the father since then, it is difficult to conclude that the relationship between [the child] and her father is other than a superficial one. In so concluding, I accept that during the time the parties lived together the father was involved in [the childs] day to day care and at times cared for [the child] by himself. However, I am cognisant of the evidence of the experts that there is an anxious quality to the relationship between [the child] and her father and that the father is emotionally manipulative of [the child] by demanding affection from her...

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89.

It was submitted that the finding that the relationship was only superficial was against the weight of the evidence, and contradicted other findings. In particular, it was noted that his Honour had found that: the father does have a meaningful relationship with his daughter (Reasons for judgment, paragraph 157); it would be of benefit to the child to continue to have a meaningful relationship with her father (Reasons for judgment, paragraph 226); reports about the time the child had recently spent with the father indicated they had a good relationship (Reasons for judgment, paragraph 158).

90.

We accept there may appear to be some contradiction in his Honour determining that it was difficult to conclude that the relationship between [the child] and her father is other than a superficial one, when he had also found they had a meaningful and good relationship. However, in our view, his Honour was doing no more than drawing attention to the fact that they had not been able to spend much time together, and that there were some problematic features of the dynamic, including the anxious quality of the relationship. We are not satisfied, however, that any perceived error in the description of the fathers current relationship with the child advances this appeal. His Honours judgment proceeded on the assumption that, whatever might be the state of the present relationship, the child would be able to enjoy a meaningful relationship with her father in the future if she was able to have regular contact with him. Notwithstanding that finding, his Honour nevertheless considered that the harm associated with the child maintaining (or achieving) such a relationship outweighed any benefit of that relationship.

91.

Ground 8 failure to consider the long term effects of denial of a relationship between the child and the father.

92.

This ground asserts that the Federal Magistrate failed to consider or properly consider the long term effects on the child of the denial of a meaningful relationship between the child and the Father. There is no merit in the suggestion that the Federal Magistrate failed to consider at all the long term effects on the child of not having a relationship with her father. In paragraph 238, his Honour expressly found that the cessation of the childs relationship with her father would be distressful in the short term, and may also be emotionally damaging for her in the longer term. The Federal Magistrate clearly accepted that the effect of a permanent separation would be the loss of the relationship, which would not be beneficial however, his Honour found this harm would be less than that which would be

93.

94.

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occasioned if contact orders were made. paragraph 23(k)). 95.

(Reasons for judgment,

It is to be borne in mind, as his Honour stressed, that the choice in parenting cases is often between alternatives, both of which are less than optimal. It is also noteworthy that he considered the termination of a childs relationship with one of her parents is a course of last resort, which indicates that his Honour was very much alive to the adverse impact of a permanent separation. There is no merit in this ground.

96.

Ground 9 failure to consider other options to maintain a relationship with the father.

97.

This ground asserts that the Federal Magistrate failed to consider or adequately consider other means of regulating or structuring the childs ongoing relationship with the Father as opposed to a complete denial of that relationship. We regard Ground 9 as encapsulating the primary complaint of the Independent Childrens Lawyer, which was that his Honour should not have made final orders, but instead should have made interim orders, as had been proposed by him at trial. The interim orders proposed were that the father spend unsupervised time with the child for a period of six months on each alternate weekend from Saturday morning to Sunday afternoon and for the following six months on each alternate weekend from Friday afternoon to Sunday afternoon. In addition, the father was to have one telephone call each week. The proposed orders required the mother to have her partner undertake all the transportation arrangements to ensure the handover of the child at a nominated contact centre. Injunctions were proposed restraining each of the parents from involving the child in any medical assessments, counselling or police investigations and from making any complaint to the Department (without the Independent Childrens Lawyers consent) and also from discussing in the presence of the child, or at all, the sexual abuse allegations. The Independent Childrens Lawyer proposed that both parents be required to attend upon a named psychologist for reportable counselling which could include the child at the discretion of the counsellor. Provision was made for a report to be obtained from the counsellor prior to the next hearing. The proposed orders provided that, upon the resumption of the hearing, consideration would be given to the possibility of increasing the time that the child spends with the father. The proceedings were otherwise to be adjourned until a date in about 12 months time, having been listed for mention and for

98.

99.

100.

101.

102.

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trial directions in about 10 months time. The proposed orders provided for liberty to either party to apply on 14 days notice. 103. Counsel for the Independent Childrens Lawyer submitted in support of the fathers appeal that these proposed interim orders were more appropriate and in [the childs] best interests notwithstanding the litigious nature of the proceedings thus far, in order to afford an opportunity for [the child] to spend time with her father free of the very allegations that were prevalent in the lead up to the trial(s). The submissions made in support of Ground 9 were essentially as follows: the Federal Magistrate had not considered all of the options discussed at trial to allow the father to maintain contact with the child; there was no basis upon which his Honour could reasonably conclude that the mother would not in future comply with orders in circumstances where she had never been dealt with for breaching orders, and there had been no earlier finding in relation to the controversial sexual abuse allegations; whilst there is some merit in the premise that past behaviours are good indicators of future behaviours, it leaves little/no scope for change in circumstances where the imposition of penalties for breaching the interim orders might have performed an educative function; the long delay in resolution of the matter gave rise to concerns that the Federal Magistrate had decided not to make interim orders because the proceedings had already dragged on for so long; the insidious pressure his Honour must have felt to conclude the matter (which was said to be demonstrated by the alacrity with which he delivered his reasons) was such that he had not taken the time to properly consider the issues; although Dr H had suggested that the matter could be reviewed when the child started school, no review mechanism had been included in the final orders, and thus there is nothing left, in essence to agitate further till this child reaches 18. Theres no door left for a Rice v Asplund argument.; although the Federal Magistrate had expressed the hope that the mother would accommodate the childs wishes when she is old enough to articulate them, this was unrealistic given the mothers rigidity.

104.

105. 106.

We do not find merit in these submissions for the reasons that follow. The Federal Magistrate clearly did give consideration to other orders, apart from those he ultimately made. This can be seen by what his Honour said in paragraph 229 of his reasons. We have earlier cited part of what his Honour said in this paragraph, but we now set it out in full:

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229.

I have wrestled with devising some form of order that would see [the child] spend time with her father on a periodic basis, with changeovers occurring at some neutral place such as a contact centre. However, I conclude that such a regime would not work and in fact would inflict further emotional harm on [the child]. I reach that conclusion also cognisant of the fact that if the mother defies such orders, as she has stated she will do, the option of changing [the childs] residential parent is not a viable one. I have reached that conclusion because interim orders have been made on a fairly regular basis over the past almost three years and they have proved troublesome. Whenever one parent has the opportunity of criticising the other they do so and have run to the court for assistance. Most recently, with Ms [M], the mother demonstrated most emphatically that she was not supportive of [the child] having any relationship with her father. If orders were made that compel the mother to deliver [the child] to a contact centre to spend time with the father either on a supervised or unsupervised basis, I am convinced that [the child] would not attend such visits as has happened on repeated occasions during the past six or seven months.

107.

The only proposal for interim orders the Federal Magistrate had before him was that made by the Independent Childrens Lawyer. We note that neither the mother nor the father endorsed those orders at trial. This in itself did not auger well for their effective operation, given they involved both parents co-operating in their implementation, for example by being involved in counselling. It is noteworthy in this context that, during the proceedings, Dr H had recommended that both the mother and the father attend psychological therapy and a parenting course, but neither had done so. (Reasons for judgment, paragraph 119). The proposed interim orders also involved compliance with injunctions that would be almost impossible to enforce for example, the parties were to be restrained from discussing in the presence of the child, or at all, the allegations of sexual abuse. We observe in this regard that the Federal Magistrate found:
72. I could have no confidence that if [the father] spends further time with [the child] the father will not attempt to perpetuate the allegations that [the mothers partner] has acted inappropriately towards her. I find that the father will continue to involve [the child] in his belief that [the mothers partner] has acted inappropriately. That will cause [the child] emotional abuse.

108.

109.

Very significantly, the proposed orders also expressly provided for a continuation of litigation which had already been on foot for nearly three years. In this regard it is instructive to consider what his Honour said about this factor:

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242.

I want to make specific reference to the factor in s.60CC(3)(l) of the Act which reads: (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

243.

Consideration of this subsection is also relevant when dealing with the application made by the Independent Childrens Lawyer at the conclusion of the final hearing that the Court should make interim orders rather than final orders. The rationale behind the submission made on behalf of the Independent Childrens Lawyer is that it would be in [the childs] best interests for her to continue to spend time with her father. It is recognised by the Independent Childrens Lawyer that the mother is adverse [sic] to that occurring. Therefore it was submitted that orders should be made on an interim basis for [the child] to live with her mother and spend time with her father, and that the fathers time be unsupervised. The orders proposed by the Independent Childrens Lawyer were marked as exhibit 33. The rationale behind the orders was that the mother would have to comply with them otherwise there would be sanctions imposed by the court. That is, the mother would be forced to allow [the child] to spend time with her father, otherwise the Court would impose some sort of punishment for her disobedience. In my view, further interim orders are inappropriate in this case for four main reasons: a) b) The parties have been involved in this litigation for almost three years. It ought be brought to an end. The stress associated with being involved in the litigation has caused the parties attitudes to harden, and in some cases for their behaviour to become irrational. That is unlikely to be alleviated if further interim orders are made. The parties have shown an inability to comply with interim orders in the past on a number of occasions and there is nothing to suggest that either of their behaviours will change if further interim orders are made at this stage. Another, and compelling, reason why the Court is disinclined to make interim orders at this stage is the absence of any real sanction if either party behaves inappropriately whilst the further interim orders are in force. The past conduct of each party belies an ability of either of them to change so that, for example the father will become a suitable candidate to be residential parent, or the mother will begin to facilitate a relationship between [the child] and her father. If the mother disobeys Court orders, and the Court is not willing to change the primary residence of the child, what then is the point of further interim orders.

244.

c)

d)

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245.

In the circumstances, I do not consider it is in the best interests of [the child] to maintain these proceedings by the making of interim orders. It is always open to either parent to apply again to the court for parenting orders subject to demonstrating that it is [the childs] best interests to vary the subsisting orders, and meeting the sorts of considerations outlined in decisions such as Rice & Asplund (1979) FLC 90-725. Therefore, in my view it appropriate to make orders that remove the real risk of further emotional abuse to [the child], which means that she should live with her mother, and spend no time with her father. Once [the child] reaches an age where she is able to articulate her wish to spend time with her father it is to be hoped that the mother will accommodate those wishes.

246.

110.

It will be seen from these paragraphs, and from what had earlier been said in paragraph 229 of the reasons, that his Honour did not consider any of the proposals made for the father to have time with the child would work. Importantly, he also considered that the order he proposed to make would remove what he found to be the real risk of further emotional abuse to the child. In our view, those conclusions were open to his Honour. It is not necessary to try every possible means of arranging contact before a judicial officer can properly conclude that further time spent between the parent and child will not be in the best interests of the child. It is important we acknowledge in this context the considerable advantage the Federal Magistrate had in reaching his decision. As his Honour pointed out, the way in which the proceedings had unfolded had given him:
the opportunity to observe the parties on more than one occasion in the witness box, and take account of how they have behaved between the various hearing days. It has also allowed the court to gain more than a passing impression of the parties. (Reasons for judgment, paragraph 6).

111.

112.

We agree with the Federal Magistrate that in parenting proceedings there can be much benefit to the presiding judicial officer in having the opportunity to observe the parties over an extended period. The opportunity afforded to his Honour gives greater reason for confidence in his prediction of the likely future behaviour of both parents. We accept this opportunity came at the expense of delay in resolution of the dispute, however, we are unable to discern from any of the material any reason to consider that his Honour felt under any pressure to conclude the proceedings merely for the sake of concluding them. Finally, we record that we are also mindful of what was said by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at 125, [23]:
[the appellate court] must, of necessity, observe the natural limitations that exist in the case of any appellate court proceeding

113.

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wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses credibility and of the feeling of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Footnotes omitted)
Ground 10 - failure to provide adequate reasons for the decision.

114.

Ground 10 asserts that the learned Federal Magistrate failed to provide any reasons or adequate reasons for his decision:
(a) (b) (c) to order the child should spend no time with the father; that the father was not a suitable residence parent; that the mother is more capable of providing for [the childs] emotional and intellectual needs.

115.

This complaint can be disposed of briefly as follows: (a) The Federal Magistrate gave detailed and clearly articulated reasons why [the child] should not spend time with the father. The process of reasoning is readily apparent and internally consistent. His Honour found, at paragraph 238, that the expert evidence was that the father is not capable of being [the childs] residential parent. Although that finding was challenged in submissions, it was not challenged by any ground of appeal. The Federal Magistrates stated reason for concluding the mother was better able to provide for [the childs] emotional and intellectual needs was his finding in relation to the nature of the relationship between [the child] and her father and the fathers emotional manipulation of her (Reasons for judgment, paragraph 240). It is true, as was noted by senior counsel for the father, that there was no mention in this context of the emotional abuse of the child by the mother and her partner. However, it is evident from consideration of the reasons as a whole that it was only the mother who was considered capable of providing for the childs needs.

(b)

(c)

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Ground 11 failure to give appropriate weight to the recommendations of the Family Consultant.

116.

This ground asserts that the Federal Magistrate erred in failing to give appropriate weight to the recommendations of the Family Consultant, and in failing to give adequate reasons for rejecting those recommendations. The Federal Magistrate described the Family Consultant as being highly experienced (paragraph 135). He set out at great length the relevant portions of her evidence and he also recited her recommendations (paragraphs 135 to 147). He explained, in paragraph 148, that he had:
set out these extracts from Ms [Qs] report at length because, although I ultimately do not adopt her conclusion, I consider she has otherwise given considerable thought to the dilemma posed by this case and identified the problems that confront the court.

117.

118.

His Honour then, in paragraphs 149 to 155, referred to those parts of the Family Consultants assessment with which he agreed, and the point at which his opinion differed from hers. He noted, when describing his point of departure, that he had had the benefit of all of the evidence in this matter, an advantage which was clearly denied the Family Consultant. In this regard it is important to recall what the Full Court said in Hall and Hall (1979) FLC 90-713 (at 78,819) about recommendations made by court counsellors:
[T]he counsellors assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

119.

The Federal Magistrate was not obliged to accept the Family Consultants recommendations. He gave clear reasons for not doing so. There is accordingly no merit in this ground.

Ground 2 failing to hear the contravention applications prior to conclusion of the parenting proceedings

120.

By this ground it is asserted that the Federal Magistrate erred in failing to hear and determine the outstanding contravention applications prior to the conclusion of the substantive parenting proceedings. It was submitted in support of this ground that the determination of contravention applications should occur in a reasonably expeditious manner. Reference was made in this regard to Rule 21.05 of the Family Law Rules 2004 which directs the Registry Manager, upon the filing of a contravention

121.

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application; to fix a date for a hearing that is as near as practicable to 14 days after the date of filing. 122. It was noted by senior counsel for the father that no explanation was given in the Federal Magistrates reasons why there had not been an expeditious hearing of the contravention applications. She submitted that this omission was brought into sharp relief by the finding made concerning the mothers views about the relationship between the father and child having become more rigid and inflexible over the period of the litigation. It was further submitted that the Federal Magistrate had artificially and erroneously restricted the options available to him in relation to the contraventions by determining the applications not only at the conclusion of the substantive proceedings but after the findings he had made at the outset of his judgment which included that there should be no provision for a relationship between the father and the child. Whilst we are aware that the Federal Magistrates Court lists matters consistent with the requirements of Rule 21.05 of the Family Law Rules 2004, that Court is not bound by it. In any event, listing the application does not say anything about when and how the hearing is to be completed. This will depend upon many factors, including the likely length of the hearing; the nature of any defence offered; and the extent to which the issues arising are linked to any pending substantive proceedings. It was conceded that at no stage did those representing the father ask his Honour to hear the contravention applications prior to determination of the substantive proceedings. In our view, that concession is fatal to this ground. Similarly, no request was ever made for the matter to be referred to another Federal Magistrate, which senior counsel for the father submitted to us would have been an option.

123.

124.

Ground 3 failure to impose appropriate sanctions

125.

By Ground 3, the father contends that the Federal Magistrate failed to impose appropriate sanctions against the mother; however, save for making reference to the possibility of a compensatory contact order; no specific submissions were made as to what would have been an appropriate penalty. His Honour set out what would reasonably be regarded as the available penalty options (paragraphs 268 to 274 and paragraph 292) and gave reasons why none of them were appropriate, save for an order for costs. In our view the decisions his Honour reached in relation to the imposition of penalty were open to him and this complaint must also fail.

126.

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Conclusion and costs 127. As we have found no merit in any of the grounds, Appeal NA 38/2010 will be dismissed. We think it proper, however, to record that our decision should not be interpreted as condoning the mothers conduct. We adopt the same view as his Honour expressed:
4. If it is kept uppermost in the consideration of what parenting orders to make, that [the childs] best interests are the paramount consideration, it is immediately apparent that parenting orders ought not be made to assuage concern about injustice to one parent or the other, nor to redress what may be perceived to be some unfairness in the outcome. Nor should parenting orders be made as a form of retribution or penalty against one parent for what might be regarded as unacceptable behaviour on that parents part, if otherwise the best interests of the child warrant that parent having the primary or sole care for the child.

128. 129.

Appeal NA 37/2010 will be dismissed on the basis we deem it abandoned. No orders for costs were sought, as both parties were legally aided.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Young JJ) delivered on 20 October 2011. Associate: Date: 20 October 2011

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