FAMILY LAW – APPEAL – CHILDREN – where the trial judge was found not to have erred in refusing to accept the evidence of one expert as to whether the child was at risk of abuse when living with the father, when a number of other experts were of the opinion that the child was not at risk of abuse from the father – where the trial judge was found not to have erred in ordering that the mother’s time with the child to be supervised on an indefinite basis – appeal dismissed.

[2012] FamCAFC 189  Coversheet and Orders Page 1
FAMILY COURT OF AUSTRALIA
LINDSAY & BAKER  [2012] FamCAFC 189
FAMILY LAW – APPEAL – CHILDREN – where the trial judge was found not to
have erred in refusing to accept the evidence of one expert as to whether the child
was at risk of abuse when living with the father, when a number of other experts were
of the opinion that the child was not at risk of abuse from the father – where the trial
judge was found not to have erred in ordering that the mother’s time with the child to
be supervised on an indefinite basis – appeal dismissed.
Family Law Act 1975 (Cth)
Champness & Hanson (2009) FLC 93-407
Rice & Asplund (1979) FLC 90-725
APPELLANT:  Ms Lindsay
RESPONDENT:  Mr Baker
INDEPENDENT CHILDREN’S LAWYER:  Damien Carter
FILE NUMBER:  BRF 11130  of 2003
APPEAL NUMBER:  NA 135  of 2010
PLACE DELIVERED:  Canberra
PLACE HEARD:  Brisbane
JUDGMENT OF:  Bryant CJ, Finn and Strickland JJ
HEARING DATE:  4 November 2011
LOWER COURT JURISDICTION:  Family Court of Australia
LOWER COURT ORDERS DATE:  28 May 2010 &
1 December 2010  
LOWER COURT MNC:  [2010] FamCA 421
DATE DELIVERED:  15 November 2012  [2012] FamCAFC 189  Coversheet and Orders Page 2
REPRESENTATION
APPELLANT:  In person
RESPONDENT:  In person
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:
Ms Frizelle
SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:
Carter Farquar  [2012] FamCAFC 189  Coversheet and Orders Page 3
ORDERS
(1) The appeal against the orders of the Honourable Justice Bell made on 28 May
2010 and on 1 December 2011 be dismissed.
(2) There be no order for costs in relation to the appeal.  
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Lindsay & Baker has been approved by the Chief Justice pursuant to s 121(9)(g) of the
Family Law Act 1975 (Cth).[2012] FamCAFC 189  Reasons Page 1
Appeal Number: NA 135 of 2010
File Number: BRF 11130 of 2003
Ms Lindsay
Appellant
And
Mr Baker
Respondent
And
Damien Carter
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
1. This is an appeal by Ms Lindsay (“the mother”) against parenting orders made
by Bell J on 28 May 2010 and 1 December 2010 in relation to the child, B, who
was born in October 2002 and is the child of the mother’s short relationship
with Mr Baker (“the father”).
2. His Honour’s orders of 28 May 2010 in effect provided that the child should
live with the father, that the father should have sole parental responsibility for
the child, and that the mother should spend time with the child on a supervised
basis pending a report in respect of that supervised time and a review by his
Honour at the end of 2010.
3. His Honour’s order of 1 December 2010 in effect provided for the mother’s
time with the child to be supervised on an indefinite basis.
4. The father who, like the mother, was unrepresented  before us, opposed the
appeal as also, importantly, did the Independent Children’s Lawyer (“the ICL”)
who was represented by Counsel before us.
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE  [2012] FamCAFC 189  Reasons Page 2
BACKGROUND HISTORY
5. The parties’ relationship apparently broke down at about the time of the child’s
birth in October 2002 when the parties were living  in northern New South
Wales. The child then remained living with the mother (which he continued to
do until February 2008).
6. Interim parenting orders were made in the New South Wales Local Court on
16 October 2003 providing for the child to live with the mother and spend time
with the father. However, it appears that until the end of May 2004 the father
only spent time with the child on a limited number  of occasions and at a
contact centre.
7. Following the filing of various applications by both parties (including
contravention applications by the father), orders were made by consent on
30 June 2004 by the Family Court providing for the  child to live with the
mother, who was to have sole parental responsibility, and for the child to spend
supervised time with the father at a contact centre. It seems that the father was
thereafter eventually able to spend some time with the child on an unsupervised
basis.
8. However, both parties continued to file applications, and the matter came
before Bell J on 20 October 2005. On that occasion  both parties were
represented by Counsel and orders were made for the child to live with the
mother and to spend unsupervised time with the father initially during the day
at a contact centre, but extending later to alternate weekends and then school
holidays.
9. The mother alleges that after the first time the child spent with the father on
22 October 2005, the child made disclosures of inappropriate behaviour on the
part of the father, and that he continued to make such disclosures following
other times with the father. Details of the disclosures made by the child and the
investigations which followed are detailed by Bell J in his reasons for judgment
of 28 May 2010 at [15] to [28] and need not be repeated here.
10. Suffice it to say that a trial took place before Carmody J on 27 and 28 February
2007, with judgment being delivered on 15 March 2007. At that trial both the
mother and the father appeared without legal representation and the ICL was
represented by Counsel.
11. Carmody J ordered that the child continue to live with the mother and spend
unsupervised time with the father on a gradually increasing basis.
12. In his reasons for judgment delivered on 15 March 2007 Carmody J
summarised this case as it had come before him in the following way:
2. The parents’ relationship broke down in October 2002.  The child
has resided with the mother all his life and spent mainly supervised
time with the father since separation. [2012] FamCAFC 189  Reasons Page 3
3. Past attempts to introduce unsupervised time have failed due
initially to welfare concerns arising out of the father’s admitted
heroin addiction but that is now under control and the only current
impediment to unrestricted contact is that the asserted risk of sexual
related harm to the child based on alleged disclosures and
behaviours the mother interprets as suggestive of abuse by the
father.
4. The father denies any indecent conduct and contends that the child
should be ordered to live with him as a safeguard against ongoing
emotional abuse at the mother’s hands and to ensure that he receives
the benefit of having a meaningful relationship with both parents.
5. On his case the mother is intrinsically contact averse, has a history
of non-compliance with court orders and is bent on destroying what
little relationship he has been able to establish with his son by
wilfully misconstruing patently improbable statements and giving
normal childish actions an unwarranted sinister connotation. He also
claims that the mother’s admitted encouragement of  the child to
repeat false allegations against him to others not only distresses the
child but has the purpose or effect of exacerbating the rift that has
developed between them.
6. Counsel for the Independent Child’s Lawyer dismisses the mother’s
“unacceptable risk” claims as verging on the fanciful and, in line
with the family consultant’s report,  proposes that increasing periods
of unsupervised overnight time be gradually re-introduced over the
next twelve (12) months so that by April next year the child will be
spending each alternate weekend from Friday afternoon to
Wednesday afternoon and each other Wednesday from 9.00am to
Thursday 9.00am as well as designated special days and half school
holidays.
13. Later, having reviewed the evidence before him, Carmody J reached the
following conclusions:
103. There is, as I have already concluded, no reasonable ground for
believing that the father has sexually abused the child in the past
and no other event or circumstance suggestive of an unacceptable
risk of physical harm in allowing the child to have unsupervised
time with the father is apparent to me. Nor am I persuaded that there
is a real chance of emotional or psychological danger to the child as
a result of having unsupervised time with the father.
…
110. The father says that the child should live with him but this is
contrary to the recommendation of both the family reporter and
Counsel for the Independent Children’s Lawyer. I do not think it [2012] FamCAFC 189  Reasons Page 4
would be in the best interests of the child to take him away from the
primary carer of a lifetime and place him in the hands of a genuine
and well meaning but inexperienced parent with whom he has had
little to do and is unsure of and (sic) this stage of his development. I
do not think he would be able to adjust to that transfer and that the
risk of emotional harm outweighs any potential benefit in doing it.
…
114. There is a serious question mark over the mother’s willingness and
ability to encourage and facilitate a close and continuing
relationship between the child and the father. Her  past history
suggests that she will struggle with this. Her attitude to contact is
not entirely appropriate and is incompatible with her responsibility
to encourage the establishment and maintenance of a meaningful
relationship between the father and the child.  I am willing at this
stage to take her at her word that she will accept my findings on the
sexual abuse question and comply with final orders even if she did
not do so in respect of those made at interim proceedings. She did
seem to me to be genuine when questioned about this and I believe
her when she says that she has received strong advice which she
accepts to comply.
115. If my faith in her proves to be misplaced then of course she runs the
very real risk of a reversal of residence application against her
succeeding in the future.
116. Having regard to the limited unsupervised time he has spent with
his father since separation, the tenuous nature of the relationship and
the damage done to the parental relationship by the sexual abuse
allegations and non-compliance with contact orders  I think the
overall best interests of this child will be best promoted by the
graduated and increasing levels of unsupervised time recommended
by the family reporter and reflected in the proposed orders of the
Independent Child’s Lawyer.
14. An appeal by the mother and a cross-appeal by the father against Carmody J’s
orders were dismissed by the Full Court on 26 October 2007.
15. It appears from the reasons for judgment of Bell J of 28 May 2010 at [30] –
[31], that by November 2007 the father again had to file contravention
applications in an attempt to spend time with the child and that the mother was
again making allegations of abuse to the Queensland department  responsible
for child welfare matters. (That department has operated under various names
during the life of this case, and we will therefore throughout these reasons
simply refer to it as “the Department”). [2012] FamCAFC 189  Reasons Page 5
16. On 12 February 2008 Carmody J, on the father’s application, issued a recovery
order which required that the child be delivered to the father and that he live
with him until 27 February 2008.
17. On 27 February 2008 Carmody J made further orders providing for the child to
live with the father and spend supervised time with the mother.
18. On 31 March 2008 further orders were again made by Carmody J in relation to
the mother’s time with the child (with only “changeovers” being supervised),
and in relation to the preparation of a further family report, the filing of further
material by the parties and for the transfer of the matter to another judicial
docket. Those orders were subsequently varied by Carmody J on 20 May 2008
to provide for the child to stay overnight with the mother on one night each
week.
19. According to Bell J at [37] of his reasons of 28 May 2010, the father had to
apply for a location order on 11 August 2008 because the mother had
disappeared with the child and then kept herself and the child hidden until
November 2008 when the child was recovered – a recovery order having been
issued by Murphy J on 8 September 2008 which provided for the child to be
delivered to the father.
20. On 21 November 2008 Murphy J made orders suspending all face-to-face time
between the mother and the child for a period of six weeks to be followed by
supervised time once a week at a contact centre.
21. During the course of 2008 and 2009 various expert investigations were carried
out and reports written in relation to this case and to which we will later refer.
THE PROCEEDINGS IN 2010 BEFORE BELL J
22. There was then a four day trial before Bell J on 15 to 18 March 2010. Again at
that trial each of the parents was self-represented and the ICL was represented
by Counsel.
Orders made on 28 May 2010
23. His Honour delivered his reasons for judgment on 28 May 2010 and made the
following orders:
(1) The Applicant’s application is dismissed.
(2) That the child B born … October 2002 live with the father.
(3) That the father have sole parental responsibility for the long-term
and short-term care, welfare and development of child.
(4) That pursuant to Section 65L of the Family Law Act 1975: [2012] FamCAFC 189  Reasons Page 6
(a) the mother spend time with the child on a week  day to be
nominated by the Senior Family Consultant of the Family
Court of Australia Brisbane Registry, once a fortnight for
two hours after school in the Court precincts;
(b) such time and compliance with these parenting orders is to
be supervised by Ms [B] or another Family Consultant as
nominated by the Senior Family Consultant, with the father
to deliver and collect the child;
(c) the parties shall do all things, sign all such documents, attend
all such appointments and ensure the child attend all such
appointments as are reasonably necessary for such
supervision;
(d) the Family Consultant shall prepare a report, in respect of the
supervision, and contact with the parties and child and it is
requested that such report be available prior to November
2010; and
(e) the Family Consultant is at liberty to consider any or all
documents in this matter which the Family Consultant
considers would be of assistance in preparing the report.
(5) That the mother spend time with the child on a week day in the off
week after school for two hours supervised at a Contact Centre –
subject to the Independent Children’s Lawyer being able to organise
a Contact Centre for this purpose.
(6) That the Independent Children’s Lawyer endeavour to ascertain a
responsible adult approved by the Independent Children’s Lawyer
who may be able to supervise the mother’s time with the child
between the hours of 6:00 am and 9:00 pm on Saturday or Sunday.
(7) That the mother attend further psychiatric counselling in relation to
her allegations against the father with a professional approved by
the Independent Children’s Lawyer and that a report be made by the
said psychiatrist and/or psychologist.
(8) That the mother be permitted to send letters, cards and gifts to the
child.
(9) That the matter be brought back before the Honourable Justice Bell
no later than 30 November of this year for review. [2012] FamCAFC 189  Reasons Page 7
(10) The parties be at liberty to apply to re-list the matter on forty-eight
(48) hours’ notice to the other parties with regards to any variation
of this Order.
Summary of reasons for orders made on 28 May 2010
24. It will be necessary for us to refer later at various places in these reasons to his
Honour’s reasons for the orders which he made on 28 May 2012. However, we
explain at this point that he commenced his reasons with a detailed history of
the proceedings between the parties since, in his Honour’s words, the child was
“about one year old” (Reasons [1] to [29]). In the  course of that history his
Honour referred at considerable length to the allegations which the mother had
made in the trial before Carmody J and to certain of the expert or independent
witnesses and evidence in that trial.
25. His Honour then described the events, the expert or independent inquiries and
reports, and the proceedings which had followed Carmody J’s decision
(Reasons [30] to [79]).
26. In this context his Honour focused particularly on  the evidence of a social
worker in the Department, Ms W who, according to his Honour, had prepared a
report on 23 March 2009 which was based on assessments which had already
taken place. Although Ms W had not interviewed the child or his parents, she
had come to the conclusion that the child “had probably been sexually abused
by the father”. His Honour explained at some length his reasons for rejecting
Ms W’s evidence (Reasons [52] to [75]) and preferring the evidence of Ms Y,
who is a former officer of the Department and had prepared a report following
Ms W’s assessment.
27. At [80] of his reasons his Honour concluded in relation to the issue of abuse or
risk of abuse to the child:
80. Notwithstanding there may be matters which I have overlooked in
the extensive evidence before me which may be of some assistance
to either of the parties, I am quite satisfied on the evidence that there
is no evidence or any sufficient evidence to convince me that the
child, [B], is being sexually assaulted, nor is there any unacceptable
risk of his being sexually assaulted whilst in the primary care of the
father, in whose care he has been since 2008 when the child was
recovered pursuant to a recovery order.
28. His Honour then considered the relevant matters in s 60CC of the Family Law
Act 1975 (Cth) (“the Act”) (Reasons [81] to [102]). In this context his Honour’s
concerns that the mother might “again abscond” with the child clearly emerged.
His Honour’s conclusion was that there would need to be supervision of the
mother’s time with the child, and that it would be necessary for the ICL to work
out the necessary supervision arrangements, which his Honour would review
later in the year. [2012] FamCAFC 189  Reasons Page 8
Proceedings on 26 November 2010
29. Pursuant to his Honour’s orders of 28 May 2010, the matter came back before
him on 26 November 2010 (See transcript, 26 November 2010). It is clear from
the transcript of that day that his Honour had before him an updating report
from the family consultant, Ms B, dated 1 November  2010, in which she
maintained her recommendation that the child continue to live with the father.
She also recommended that the child have a supervised twelve hour period four
times a year with the mother, but with weekly telephone communication. (Ms
B had previously prepared a number of family reports dated 24 February 2009,
17 June 2009, and 3 February 2010 and she had given oral evidence at the trial
before Bell J in March 2010).
30. Counsel for the ICL submitted that Ms B’s recommendations for four periods
each year be accepted. However, the father submitted that four times a year
would not be enough and that the child would be disappointed, and his Honour
indicated some agreement with that view.
31. There was also before his Honour on 26 November 2010 an affidavit from the
ICL (sworn/affirmed 24 November 2010) attaching reports from Ms C who had
been supervising the contact between the child and  the mother
together with an affidavit (sworn/affirmed 25 November 2010) from the mother
responding to matters raised in Ms C’s reports.
32. There was also a report from a psychologist, Dr M, prepared pursuant to Order
7 of the orders of 28 May 2010, in which Dr M concluded that the mother
continued to hold the belief that the father had sexually abused and was
continuing to abuse the child, and that the mother  “was not amenable to
reconsider her position”.
33. After the mother had raised some matters concerning his Honour’s decision in
May, which his Honour correctly explained were matters for an appeal, his
Honour said that if the mother would consent he would make an order that day
(concerning the mother’s future time with the child) otherwise the matter would
“be set down for hearing again”. The mother responded that she “would like it
to go to hearing”. His Honour then said that he would adjourn the matter to a
Registrar for the fixing of a date for a two day hearing in the following year.
34. Finally, on 26 November 2010 his Honour dismissed an application which the
mother had filed on 8 November 2010 seeking orders for a police investigation
into allegedly missing subpoenaed documents.
Proceedings on 1 December 2010
35. The matter next came before Bell J on 1 December 2010. Counsel for the ICL
advised his Honour at the outset that it was the position of the ICL that there
was no need for a further hearing given that a trial had occurred in March and
that the only matter left for determination was the ongoing arrangement for [2012] FamCAFC 189  Reasons Page 9
supervised time between the mother and the child. Counsel also advised his
Honour that the ICL had been able to engage a new supervisor, a Ms P, as Ms C
would no longer be available as from 12 December 2010.
36. After some further discussion with all parties concerning the terms of the order
he proposed to make, and having explained to the mother that he had been
“confused” at the previous hearing (when he had mentioned the possibility of a
two day hearing), his Honour made an order which in its engrossed terms is as
follows:
1. The mother spend time with the child [B] born …  October 2002
each alternate weekend for a period of no more than three hours on
a Saturday or a Sunday such time to be supervised by Ms [P] or
such other person appointed by the Independent Children’s Lawyer,
the costs of such supervision to be borne equally between the
parties.
SCOPE AND CONDUCT OF THE PRESENT APPEAL
37. On 24 December 2010 the mother filed a notice of appeal against his Honour’s
order of 1 December 2010. The mother had not at that stage filed an appeal
against the orders of 28 May 2010.
38. The matter came before the Appeal Registrar for a procedural hearing on
16 March 2011 and was adjourned to afford the mother the opportunity to seek
to file an appeal against the orders made on 28 May 2010.
39. On 6 May 2011 the mother filed an application seeking leave to file a notice of
appeal out of time against the orders of 28 May 2010. The other parties
eventually consented to that application.
40. It was necessary for the Appeal Registrar to conduct a number of further
hearings in order to have the appeals ready for hearing by this Court. We need
not detail the applications dealt with nor the orders made at those hearings. We
need only say that it was necessary for the matter  to be listed before us for
mention on 2 November 2011, and at that mention we  made orders which
permitted the mother to file a further amended notice of appeal (which she did
on 4 November 2011) in which she appealed both the orders of 28 May and
1 December 2010.
41. The mother’s original notice of appeal filed on 24 December 2010 contained
23 grounds of appeal.
42. On 16 September 2011 the mother filed an amended notice of appeal in which
each of the original 23 grounds appeared (at least in substance) but was crossed
out. There was then a new and, in many cases, different ground inserted
immediately after the crossed out original ground.  In addition new Grounds
24 to 37 were inserted. [2012] FamCAFC 189  Reasons Page 10
43. The mother also filed on 16 September 2011 a summary of argument which
addressed each of the 37 grounds in the amended notice of appeal. This was
done by repeating each ground and then adding some  additional material or
references in relation to that ground.
44. In addition, a further ground, Ground 38, appeared at the end of the summary
of argument. This appears to have happened because what was Ground 29 in
the amended notice of appeal was split in the summary of argument into two
paragraphs, with the second paragraph being numbered 30 and all subsequent
grounds given a higher number.
45. On 4 November 2011, the day of the appeal hearing, the mother filed a further
amended notice of appeal which contained the same 37 grounds of appeal
presented in the same way as in the amended notice  of appeal filed on 16
September 2011 (that is, with the grounds from the  original notice of appeal
crossed out and a new ground inserted below each original ground, and with
new Grounds 24 to 37). However, in the further amended notice of appeal
Ground 6 was abandoned (this was done by all material under the heading
“Ground 6” being crossed out). The only other difference between the further
amended notice of appeal and the amended notice of appeal was that the former
stated that the appeal was against the orders of 28 May 2010 as well as against
the order of 1 December 2010.
46. We have only mentioned these matters concerning the various notices of appeal
because Counsel for the ICL had filed her written summary of argument on
1 November 2011, and in that document Counsel had addressed the grounds of
appeal as they appear in the mother’s amended notice of appeal (filed 16
September 2011).
47. Given that there was no difference between the grounds as contained in her
amended notice of appeal, and the grounds contained in the further amended
notice of appeal (apart from the abandonment of Ground 6), Counsel for the
ICL was not at a disadvantage before us and was able to address orally without
difficulty those grounds which she considered she needed to address. When
later in these reasons we address the grounds of appeal, we will do so
according to the numbering which appears in the amended notice of appeal and
further amended notice of appeal.
48. We also mention in this context that in her written summary of argument
Counsel for the ICL endeavoured to group the grounds of appeal into eight
categories, but having done that she further grouped them into two categories
being: first, improper and unarguable grounds which have no substance and
should be dismissed, and second, grounds that are appealable (being Grounds
4, 5, 12, 13, 23, 29 and 31).
49. We do not propose to adopt these groupings. Rather  we considered it more
appropriate given the mother’s self-represented status and her obvious concerns [2012] FamCAFC 189  Reasons Page 11
about this matter, for us to address individually each of her grounds or
purported grounds (at least as best as we have been able to understand them),
notwithstanding the time and work that this has taken.
50. For his part, the father had prepared as his summary of argument a short
document (which he filed on 10 October 2011) in which he stated that Bell J
had “considered all of the evidence before him, from the Family Report writers,
the Queensland police, the Department of Communities, the psychiatrist and
psychologists reports, the contact centres and supervisors and the parties
involved to arrive at the decision he made.” The father then sought, as
mentioned at the outset of these reasons, that the orders of Bell J be upheld and
the appeal be dismissed. The father added little by way of oral submissions at
the hearing before us.
THE GROUNDS OF APPEAL
51. We will now set out the precise terms of each ground of appeal as it is
contained in the mother’s further amended notice of appeal (filed 4 November
2011) and we will then consider that ground.
Ground 1: “In hearing this matter His Honour has not fulfilled his obligation to
comply with legislative administrative procedural requirements and his determination
has been made outside jurisdiction, in that having said ‘It is not a matter for the Court.
If the Bar Association has seen fit not to have solicitors sitting beside counsel then I
can’t interfere with the Bar Association,’ his Honour has continued to hear the matter
with the independent child lawyer seated at the bar table addressing his honour during
proceedings. Counsel and the ICL have similarly not fulfilled their professional
obligations.”
52. This purported ground of appeal is directed to a passage in the transcript of
15 March 2010 at page 32 when his Honour was discussing with Counsel for
the ICL a timetable for the attendance of the witnesses during the trial. During
the course of that discussion, Counsel indicated that she would need to speak to
her instructing solicitor about the availability of certain witnesses. His Honour
then made the statement which appears in italics in this ground. There was no
error in his Honour continuing to hear the matter despite his concern that
Counsel’s instructing solicitor was not with her. Nor in our view, can any
criticism be made of the ICL and his Counsel on account of this matter.
Ground 2:  “His Honour made an error of law in not determining at the
commencement of proceedings who’s application he was hearing, and by what course
the hearing for final parenting orders had come before him, resulting in a
misconception from the onset of the nature of his duty, and a failure to recognise the
necessary conditions for the exercise of his jurisdiction.” [2012] FamCAFC 189  Reasons Page 12
53. It is true that Bell J did not identify at the commencement of his reasons for
judgment delivered on 28 May 2010, which party was the applicant and which
was the respondent and the precise orders which each was seeking. Nor does he
appear to have identified these matters at the commencement of the trial.
54. However, throughout the trial his Honour appears to have treated the mother as
the applicant given that he permitted her to cross-examine witnesses before the
father did so, and given also that the cover page of his reasons for judgment of
28 May 2010 show the mother as the applicant. In our view, this was the
correct approach because by the time of the trial before his Honour the child
was living with the father (pursuant to the orders  made by Murphy J on
8 September and 21 November 2008) and the mother’s case before his Honour
was that the child should return to live with her and have only supervised time
with the father (as is clear from her Case Information document filed on
12 February 2010). It is also abundantly clear from his Honour’s reasons for
judgment what orders each party was seeking.
55. In her oral submissions directed to this ground, the mother appeared to make
similar complaints in relation to the proceedings before his Honour on
26 November 2010.
56. There can certainly be no substance in these complaints because at the very
commencement of the proceedings on 26 November 2010, his Honour enquired
as to whose application was before him, and it is clear from the exchange
which followed, that it was the application of the ICL for a determination for
the time which the mother was to spend with the child (as required by the
orders of 28 May 2010).
57. There was also before his Honour on 26 November 2010 the application by the
mother for a police investigation into allegedly missing subpoenaed material,
which his Honour dismissed. The time at which that  application was being
determined and that it was the mother’s application is entirely clear from the
transcript of that day.
58. Finally, we observe that to the extent there may have been an expectation on
the mother’s part after the proceedings on 26 November that there was to be a
further two day hearing, this “confusion” on his Honour’s part was adequately
explained to her by him on 1 December 2010.
Ground 3: “His Honour made an error of law in not hearing this matter on a De
Novo basis and applying Rice and Asplund principles in light of the fact that
subsequent to final parenting orders made by Justice Carmody in March 2007, and an
appeal against those Orders, dismissed on 26/10/2007 the listing for final parenting
orders did not eventuate as a result of a fresh application by either parent, but from
Orders of Justice Carmody dated 31 March 2008, listing the matter for allocation into [2012] FamCAFC 189  Reasons Page 13
another judicial docket, and Orders of 20/5/2008, stating the application for final
parenting orders remain open.”
59. On its face this ground seems to complain that Bell J erred in deciding this case
only on the basis of evidence which became available after the trial before and
decision of Carmody J in February – March 2007 and not on the basis of the
evidence which was before Carmody J.
60. It will be clear from the summary of Bell J’s reasons of 28 May 2010 which we
earlier provided, that his Honour did canvass at considerable length in those
reasons the allegations and other evidence which had been before Carmody J in
February 2007. However, it was unnecessary for Bell J to go behind, or second
guess, so to speak, the decision reached by Carmody J (which had itself been
subject to appeal). What was necessary for Bell J to do, and what he did do,
was to consider the allegations made and other evidence, which had become
available, subsequent to Carmody J’s decision. As his Honour’s treatment of
what can be termed “new material” is, in our view, the most significant issue in
this appeal and as it is raised in other grounds of appeal, we will return to it
after canvassing all other grounds.
61. Finally, at this point in relation to Ground 3, we would say that we do not read
Bell J’s reasons of 28 May 2010 as containing any application of the principles
in  Rice & Asplund  (1979) FLC 90-725, and also that the orders made by
Carmody J on 31 March and 20 May 2008 which are referred to in the ground
were either of a procedural nature or adjusted the supervision arrangements and
are of no present significance.
Ground 4: “His Honour made an error of law in stating on the 26 November 2010,
‘I’m functu officio’, and ‘This is not a review’, in light of his Orders of 28/5/2010
which state at paragraph (9) ‘That the matter be brought back before the Honourable
Justice Bell no later than 30 November for a review’, and paragraph 87 of Reasons for
Judgment of 28/5/2010 where he wrote ‘that the Independent child lawyer should at
the end of six months bring the matter back on for a hearing before me.’”
62. Earlier in our account of the various proceedings before Bell J in 2010, we
explained that his Honour’s orders of 28 May 2010 required that the matter
should come back before him before the end of November that year so that he
could review the arrangements for supervision of the time which the mother
was to spend with the child. We have also explained the confusion on his
Honour’s part on 26 November 2010, which he acknowledged on 1 December
2010, as to the need for another two day trial. In addition we have explained
that on 26 November the mother had endeavoured to raise matters with his
Honour arising out of his decision on 28 May 2010,  which his Honour had
correctly explained were matters for an appeal and not for the limited “review”
which he was then conducting. Nothing more need be said about these matters [2012] FamCAFC 189  Reasons Page 14
save to make clear that there was no error on his Honour’s part as asserted by
Ground 4.
63. Before leaving Ground 4, we mention that in her oral submissions the mother
referred to an order made on 3 November 2010 by a Registrar which required
the Director-General of the Department of Communities (Child Safety
Services) “to provide an update of the Magellan Report”. It appears that this
order caused the mother to believe that there was to be a further trial.
64. (It should be explained that “the Magellan” list is a case management system in
the Family Court for serious child abuse cases. “Magellan” reports are
compiled for the assistance of the Court by child welfare departments).
65. It would appear that the order of the Registrar was made under a
misapprehension by the Registrar that such an updated report was required for
the review required under the orders of 28 May 2010. As will be seen from
those orders, which are earlier set out, no updated Magellan report was
required; only a report by a family consultant was required.
66. We also mention that there was before us at the hearing of the appeal (as
“Exhibit 1”) an email from the Department to the Registrar responding to her
order and explaining that the Department had not had any further contact with
the family since the provision of a report on 3 March 2010 and that there was
therefore no information to update.
Ground 5: “His Honour was estopped from making final orders  on 1 December
having said on the 26/11/2010 that there would be a further two day hearing of this
matter in May or June of 2011. As a result errors of fact, brought to his Honour’s
attention on 26/11/2010 have not been addressed, time has been lost, natural justice
denied and the matter has gone to Appeal.”
67. The matters raised by this ground have been addressed under Ground 4 and
found to be without substance.
Ground 6:  Abandoned.
Ground 7:  “His Honour made an error of law in dismissing the  appellant’s
application dated 8/11/2010 (appeal book page 520) seeking Orders that the Court
request a police investigation into missing documents and irregularities contained in
subpoenaed documents as described in the appellant’s affidavit of 8/11/2010, as unless
these matters are investigated decisions can not safely be made.”
68. We consider that his Honour did not make an error of law in dismissing on
26 November 2010 the mother’s application for an order that the police
investigate allegedly missing documents and other “irregularities” in relation to
subpoenaed documents. The reasons for this application by the mother are
apparently to be found in her affidavit (filed 8 November 2010). Nothing said [2012] FamCAFC 189  Reasons Page 15
in that affidavit would have made it appropriate for such an order to be made
directed to the police.
69. We do however note from a passage of the transcript of 15 March 2010 (pages
127 – 128) that his Honour had some concerns about  the state of the
subpoenaed material and was having Registry investigations made.
Ground 8:  “His Honour failed to exercise his jurisdiction by  not obtaining from
Relationships Australia records of supervised visits with the father in 2007, which
were subpoenaed, but were not contained in the Court file. These records are relevant
to the matter to be decided.”
70. Counsel for the ICL drew our attention to a passage at pages 105 – 108 of the
transcript of 15 March 2010 where there was extensive discussion of the
subpoena to Relationships Australia. That discussion is not easy to follow
although it emerges elsewhere in the transcript that his Honour was concerned
about missing subpoenaed documents and asked for a Registry investigation.
However, we are prepared to accept the submission of Counsel for the ICL that
the material which had been provided complied with the subpoena.
71. We note that included in the material in the “Exhibit Book” tendered by the
ICL there is an “intake” form dated 20 November 2009, a medical consent
form dated 1 December 2009, a report of supervised time spent by the father
with the child on 22 March 2008, and a sheet of the file notes dating from
14 October 2007 to 22 May 2008.
Ground 9:  “His Honour failed to exercise his jurisdiction in not allocating time to
hear evidence from CSO Ms [Q] whom I had subpoenaed to give evidence. The child
made disclosures of abuse to Ms [Q] on 23/1/2008. His Honour had an obligation to
hear evidence from Ms [Q]. Failure to call her makes findings unsafe.”
72. It appears from the transcript of 15 March 2010 (at pages 64 and 110) that a
subpoena had been issued to a Ms Q, a Child Safety Officer, to attend to give
evidence. However, Ms Q had apparently asked if she could come to court on a
later date in the week of the trial because she had child care problems. His
Honour ruled that she would have to come earlier than her preferred date
presumably because he believed that the trial would have finished by that later
date.
73. The matter of Ms Q’s attendance at the hearing (as opposed to references to her
work) appears not to have been raised again. As we  explained to the mother
when she was before us, it was for her to have reminded his Honour about Ms
Q if she wanted her to give evidence.
Ground 10:  “Natural justice has been denied in that since being re listed as a
Magellan matter in 2008, the case has not been heard consistently by one Judge, as a [2012] FamCAFC 189  Reasons Page 16
result benefits derived from the Magellan program available to other litigants under
the program have been not been (sic) available in this case.”
74. Again as was explained to the mother when she was before us, it is desirable if
serious child abuse cases (“Magellan” matters) can continue to be heard by the
same judge. The difficulty in this case was that Carmody J had retired from the
Court before the trial before Bell J.
Ground 11:  “His Honour has made an error of law, and denied natural justice by not
permitting the appellant to make an opening statement. This is a breach of proper
hearing and failure to act according to substantial justice.”
75. The transcript of the opening day of the trial (Transcript 15 March 2010, page
9) reveals that his Honour did not permit the mother to make an opening
statement for the reason that she had prepared a Case Information document.
There was no error on his Honour’s part in those circumstances.
Ground 12: “His Honour has made an error of law in not providing Reasons for
Judgment for Final Orders.”
76. His Honour did provide reasons for judgment on 28 May 2010 for the final
orders made that day. In so far as his Honour conducted a review on
26 November 2010 and 1 December 2010 of the supervision arrangements for
the mother’s time with the child (as provided for in the orders and reasons of
28 May 2010), it was unnecessary for him to provide formal reasons for
judgment. His reasons for the order made on 1 December 2010 are clear from
the transcripts of 26 November 2010 and 1 December 2010. There is therefore
no error as asserted in this ground.
Ground 13:  “His Honour has made an error of law in not providing a sunset clause
for supervision of visits.”
77. While we acknowledge the indefinite supervision of  a child’s time with a
parent is generally undesirable, it was well within his Honour’s discretion in
the circumstances of the present case, particularly having regard to the location
and recovery orders which have been necessary in the past for his Honour to
make the order for indefinite supervision. (See in this regard the discussion in
Champness & Hanson (2009) FLC 93-407 [215] to [221]).
Ground 14:  “His Honour has demonstrated actual bias in his pre judgment of this
matter, apparent in his comment at paragraph 80 of his Reasons for Judgment where
he wrote  ‘Notwithstanding there may be matters which I have  overlooked in the
extensive evidence before me which may be of some assistance to either of the parties,
I am quite satisfied on the evidence that there is no evidence that there is no evidence [2012] FamCAFC 189  Reasons Page 17
(sic) or any sufficient evidence to convince me that the child, [B] is being sexually
assaulted whilst in the primary care of the father’.”
78. The mother submitted orally to us that this statement indicated that his Honour
was committed to his conclusion no matter what evidence he may have
overlooked.
79. His Honour had before him an enormous volume of evidence in the form of
affidavits from the parties and from other persons. In addition he had tendered
documents from the ICL which was referred to as “the Exhibit Book” and
which extended to nearly a thousand pages and occupied four appeal books
before us.
80. It is therefore hardly surprising that his Honour included reference to the
possibility that he had overlooked something. But we are certainly satisfied
having considered that material ourselves, that his conclusion was reasonably
open to him as we will further explain in due course.
Ground 15:  “His Honour displayed apprehended bias in stating ‘I don’t want to know
that’ in response to counsel advising him Ms [Q] (CSO to whom the child disclosed
abuse) had been subpoenaed to give evidence.”
81. The context in which his Honour made the remark, which is the subject of this
ground, was in a discussion about apparently missing subpoenaed documents.
His Honour’s remark was a response to a statement by Counsel for the ICL
apparently concerning the witness, Ms Q, that “in respect of the one before this
one, your Honour, she has actually been subpoenaed  to give evidence only”
(Transcript 15 March 2010, page 127, lines 31 to 32).
82. If, as mentioned in relation to Ground 7, his Honour was concerned about
missing subpoenaed documents, he would not have wanted to hear about a
subpoena which was only directed to the attendance  of a witness. He was
certainly not displaying “apprehended bias” by the remark in question.
Ground 16:  “His Honour displayed apprehended [bias] during discussion of
witnesses to be called; the appellant said ‘[Ms W] is the senior practitioner […]. She
has been saying the child is at risk of harm since March 2009. She has said that he
has probably been--’ his honour did not allow me to finish my sentence, and and (sic)
responded by saying ‘I don’t want to hear what she will say. What do you want her
for?’”
83. The exchange between his Honour and the mother to which this ground is
directed occurred early in the trial when his Honour was establishing a
timetable for the calling of witnesses.
84. His Honour was correct in saying that the mother should not tell him what Ms
W would actually say, but rather she should tell him the purpose of Ms W’s [2012] FamCAFC 189  Reasons Page 18
evidence. This the mother was able to do – the purpose being that Ms W’s
evidence conflicted with that of Ms Y and Ms S (as  we will later discuss).
(Transcript 15 March 2010 page 18, lines 34 to 41).
85. It is important to observe that Ms W did give evidence during the trial. There is
no substance in this ground and its claim of apprehended bias.
Ground 17:  “His Honour demonstrated apprehended bias in his remark”  your (sic)
the one who – want them. Your (sic) the one who should follow it up” in relation to
records of the father’s visits with the child at Relationships Australia in 2007 which
the centre confirmed with me they had sent, but were missing from the subpoenaed
file, in light of the fact that I am unable to obtain the records without permission of the
Court, and it is within his Honours (sic) jurisdiction to obtain the records, and unsafe
to decide a matter when records are missing from the file.”
86. The mother explained to us that this was a different complaint to that contained
in Ground 8 (which was directed to the allegedly missing subpoenaed
documents from Relationships Australia), in that this ground asserted
apprehended bias on the part of his Honour in the way he dealt with the
allegedly missing subpoenaed documents from Relationships Australia.
87. We do not agree that there could be any apprehension of bias on his Honour’s
part in the way in which he dealt with the issue of missing subpoenaed
documents. As we have earlier pointed out, his Honour apparently initiated an
enquiry within the Registry in relation to missing  subpoenaed documents.
Specifically, in relation to the documents from Relationships Australia, we have
earlier accepted what we understood to be the submission of Counsel for the
ICL, that all material required to be produced by that organisation was
produced.
Ground 18:  “His Honour has demonstrated apprehended bias in quoting Mr [R] at
paragraph 28 of his Reasons for Judgment where he wrote ‘I note in Mr [R]’s report,
see 8.2.2 that he is of the view that in respect of issues of sexual abuse argued by the
mother to be indicative of sexual abuse are not necessarily indications or even strong
indicators of sexual abuse’ without including that Mr [R] also wrote at paragraph 8.2.2
‘In respect to the allegations of sexual abuse, the report writer does not see it as his
role to determine whether or not sexual abuse has occurred’, and at paragraph 8.2.10
‘It is my opinion that a comprehensive psychological assessment of the child may be
beneficial’, at paragraph 8.2.3 ‘it probably would  not be in the best interests of the
child to leave the mother and live with the father as the father is proposing’, at 8.2.8
‘If the Court decides that there is insufficient evidence to indicate that there is an
acceptable risk ‘..’it is still considered to be in the best interests of the child to
continue living with the mother’ .. and ‘parenting times with he (sic) father should in
this eventuality be supervised initially. After several successful supervised sessions,
supervised periods should be gradually introduced by sandwiching short periods (for [2012] FamCAFC 189  Reasons Page 19
example two hours) of unsuperviesed (sic) time between two periods – each of half an
hour – of supervised time. The unsupervised component could be gradually increases
(sic) to say, six hours and following six months or so of such sessions, there could be a
review’. ..’the reasons for his regimen are several fold – it give us (including the
Court) a chance to observe the development of the relationship between the father and
the child in a safer manner’.”
88. Mr R is a psychologist who prepared a family report dated 15 June 2006. It was
in that report that the passages referred to in this ground are to be found.
89. It would seem that the complaint in this ground is that his Honour only selected
one passage from Mr R’s report and not other passages which might have been
more favourable to the mother. Even if that be so, we consider it would be of
no consequence because the circumstances of the case had so changed since Mr
R prepared that report, in particular the child had been moved to live with the
father following the mother’s absconding with him.
Ground 19:  “His Honour demonstrated apprehended bias in Ordering psychological
report of the mother on 25/5/2010 (sic) [28/5/2010] in light of the fact that the Court
had twice previously Ordered psychological reports of the mother, and at the time had
the benefit of three psychological reports of the mother, yet had no psychological
reports of the father, who admittedly has a history of heroin addiction and was
considered to have probably sexually abused the child, thought to be at ongoing risk
of probable sexual abuse by the father as documented by the senior practitioner.”
90. There could be no substance in this ground without the mother establishing to
our satisfaction that she had asked the Court to order a psychological
assessment of the father, and also that the Court had refused to do this for
reasons which were inadequate. She has not done this.
Ground 20:  “His Honour has demonstrated apprehended bias in his comments at
para 88 of Reasons for Judgement (sic) where he wrote ‘Best to be said that I have not
looked into the respective histories of the parties’…, yet in the same paragraph wrote
‘I need no more refer in relation to the mother than to Dr [G’s] report’ and ‘in her
extensive history she sets out those matters which some people might consider to be of
importance in the early childhood development of the mother’ It is evident in this
comment that it is the father’s history his honour has not looked into. A fair minded
observer may perceive that his Honour has not brought an impartial and unprejudiced
mind to the resolution of this matter in light of the father’s criminal history, and the
fact that sexual abuse by the father was suspected.”
91. We think that all his Honour was saying in the first sentence of [88] of his
reasons was that he did not intend to refer to or discuss the histories of the
parties except to refer to Dr G’s report in relation to the mother. [2012] FamCAFC 189  Reasons Page 20
92. Dr G is a psychiatrist who interviewed the mother on 17 March 2008 and
prepared a psychiatric assessment of the mother dated 20 March 2008 pursuant
to the orders made by Carmody J on 12 February 2008.
93. Given the serious matters contained in the concluding opinion in Dr G’s report
– some of which are set out in our discussion of Ground 24, we consider that
his Honour was justified in referring to her report and no complaint of
apprehended bias arising out of this matter could have substance.
94. To the extent that this ground complains about the  lack of such a report in
relation to the father, we refer again to what we said in relation to the last
ground (Ground 19).
Ground 21:  “His Honour has demonstrated apprehended Bias in his statement at
page 25 para 40 of Reasons for Judgment where he says in regard to the Care
Agreement to which parental consent was sought by the Department ‘it was signed by
you. It’s of no force and effect’. The fact that the father refused to sign is immaterial to
significant issue, being the child was considered to be at risk of harm from the father,
and a neutral environment considered to be in his best interests, and a pre requisite for
further disclosures of probable sexual abuse.”
95. There is no reference in [40] of Bell J’s reasons to a “Care Agreement” (which
is apparently a document which parents can be requested to sign by the
Department and which would provide for the child to be put into foster care).
However our searches have revealed that at page 25 line 40 of the transcript of
the first day of the trial (15 March 2010) in the course of an exchange between
the mother and his Honour, there is discussion of a child protection care
agreement. During that discussion his Honour said the words attributed to him
in this ground. We have been unable to locate a copy of the agreement in
question, but in any event do not consider that his Honour’s words when read
in the context of the discussion during which they were said, could possibly
support a successful apprehended bias claim.
Ground 22:  “His Honour has made an error of fact at paragraph 39 of his Reasons
for Judgment where he wrote in regard to the child’s 93A interview with police on
20/11/2010, ‘notwithstanding that [B] made no disclosures. he was returned to the
father – that was on 20 November 2008’ in light of evidence contained in
departmental and police files documenting that the  child disclosed abuse on
20/11/2010,  and police tapes of the interview on 20/11/2010.”
96. Paragraph 39 of his Honour’s reasons needs to be read in context with
paragraph 38. Those paragraphs are as follows:
38. There were, I believe, two discs of evidence tendered to this Court,
which is most unsatisfactory to the Court, but I was able to see one
which was a video and the other which was solely audio.  The [2012] FamCAFC 189  Reasons Page 21
mother has touched upon the child exhibiting signs of distress in the
video in which he tends to move towards a corner.  I am also of the
opinion that this would be, in effect if I might say, normal behaviour
for a child which has suffered such a terrible existence over a period
of many years.
39. The audio recording is quite sad in that it was indicated to the child
that he was to go with his father after he had been removed from his
father for about three months and he exhibited signs of distress.  My
heart bled for him having been put in such a position by the mother
and notwithstanding that [B] made no disclosures, he was returned
to the father – that was on 20 November 2008.
97. We clarified with the mother when she was before us that the reference to “20
November 2010” in this ground should in fact be to “20 November 2008”.
98. It appears from a document on the Department’s files which was one of the
ICL’s tendered documents before Bell J, that the child may have made
disclosures to the police on or about 20 or 21 November 2008, and that he had
made disclosures prior to that date. His Honour therefore may have made the
error of fact as is asserted by this ground, although we cannot be certain that his
Honour was not in fact referring to the tapes which he had listened to and
saying that they contained no disclosure by the child.
99. However even if there was such an error by his Honour, it would not be a
material error which would cause us to interfere with his decision. This is
because it is clear from other passages in his reasons, that his Honour was well
aware that the child had made disclosures. More importantly, disclosures of
themselves do not establish that abuse has occurred; rather disclosures have to
be investigated (as they have been in this case) and findings made.
Ground 23:  “His Honour has made an error of fact by stating on 1/12/1010 (sic)
regarding a psychological report Ordered on 28/5/2010 and written by Dr [M] ‘He
didn’t give a disgnosis’ (Appeal book Page 699) in light of the fact that Dr [M]
(clinical and forensic psychologist with specific training, qualifications and expertise
in assessing, evaluating and treating individuals with complex mental health concerns
and personality problems) wrote under the heading ‘PRESENTATION & CLINIAL
OBSERVATIONS’ at para 22 ‘she did not display any symptoms indicative of thought
disorder or related psychotic like symptomatology’”
100. The words attributed to his Honour in this ground appear in the transcript of
1 December 2010 at page 2 line 33. Read in context  these words may well
amount to no more than a question on his Honour’s part as to whether a
diagnosis had been provided by Dr M. Thus we cannot be satisfied that his
Honour did make an error of fact, but even if he did, it has not been established
that anything would turn on such an error. [2012] FamCAFC 189  Reasons Page 22
Ground 24:  “His Honour made an error of fact at para 89 of his Reasons for
Judgment where he wrote ‘Dr [G] is of the opinion that the mother’s conviction that
[B] is being sexually abused by his father could perhaps be brought about as a result
of her own history or sexual abuse’. Dr [G] wrote ‘I believe it is possible that
hypervigilance and over protectiveness of her children may be a consequence
attributable to sexual abuse’”
101. It appears correct that in the concluding paragraphs of her report (which we
earlier mentioned) Dr G used the words which are attributed to her in this
ground rather than in his Honour’s interpretation of those words as appears in
the opening sentence of [89] of his reasons. While  it might be said that the
words as interpreted by his Honour are stronger than those actually used by
Dr G, nothing would turn on this. Rather the important paragraphs from the
doctor’s conclusions were quoted accurately later in paragraph 89 and then in
paragraph 90 of his Honour’s reasons and are as follows:
I consider that her psychological stance is increasingly entrenched as she
has undertaken the adversarial process of litigation and I believe that it is
improbable that she will be able to comply with Orders for unsupervised
time with the father.
As things stand I believe that it is highly improbable that she will ever be
able to facilitate contact between the child and the father and since the
Court has determined that sexual abuse of the child by the father is unlikely
to have occurred this in itself would be to the detriment of the child.
Ground 25: “His Honour has made an errors of fact at par 9 of Reasons for
Judgment where he wrote he wrote (sic)‘There are other machinery provision orders
had been made and eventually the father was permitted to go on outside excursions
with the child [B], with a staff member from the contact centre’ Prior to Orders of
October 2005, there were no Orders made for unsupervised time between the child
and father.”
102. We do not understand the complaint in this ground given that the “outside
excursions” continued, according to what his Honour said in the passage
quoted in the ground, to be supervised by a contact centre staff member.
Ground 26:  “His Honour has made an error of fact at par 4 of Reasons for Judgment
where he states ‘The independent child lawyer was appointed pursuant to an Order of
this Court dated March 9 2010’ in light of the fact that the independent child lawyer
was appointed pursuant to an Order dated 18/4/2006.”
103. If this was an error on his Honour’s part, it is immaterial.
Ground 27: “His Honour has made an error of fact at par 8 of his Reasons for
Judgment where he wrote ‘she further sought orders that the mother be permitted to [2012] FamCAFC 189  Reasons Page 23
travel with the child overseas provided she provides the father with evidence of a
return air ticket and itinerary.’”
104. Again, if this was an error, it is immaterial.
Ground 28: “His Honour has failed to considered (sic) matters fundamental to the
issue to be determined, making his findings unsafe. This is apparent in his statement at
para 88 of Reasons for Judgment he wrote ‘Best to be said that I have not looked into
the respective histories of the parties’”
105. We have already  in the context of Ground 20  discussed and suggested an
explanation for this statement by his Honour, and therefore do not need to
address this ground further.
Ground 29:  “His Honour has an obligation to consider the child’s views as they were
in evidence before him.
His Honour has made an error of law in accepting the findings of Ms [Y’s]
investigation’s (sic) and Assessment & Outcome Report – 11/11/2009 which resulted
in the closure of the child’s departmental file; it is not supported by facts contained in
case notes, is misleading, and biased, and the investigation plan has not been adhered
to, and the Family Risk Assessment summary of the father finds the child to be at high
risk of abuse in the father’s care, and it is stated in the review – ‘During this time
DOCM(CSS) completed a review of his case and we understand a new assessment is
recommended’.”
106. As Counsel for the ICL submitted (at paragraph 51 of her written submissions),
his Honour did take into account the child’s expressed views by means of the
various expert reports which were before him and on the basis of which he was
able to conclude at [97] there is a relationship between the boy and his mother
and that he is excited to be with his mother. There is thus no merit in the first
part of this ground.
107. We will return to the substance of the second part  of this ground when we
discuss what we have identified in the context of Ground 3 as the principal
issue in the case.
Ground 30: “His Honour failed to give real and substantial consideration to the facts
of the case, and answer the question whether on the evidence, access could represent
an unacceptable risk of harm to the child, resulting in an error of law in light of the
result of the father’s Family Risk Assessment, which finds the child is at high risk of
abuse in his father’s care, and states that the case will remain open for further
intervention. At section 1 & 2 of this assessment question 3 has been answered
incorrectly resulting in a lower than factual risk level.”[2012] FamCAFC 189  Reasons Page 24
108. Again, this is a matter to which we will return when considering the essential
issue in the appeal.
Ground 31:  “His Honour had an obligation to consider the Expert witness report of
[Ms H], Ordered on 31/3/2008. [Ms H] wrote ‘It is my opinion that Ms [Lindsay]s
concern about the safety of her son [B] is based on what appears to be a reasonable
assumption and one that many parents would hold, irrespective of the individual
adult’s sexual abuse history, given [B]’s overt sexualised behaviour, and other
behaviours displayed by [B] which are of concern and lastly the disclosures made by
[B] not only to his mother, his grandmother and sister, but also to childcare
workers.’”
109. It appears from a report which Ms H, a psychologist, prepared on
4 June 2009 that the mother attended counselling with Ms H with a view to
resolving issues with respect to her own sexual abuse and how that may impact
on her parenting of the child. The report was in evidence before his Honour,
and the subject of the mother’s two counselling sessions with Ms H was
discussed with the mother during her cross examination by Counsel for the
ICL.
110. Given the vast amount of evidence which his Honour had before him, we do
not consider that he was in error in not making reference to Ms H in his reasons
for judgment.
Grounds 32: “His Honour had an obligation to consider disclosures of sexual abuse
made by the child to childcare staff on the 9/2/2007, notified to the Dept. by the
Director of the centre on 11/2/2007, which due to an error of fact were not given
weight at the hearing in February 2007, or the subsequent appeal.”
Ground 33:  “His Honour has an obligation to consider that the  SCAN AM Team
were not able to provide appropriate recommendations or services for the child in the
absence of relevant information, available but not shared with the team by Dept. and
QPS. SCAN AM Team Supplementary Information – 19/2/2009 provided by Police
does not include information regarding the child’s 93A interview on the 20/11/2008 on
which date the child disclosed sexual abuse and death threats by the father. SCAN AM
Team minutes dated 20/2/2009 record CSO advised the team ‘Child has not disclosed
any concerns in relation to sexual abuse.’ The Dept. file contained mandated
notifications of disclosures of sexual abuse by the child at that dated.”
Ground 34:  “His Honour had an obligation to consider disclosures of sexual abuse
made to CSO’s on 23/1/2008, evidence of which was tendered on 15/3/2010. Failure
to consider these disclosures makes his Honour’s findings unsafe.”
Ground 35:  “His Honour had an obligation to consider a mandated report received
on 14 September 2009, referred to in Screening Criteria/Response Priority Summary [2012] FamCAFC 189  Reasons Page 25
29/10/2009 which records it is probable the child’s immediate safety is threatened, and
sexual abuse by the father is suspected. A 24 hour response was recommended. A copy
of the even intake – […] /Form ID […] is not contained in Court files.”
Ground 36:  “His Honour has an obligation to consider that the  Dept. opened an
‘Intervention with parental agreement’ with the father, in February 2009.”
Ground 37: “His Honour has an obligation to consider that the Dept. sought parental
consent to a ‘Care Agreement’ in June 2009. A neutral environment was considered to
be in the child’s best interests. The father refused to sign the agreement.”
111. The matters in these grounds will be discussed shortly when we turn to the
principal matter in the appeal being the new material before his Honour relating
to the risk to the child of sexual abuse.
THE NEW MATERIAL BEFORE BELL  J RELATING TO ALLEGATIONS
OF ABUSE OR RISK TO THE CHILD
112. We return now to the matters which were raised by Grounds 3, 29, 30 and 32
to 37, and which we consider to be the essential matters in the appeal, being
Bell J’s approach to, and conclusions regarding the events which occurred, and
the independent reports or assessments made, following Carmody J’s decision
on 15 March 2007. There was also a suggestion in the mother’s case that there
may have been disclosures from the child which had been made prior to, but
were not available at, the trial before Carmody J, but were available at the trial
before Bell J.
113. We propose to approach these matters first by tracing in greater detail than was
done in the earlier background history in these reasons, the events, proceedings,
investigations and reports which followed Carmody J’s decision in March
2007, either as recorded in Bell J’s reasons of 28 May 2010 or as drawn to our
attention in the context of the appeal. We will then consider the grounds of
appeal directed to these matters.
The relevant history
114. On 12 February 2008 Carmody J issued a recovery order in relation to the
child. Whether such an order was required because the child had disappeared or
because he was not being made available for time with the father is not clear,
but it matters little.
115. Carmody J also ordered that the child should live with the father until
27 February 2008 and have no contact with the mother pending further hearing,
and that the mother was to be psychiatrically examined within the following
two weeks. These orders apparently provide the reason for the psychiatric
assessment of the mother by Dr G in March 2008.  [2012] FamCAFC 189  Reasons Page 26
116. On 27 February 2008 at a hearing at which the mother was represented by
Counsel, Carmody J made further orders that the child live with the father and
that the child have supervised time with the mother on a graduated basis. His
Honour also ordered that the mother attend upon a clinical psychologist, Dr L,
“with respect to the issues raised in the Family Report dated 15th June 2006 at
paragraph 8.2.3”. That family report had been prepared by Mr R (a
psychologist in private practice) and in paragraph  8.2.3 it was recommended
that the mother participate in counselling to assist her in managing the reported
sexualised behaviour of the child and to assist her to understand and accept the
need for the child to develop a positive relationship with the father.
117. On 31 March 2008 Carmody J made further orders varying the arrangements
for the time which the mother would spend with the  child and ordering a
further family report “to assess the present interim orders”.
118. As a result of those orders, a family report dated 16 June 2008 was prepared by
Ms J, and in which it was recommended that the child continue to live with the
father.
119. On 11 August 2008, the father had to apply for a location order because the
mother had disappeared with the child. A recovery order was subsequently
issued by Murphy J on 8 September 2008. The child was not recovered until
November 2008 when he was returned to the father’s care. Orders were made
by Murphy J on 21 November 2008 suspending the mother’s time with the
child for a period of six weeks.
120. As recorded by Bell J at [40] and [41] of his reasons of 28 May 2010, an
assessment prepared by a departmental officer, Ms E, on 13 February 2009
concluded that the child was safe, and a family report prepared by a family
consultant, Ms B, on 24 February 2009 recommended that the child’s time with
his mother be supervised (and that he continue living with his father).
121. Also at [40] of his reasons, his Honour suggests that a “Magellan” report
prepared by the Department on or about 14 February 2009 concluded that the
order placing the child in the father’s care was placing him at risk. However,
the second last paragraph of that report in fact states that it was not considered
that that order was placing the child at risk. There is clearly a typing error in his
Honour’s reasons.
122. Importantly for present purposes, his Honour recorded in [41] that on 23 March
2009 Ms W (a social worker with the Department) had concluded that, in his
Honour’s words, the child “had probably been sexually abused by the father”.
123. A case note summary prepared by Ms W is contained in the Department’s files,
in which she referred to her concerns about this case which she had previously
recorded on the Department’s files in July 2008 and February 2009. While
apparently acknowledging the need for a “far more holistic” assessment, she [2012] FamCAFC 189  Reasons Page 27
expressed the view that the child had probably been sexually abused by the
father and was at ongoing risk of such abuse by the father.
124. On 14 September 2009 and in light, it would seem, of Ms W’s concerns,
another officer of the Department, Ms S, prepared a report which contained an
extensive history of the Department’s involvement with the family and of
notifications to it, and concluded with a recommendation that because a
thorough departmental assessment of the sexual abuse concerns had never been
conducted, there should be “a thorough, comprehensive and holistic
investigation and assessment undertaken” for the apparent purpose of the
Department being able “to provide clear advice” to the Family Court. It was
also recommended that while that investigation and  assessment were
undertaken, the child remain living with the father.
125. At [72] of his reasons of 28 May 2010 Bell J indicated that Ms S’s report was
dated 14 September 2008. It is true that a copy of that report which appears in
the Appeal Book bears the date 14 September 2008. However it is clear that the
date should be 14 September 2009 given that the report refers to events in the
period between 14 September 2008 and 14 September 2009 and the correct
date of 14 September 2009 is confirmed by another document dated 4
November 2009 on the Department’s file. The transcript of the trial also
contains clarification of the date (Transcript 16 March 2010, page 226, lines
19-36).
126. Ms Y and Ms U then carried out the investigation and assessment
recommended by Ms S. Both parents and various members of their families
were interviewed during their investigation, and other professionals who had
been involved with the parties or the child (but not all such professionals) were
also contacted.
127. In their report Ms Y and Ms U concluded that the child appeared not to have
been harmed, or to be at risk of harm, in his father’s care and was not in need
of protection, and that the departmental file on the family should be closed.
128. We emphasise at this point that so far as there may have been any concern on
our part during the hearing of the appeal that officers of the Department had
been concerned that the allegations of abuse of the child had not been properly
investigated, that concern was addressed and overcome in Ms Y’s report.
129. In his reasons for judgment of 28 May 2010, Bell J referred in considerable
depth to the reports of Ms W and of Ms Y. He also had the advantage of
hearing both of them cross-examined, as well as Ms S.
130. As his Honour indicated in his reasons (at [51], [52] and [55]), of all the
numerous experts who had been involved with the child, it was only Ms W who
supported the mother’s view that the child has and will be the subject of abuse
by the father. Further, his Honour was critical of Ms W for her reliance on what [2012] FamCAFC 189  Reasons Page 28
she called the “Accommodation Syndrome” which she was then unable to
explain adequately to his Honour. As his Honour emphasised at [71] Ms W
conceded “that she did not see anybody personally when she was completing
the review”.
131. His Honour ultimately preferred the evidence of Ms Y (who in his opinion had
carried out “an in-depth and effective consideration of all the material”) to that
of Ms W, in reaching his conclusion at [80] that the child had not been sexually
abused, nor was he at an unacceptable risk of abuse, by the father. In our view,
his Honour’s preference for Ms Y’s evidence, and also his conclusion that the
child had not been abused and was not at risk of abuse by the father were well
open to him.
132. We will return now to consider the grounds of appeal which appear to have
relevance to the matters just discussed. The grounds in question have been set
out in full earlier and we will here for the most part only summarise them.
The relevant grounds of appeal
133. In the second paragraph of Ground 29 the mother asserts error on his Honour’s
part in accepting Ms Y’s report. As we have earlier explained, his Honour was
entitled to accept Ms Y’s evidence and was certainly not in error in so doing.
We do not understand the suggestions in the ground in question that there is
still to be a review, and can only conclude that the mother has misunderstood
some part of Ms Y’s report.
134. We do not accept the assertion in Ground 30 that his Honour “failed to give
real and substantial consideration to the facts of the case” and that he failed to
“answer the question whether on the evidence, access [presumably to the
father] could represent an unacceptable risk of harm to the child”. A reading of
his reasons for judgment reveals that his Honour reviewed in depth the history
of the case and the enormous amount of evidence which was before him.
135. In  Ground 32 the mother asserts that his Honour “had an obligation to
consider disclosures of sexual abuse made by the child to childcare staff on the
9/2/2007, notified to the Dept. by the Director of  the centre on 11/2/2007,
which due to an error of fact were not given weight at the hearing in February
2007, or the subsequent appeal.”
136. This is the ground which raises the issue of material available at the time of the
trial before Carmody J, but not relied on in that trial. At the hearing before us,
we were provided with material from the T Child Care Centre which was
produced to the Court on 24 February 2010 under subpoena, and which was
apparently before Bell J at the trial in March 2010.  
137. Even if it is true that the material in question was not in evidence at the trial
before Carmody J, although it originated before the date of that trial, what is
being referred to in this ground is a notification to the Department (and indeed [2012] FamCAFC 189  Reasons Page 29
the child care centre material indicates that its staff were in contact with the
Department).
138. There are many documents on the Department’s files  which summarise the
notifications received (including a notification on 12 February 2007), but
ultimately the Department decided not to pursue these notifications. Given the
level of investigation which has been carried out by the Department,
particularly the review carried out by Ms Y after concerns raised by Ms W and
Ms S, there would be no justification for our interfering with Bell J’s decision
on the basis that it is unclear whether or not he had regard to the material from
the child care centre.
139. Ground 33 asserts that Bell J had an obligation to consider that information
concerning the child’s disclosures of “sexual abuse” and “death threats by the
father” which were made on 20 November 2008, were not made available by
the police and the Department to the SCAN AM team (which we understood to
be a government organised body which investigates claims of child abuse) for
purposes of that team’s report or records dated 20 February 2009.
140. That the child’s disclosures made on 20 November 2008 were not made
available to the SCAN AM team seems improbable when Ms S’s report of 14
September 2009 is read, particularly the statement  made in the second last
paragraph of the section numbered 4 in her report, that the matter was referred
to SCAN by the Department on 4 February 2009 “based on the allegations
made in November 2008”. However, if there was some fault on the part of the
police or the Department as alleged in this ground, that is not a matter that
establishes error on the part of the trial judge. His Honour was clearly entitled
in the circumstances of this case to rely on the Department’s investigations and
its ultimate conclusion to close the file based on the report of Ms Y.
141. Ground 34 asserts that his Honour had an obligation to consider disclosures of
sexual abuse made to child safety officers on 23 January 2008 and that failure
to consider these disclosures makes his findings unsafe.
142. Again, the child’s disclosures on 23 January 2008 are specifically mentioned in
the section numbered 4 in Ms S’s report of 14 September 2008. We repeat yet
again that that report was the reason why Ms Y then carried out her
investigation and report, and his Honour was entitled to accept Ms Y’s
conclusions that the child was not at risk in the father’s care.
143. Ground 35 asserts that his Honour had an obligation to consider “a mandated
report received on 14 September 2009, referred to in Screening
Criteria/Response Priority Summary 29/10/2009 which records it is probable
the child’s immediate safety is threatened, and sexual abuse by the father is
suspected. A 24 hour response was recommended. A copy of the event intake –
[…]/Form ID […] is not contained in Court files.” [2012] FamCAFC 189  Reasons Page 30
144. Notwithstanding the reference in this ground to the “Event intake […]/Fam ID
[…]” not being in “Court files”, that document does appear in the Exhibit Book
tendered by the ICL in the section of that Book containing the material
provided to the court under cover of the letter from the Department dated 18
February 2010. The document in question is a record of a notification to the
Department. What matters for present purposes is that this document was
created before Ms Y completed her report, and it can be assumed that it was
before her when she prepared her report.
145. Ground 36 asserts that his Honour had an obligation to consider that the
Department “opened an ‘Intervention with parental agreement’ with the father,
in February 2009”. Being apparently the Department’s document, it can be
assumed that Ms Y would have taken this agreement into account in her
investigation and report if indeed it had any significance. It has certainly not
been established that his Honour erred by allegedly failing to have regard to
this agreement.
146. Ground 37 again asserts an obligation on his Honour, being “to consider that
the Dept. sought parental consent to a ‘Care Agreement’ in June 2009. A neutral
environment was considered to be in the child’s best interests. The father
refused to sign the agreement.”
147. As with the previous ground, if the matters contained in the ground were of
concern to the Department, it is to be expected that it would have been raised
before his Honour by the Department. That appears not to have been done, and
no criticism can be made of his Honour on account of this matter.
CONCLUSION
148. It emerges from our consideration of the grounds which we have just
considered that none of them have been found to have merit. It also emerges
from what we have said that we have ourselves considered in depth the
evidence which was before Bell J, particularly the  material from the
Department. We have also considered the oral evidence of the officers of the
Department and of other professional experts which  was given before his
Honour. We are thus able to be satisfied that there would be no basis for our
interference with his decision. The appeal will therefore be dismissed.
COSTS OF THE APPEAL
149. As the appeal is to be dismissed and the father did not ultimately seek an order
for costs in that event as neither did the ICL, there will be no order for costs
with each party bearing their own costs of the appeal. [2012] FamCAFC 189  Reasons Page 31
I certify that the preceding (149) (one hundred and forty nine) paragraphs are a
true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ,
Finn and Strickland JJ) delivered on 15 November 2012.
Associate:
Date: 15 November 2012  

FAMILY LAW ─ APPEAL ─ PROCEDURE ─ Appeal against orders made by the Federal Magistrate summarily dismissing an application by the appellant in parenting proceedings ─ Whether the Federal Magistrate decided the summary dismissal application by reference to the substance of the principles governing such applications, and, whether, prior to doing so, her Honour sufficiently informed the appellant of the basis upon which she would decide the application to summarily dismiss his application ─ Where the Court rejected the challenge to the Federal Magistrate’s refusal to adjourn the proceedings as the appellant requested ─ Where the Court was not persuaded that the evidence before the Federal Magistrate necessarily established that the appellant’s application for variation of the existing parenting orders was necessarily doomed to fail, or was hopeless, although, the prospects of success appeared extremely limited ─ Where the Court reluctantly concluded that the substantive provisions of the test governing applications for summary dismissal, were not adequately conveyed to the appellant during the course of the hearing, or applied in the determination of the summary dismissal application ─ Where the Court was unable to accept that the proceedings could have had no other outcome ─ Where notwithstanding that the appellant’s own application, and evidence in support of it at trial, contributed materially to what this Court has found to be the Federal Magistrate’s error, the appeal was allowed, and the application for summary dismissal remitted to the Federal Magistrates Court for re-determination. FAMILY LAW ─ APPEAL ─ COSTS ─ Costs certificates awarded to the parties with respect to the appeal, and the re-hearing of the summary dismissal application.

[2012] FamCAFC 191  Coversheet and Orders Page 1
FAMILY COURT OF AUSTRALIA
MCDONALD & SANDLER  [2012] FamCAFC 191
FAMILY LAW ─ APPEAL ─ PROCEDURE ─ Appeal against orders made by the
Federal Magistrate summarily dismissing an application by the appellant in parenting
proceedings  ─ Whether the Federal Magistrate decided the summary dismissal
application by reference to the substance of the principles governing such
applications, and, whether, prior to doing so, her  Honour sufficiently informed the
appellant of the basis upon which she would decide  the application to summarily
dismiss his application  ─ Where the Court rejected the challenge to the Federal
Magistrate’s refusal to adjourn the proceedings as the appellant requested ─ Where
the Court was not persuaded that the evidence before the Federal Magistrate
necessarily established that the appellant’s application for variation of the existing
parenting orders was necessarily doomed to fail, or was hopeless, although, the
prospects of success appeared extremely limited  ─ Where the Court reluctantly
concluded that the substantive provisions of the test governing applications for
summary dismissal, were not adequately conveyed to the appellant during the course
of the hearing, or applied in the determination of the summary dismissal application
─ Where the Court was unable to accept that the proceedings could have had no other
outcome ─ Where notwithstanding that the appellant’s own application, and evidence
in support of it at trial, contributed materially to what this Court has found to be the
Federal Magistrate’s error, the appeal was allowed, and the application for summary
dismissal remitted to the Federal Magistrates Court for re-determination.
FAMILY LAW ─ APPEAL ─ COSTS ─ Costs certificates awarded to the parties with
respect to the appeal, and the re-hearing of the summary dismissal application.
Family Law Act 1975 (Cth) ss 69ZN, 70NBA
CDJ v VAJ (1998) 197 CLR 172
DL & W [2012] FamCAFC 5
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Rice and Asplund (1979) FLC 90-725
Stead v State Government Insurance Commission (1986) 161 CLR 141
Walton v Gardiner (1993) 177 CLR 378
APPELLANT:  Mr McDonald
RESPONDENT:  Ms Sandler [2012] FamCAFC 191  Coversheet and Orders Page 2
FILE NUMBER:  CAC 472 of 2012
APPEAL NUMBER:  EA 76 of 2012
PLACE DELIVERED:  Sydney
PLACE HEARD:  Canberra
JUDGMENT OF:  Coleman J
HEARING DATE:  1 November 2012
LOWER COURT JURISDICTION:  Federal Magistrates Court
LOWER COURT JUDGMENT DATE:  29 June 2012
LOWER COURT MNC:  [2012] FMCAfam 654
REPRESENTATION
COUNSEL FOR THE APPELLANT:  Mr Howard
SOLICITOR FOR THE APPELLANT:  Joseph Tallarita
COUNSEL FOR THE RESPONDENT:  Ms Lane
SOLICITOR FOR THE RESPONDENT:  Clancy & Triado
DATE DELIVERED:  15 November 2012 [2012] FamCAFC 191  Coversheet and Orders Page 3
ORDERS
(1) That the appeal be allowed.
(2) That the orders of Federal Magistrate Whelan made on 28 May 2012 be set
aside.
(3) That the application filed 29 March 2012 be remitted for re-hearing before a
Federal Magistrate other than Federal Magistrate Whelan.
(4) That the Court grants to the Appellant a costs certificate pursuant to the
provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a
certificate that, in the opinion of the Court, it would be appropriate for the
Attorney-General to authorise a payment under that Act to the Appellant in
respect of the costs incurred by the Appellant in relation to the appeal.
(5) That the Court grants to the Respondent a costs certificate pursuant to the
provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a
certificate that, in the opinion of the Court, it would be appropriate for the
Attorney-General to authorise a payment under that Act to the Respondent in
respect of the costs incurred by the Respondent in relation to the appeal.
(6) That the Court grants to each party a costs certificate pursuant to the provisions
of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate
that, in the opinion of the Court, it would be appropriate for the AttorneyGeneral to authorise a payment under that Act to each party in respect of such
part as the Attorney-General considers appropriate  of any costs incurred by
each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
McDonald & Sandler has been approved by the Chief Justice pursuant to s 121(9)(g)
of the Family Law Act 1975 (Cth). [2012] FamCAFC 191  Reasons Page 1
Appeal Number: EA 76 of 2012
File Number: CAC 472 of 2012
Mr McDonald
Appellant
And
Ms Sandler
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1. By Amended Notice of Appeal filed 17 September 2012 Mr McDonald (“the
appellant”) appealed against orders made by Whelan  FM on 28 May 2012
summarily dismissing an application by the appellant in parenting proceedings
commenced by him against Ms Sandler (“the respondent”) with respect to the
child of the former relationship of the parties, O, who was born in 1998 and is
now approaching 15 years of age.
2. The appellant sought that the order dismissing his  application for parenting
orders be set aside, and the application remitted for hearing by a
Federal Magistrate other than Whelan FM.
3. On 12 October 2012 the appellant filed an application for leave to adduce
further evidence in the appeal. Such further evidence was contained in an
affidavit sworn by the appellant on 10 October 2012.
4. Counsel for the respondent did not oppose the receipt of the appellant’s further
evidence, but submitted that, if accepted, the evidence would not “demonstrate
that the order under appeal is erroneous” (see CDJ v VAJ (1998) 197 CLR 172 at
par 109).
THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
CANBERRA [2012] FamCAFC 191  Reasons Page 2
BACKGROUND
5. On 29 March 2012 the appellant filed an application in the Federal Magistrates
Court seeking a departure order with respect to his Child Support liability.
Relevantly for present purposes, the appellant also sought the following orders:
2. That the father be responsible for all costs for the child spending time with
him.
3. That the Father be responsible for all costs incurred in spending time with
the child.
4. That the child spend time with the father as follows;
5. a. 21 days in July English school holidays commencing on the 4th day of
the holidays in 2012 and each year thereafter;
6. b. 14 days in the April English school holidays commencing on the 4th day
of the holidays in 2013 and each odd year thereafter;
7. c. 14 days commencing on 23rd of December 2012 and  each year
thereafter;
8. d. For a further period of 21 days in each calendar year in the United
Kingdom, Europe or any destination he so chooses, upon the father
providing 60 days notice and an itinerary to the mother providing there is
no direct disruption to [O’s] schooling.
6. The application was prepared by the appellant at a  time when he was
unrepresented, a situation which continued until the conclusion of the
proceedings before the learned Federal Magistrate.
7. As the appellant’s Counsel fairly and sensibly conceded before this Court, the
application was at best “cryptic” in articulating the relief which the appellant
was really seeking in the parenting proceedings which he had commenced.
8. Parenting orders, which were made by consent, in the Family Court on
2 February 2010 were in existence at the time the appellant filed his application
in the Federal Magistrate’s Court. Those orders provided:
...
5. [O] spend time with the Father whilst she lives in the United Kingdom as
follows:
(a) For 21 days in Australia during the English July (or summer)
school holidays commencing in Canberra Australia on the 4th
day of the holiday;
(b) For 14 days in Australia during the United Kingdom  April
school holidays in 2012 and each alternate year thereafter;[2012] FamCAFC 191  Reasons Page 3
(c) For 14 days in Australia commencing in Canberra on or about
23 December 2010 and each alternate year thereafter;
(d) For a further period of 21 days in each calendar year in the
United Kingdom or Europe as agreed between the parties upon
the Father providing the Mother with at least 60 days prior
notice;
(e) As may be further or otherwise agreed.
6. To give effect to the orders requiring [O] to spend time with the Father in
Australia:
(a) [O] may travel as an unaccompanied minor at the Mother’s
election from her 13th birthday;
(b) Prior to her 13th birthday [O] may travel as an unaccompanied
minor for any travel within Australia and otherwise the Mother
be responsible for an accompanying adult to travel with [O];
(c) The Mother book and pay for the return airfare for  [O] and
provide the Father with a complete itinerary including
international flight details and the identity of any accompanying
person travelling with [O] at least 28 days prior to [O’s]
departure from the United Kingdom by email;
(d) The Mother’s brother, [Mr E], not attend any changeover where
the Father is collecting [O].
7. To give effect to any time between the Father and [O] pursuant to subparagraph 5(e) above the Father:
(a) Be responsible for all costs of travel between his home and the
United Kingdom and for any costs of travel including [O’s]
travel during that time;
(b) Collect and deliver [O] from the Mother’s home unless the
Father requests she deliver [O] to Heathrow or Gatwick airports
and have her then travel as an unaccompanied minor  to a
destination in the UK, or Europe, and the Father then collect [O]
at the nominated destination;
(c) [O] attend school each day of such period unless otherwise
agreed with the Mother, save and except for up to 2 consecutive
school days provided such does not interfere with any exam,
concert or special extra-curricular activity;
(d) Provide to the Mother only a final itinerary and contact details
including his mobile telephone number whilst with [O] at least
28 days prior to the time occurring including whether
changeover occur at the home, Gatwick or Heathrow by email [2012] FamCAFC 191  Reasons Page 4
and at this time inform the Mother of whether he requires her to
provide [O’s] passport to him and the Mother to so provide the
passport if required with [O];
(e) The Father return [O’s] passport to the Mother at the conclusion
of this time with [O].
...
9. On 24 May 2012 a response to the appellant’s application was filed on behalf
of the respondent. That response sought that the application of the appellant
filed 29 March 2012 “be summarily dismissed”.
10. It is not in doubt that, at best, two working days  intervened between the
probable receipt by the appellant of the respondent’s response, and the hearing
of the proceedings before the learned Federal Magistrate on 28 May 2012.
11. On 28 May 2012 the learned Federal Magistrate ordered that a garnishee of the
appellant’s wages, insofar as it related to arrears of Child Support, be stayed
pending the determination of an application to the  Social Security Appeals
Tribunal (“SSAT”) to vary the obligation to pay Child Support, which gave rise
to the arrears, which were being garnisheed.
12. The learned Federal Magistrate sensibly determined  that the appellant’s
application for a departure order with respect to his Child Support obligation
ought not be entertained until the appellant had “ventilated” those issues in the
pending SSAT proceedings. No part of the present appeal relates to any orders
made by the learned Federal Magistrate with respect to Child Support.
13. On 29 June 2012 the learned Federal Magistrate published edited reasons for
her dismissal of the appellant’s application for parenting orders on
28 May 2012. The reasons for that decision are pivotal to the determination of
the appellant’s appeal.
THE GROUNDS OF APPEAL
14. The Amended Notice of Appeal articulated six grounds, two of which were
particularised in some detail.
15. Counsel for the appellant, with his customary willingness to engage with the
real issues for determination, observed that the challenges fell within two broad
categories, the first being “procedural unfairness”, a reference to grounds 1 and
2 of the Amended Notice of Appeal, the second being “irregularities in the
judgment”, a reference to grounds 3 – 6.
16. It is convenient to consider grounds 1 and 2 conjointly. As grounds 3 – 6 raise
somewhat different challenges, the Court will consider each of them
individually. [2012] FamCAFC 191  Reasons Page 5
Natural justice challenges
17. Grounds 1 and 2 provided:
1. That there was a denial of natural justice and/or procedural unfairness to
the Appellant father. Particulars
a. When the matter was before Federal Magistrate Brewster the
learned Federal Magistrate agreed to the father’s request for an
adjournment of the proceedings for all extant matter except the
father’s application for stay under section 111(c)  of the Child
Support (Assessment) Act 1987 (“the father’s stay application”);
b. The only matter that was stood down by Federal Magistrate
Brewster for hearing that day was the father’s stay application;
c. When the matter was transferred to Federal Magistrate Whelan,
Her Honour was misled by counsel representing the mother as to the
matters to be determined in that he advised Her Honour that the
mother’s application for summary dismissal was to be determined
as well as the father’s stay application;
d. The father was not given an opportunity to clarify the matters for
determination by Federal Magistrate Whelan;
e. The father’s request to Federal Magistrate Whelan for [an]
adjournment to obtain legal advice was ignored by Her Honour.
2. That the learned Federal Magistrate did not advise the father of the nature
of the proceedings or of the law applied in determining such proceedings.
Particulars
a. The proceedings as considered by Her Honour were for the
determination of the mother’s application for summary dismissal;
b. Her Honour did not advise the father that section 17A of the
Federal Magistrates Court Act 1999 applied to such proceedings;
c. Procedural and legal issues were otherwise not explained to the
father;
d. Her Honour did not comply with the guidelines set out in Re F:
Litigants in Person Guidelines [(2001) FLC 93-072].
18. In his written submissions in support of these challenges, Counsel for the
appellant placed some reliance upon the course the  proceedings took before
Brewster FM on 28 May 2012 prior to his Honour transferring the proceedings
to Whelan FM. The Court cannot accept, in the circumstances of this case, that
anything said or not said by Brewster FM impacts upon the challenges to the
decision of Whelan FM later that day. [2012] FamCAFC 191  Reasons Page 6
19. The crux of the submissions on behalf of the appellant was that, given that
her Honour proposed to, and did entertain the respondent’s application for
summary dismissal, the appellant should have been granted the adjournment of
the proceedings which he sought. In the alternative, it was submitted that if the
refusal of an adjournment was permissible, the learned Federal Magistrate had
failed to inform the appellant, he being a litigant in person, of the basic
principles which governed the application for summary dismissal.
20. It was ultimately submitted in support of these challenges:
31. It is submitted that because the nature of the proceedings was not carefully
explained to the father procedural unfairness has resulted. The father did
not have the opportunity to fully answer the case against him as his focus
was on the stay application.
21. Counsel for the respondent submitted that:
17. ... Federal Magistrates Brewster and Whelan set out very clearly for the
Appellant, the matters which he had to establish to enable his Application
to proceed. The Federal Magistrate did not use the  term “summary
dismissal” however, the Federal Magistrate was clear that she had to
consider whether his application for parenting orders could proceed. The
Respondent’s Counsel stated that that it was the Respondent’s case that if
the application for parenting orders could not continue then the substantive
Departure Application could not continue. This ultimately did not affect the
granting of a stay of the garnishee order. (Errors as in original)
22. On behalf of the respondent it was submitted that,  whilst the learned
Federal Magistrate may not have expressly informed  the appellant that the
respondent was seeking, and her Honour was considering, summary dismissal
of his application for parenting orders, her Honour had in substance done so,
given the explanation she gave the appellant by reference to the decision of the
Full Court in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”). It
was thus submitted that, in the context of this particular case, the distinction
between the principles governing a summary dismissal application, and the
application of the so called “principle” in Rice and Asplund, was a distinction
without a difference.
23. In her written submissions, Counsel for the respondent referred in detail to the
transcript of the proceedings on 28 May 2012, ultimately submitting that the
learned Federal Magistrate had:
20. ... appropriately spent considerable time asking questions of the Appellant
to assist her [to] identify whether or not the Appellant had a reasonable
cause of action despite any defect in the orders sought by him. During
submissions the Appellant advanced additional reasons for seeking [2012] FamCAFC 191  Reasons Page 7
parenting orders and arguing a significant and substantial change in
circumstances. The Appellant asserted that:
a. He had not seen [O] for 12 months due to alleged breaches of orders
by the Respondent. [transcript page 4, lines 32-35]
b. There were significant differences in the financial information
received from the Respondent before the hearing and that disclosed to
the Child Support Agency. [transcript page 5, lines 2-6]
c. He could not afford to fly to the United Kingdom to spend time with
[O]. [transcript page 5, lines 38-40]
d. He is now obliged to pay child support. [page 6, lines 6-8]
e. He believed that he would be entitled to child support concessions
because of the costs of travel to see [O] and these concessions were
ultimately not available to him. [page 7, lines 22-27]
f. The assessed amount of child support was also putting in jeopardy his
ability to “have a good holiday” with [O] in Australia. [page 8, lines
3-6].
24. It was thus submitted:
21. After extensive investigation of the Appellant’s case Her Honour implicitly
found that the matters raised by him did not amount to a change in
circumstances warranting a re-opening of the parenting case. The
Appellant’s case would not have had any more likelihood of success if the
adjournment to amend his application was granted.
25. On behalf of the respondent it was also submitted, uncontroversially, that the
learned Federal Magistrate had jurisdiction to summarily dismiss the
appellant’s claim. The tests which govern the exercise of that jurisdiction were
also, and again, accurately identified by Counsel for the respondent in her
submissions.
26. For substantially the same reasons as those relied  upon by Counsel for the
appellant, Counsel for the respondent disputed that the learned
Federal Magistrate had failed in her obligations to the appellant as a litigant in
person, by particular reference to the decision of  the Full Court in  Re F:
Litigants in Person Guidelines (2001) FLC 93-072. Whilst there are cases in
which the failure to explain the Court’s procedures, or the issues which are
raised to a litigant in person may assume significance, or even be decisive, the
Court does not perceive this to be such a case. Why that is so will become
apparent.
27. Ultimately, as Counsel for both parties acknowledged, the success or otherwise
of the natural justice complaint of the appellant falls to be determined by [2012] FamCAFC 191  Reasons Page 8
reference to the course which the proceedings took  before the learned
Federal Magistrate as recorded in the transcript.
28. Shortly after the matter was called on before the learned Federal Magistrate,
Counsel for the respondent said in the course of submission: “If your Honour
agreed with my submissions as to Rice v Asplund and there was no children’s
case”. To a legally trained person, that was a clear reference to an asserted basis
for summary dismissal of the appellant’s application for parenting orders.
29. In seeking to clarify what he was seeking, the appellant confirmed that he was
“seeking a stay order urgently” with respect to the garnisheeing of his wages to
satisfy his child support obligations, but did not  clarify the parenting orders
which he was actually seeking.
30. The learned Federal Magistrate, in an endeavour to clarify the issues suggested
that:
... there are two different things that I’m looking at here. One is orders that
were made by the Family Court in relation to the parenting issues and the
other issue that I’m dealing with is the child support assessment of what
child support you should be paying. ...
31. With respect to him, the appellant, at least to some extent, obscured the issues
by saying:
Well, the orders, the Family Court orders of February 2012 are causing
quite, enormous difficulties and they are not working considering the
situation of assessments and the international considerations. ...  
32. Discussion in relation to the stay, which was ultimately granted, of the
garnishee order followed, before the learned Federal Magistrate suggested:
The other issue is that there is an order – there is an application by you
seeking orders which I understand to be some variation to the existing
parenting orders made by the Family Court.
33. Whilst confirming that to be so, with respect to him, the appellant again        
obscured the issues by saying:
 To roll all those issues into one application, your Honour.
34. Commendably undeterred, the learned Federal Magistrate recorded,
undoubtedly correctly, that the “two things” needed to be dealt with separately.
Her Honour explained that Counsel for the respondent:
has raised an issue as to whether the court ought to reconsider parenting
orders that were made only two years ago and there is a general rule, if I
can use those terms, that the court should not encourage parties to keep on
coming back to the court in relation to parenting matters and the intention
is that the orders should be final. [2012] FamCAFC 191  Reasons Page 9
35. Her Honour further stated, again, in the context of the case before her, and
correctly:
So, there really needs to be some substantial and significant change in
circumstances before the court is prepared to reopen parenting orders.
Now, if you’re saying that there’s a problem with the parenting orders
because of the child support assessment, that’s a separate issue.
36. The following exchange ensued:
MR [McDONALD]: Well, there have been significant changes, your
Honour, to the current orders, so. I haven’t seen my daughter for 12 months
because the mother has not delivered [O]. I’ve only had access to [O] for
two of the last six care periods since the orders were struck in February
2010.
HER HONOUR: Well if there’s been a failure for the child to be delivered
in accordance with those orders, that’s a contravention matter. That is not a
matter in relation to the substantive orders. If the mother has contravened
the existing orders, then the application to the court should be in relation to
that contravention.
37. As Counsel for both parties confirmed before this Court, it is not in doubt that,
pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”), whether or
not a “contravention” application succeeded, once seized of such an
application, the Court has jurisdiction to vary the terms of parenting orders, as
the learned Federal Magistrate suggested to the appellant.
38. In the course of submissions which do not have significance for present
purposes, the appellant endeavoured to explain what he perceived to be the
nexus between his Child Support obligations, and his ability to spend time with
the parties’ child pursuant to the orders made in February 2010.
39. The learned Federal Magistrate carefully redirected the appellant’s attention to
the parenting application brought by him and said:
What I’m trying to I suppose ask you is, what are the significant and
substantial change in circumstances in relation to  the actual parenting
orders, setting aside the child support issues to the actual parenting orders.
40. That inquiry was entirely appropriate having regard to the terms of the
appellant’s application which, as his Counsel readily acknowledged to this
Court, at best inferentially conveyed the real relief which the appellant sought.
41. As Counsel for the appellant also fairly conceded,  at least in relation to the
parenting application, the affidavit of evidence-in-chief sworn on
29 March 2012 in support of such application did not, even to prima facie level,
provide evidence supportive of the relief prayed for in the parenting
application. [2012] FamCAFC 191  Reasons Page 10
42. To the extent that the affidavit evidence-in-chief of the appellant purported to
do so, under the heading “Refusal to Negotiate or Facilitate Contact”
paragraphs 26, 27, 28 and 29 of the appellant’s affidavit evidence-in-chief was,
as the learned Federal Magistrate suggested, on its face, more referrable to an
application asserting that the respondent had breached the existing parenting
orders, inferentially raising the prospect of orders for compensatory time to be
spent, or a variation of the orders for time to be spent, than an application to
vary the parenting orders per se.
43. After the exchange set out above, the learned Federal Magistrate said:
Now that is a contravention matters [sic] not a matter in relation to a
change of circumstance which would justify a variation to the existing
orders. Now, on a contravention application you may seek a variation of
the existing orders, but this isn’t a contravention application. What I’ve got
before me at the moment is an application to vary orders that were made by
the Family Court just slightly more than two years  ago I think. And, I
suppose what I’m trying to give you the opportunity to do before
Mr McIvor tells me the contrary, is what are the substantial or significant
changes in the circumstances that would make a court say, we should
change those existing orders.
44. After a submission by the appellant, the learned Federal Magistrate said:
All right. So you’re saying the substantial change is that you can’t afford to
fly to the UK to spend the time with [O] ---
45. The appellant replied:
At the ordered, that’s right.
Her Honour responded:
--- as the orders specify.
The appellant then said: “Yes”.
46. After further discussion, essentially with respect  to financial matters, the
appellant clarified that:
I would put forward that I pay for all travel costs and pay child support, as
you can see by my application, which would make this whole process
much simpler and much less combative, your Honour, and more chances to
see [O] ...
47. Shortly thereafter her Honour reiterated:
And at the moment, because of your financial situation, you are not able to
exercise whatever arrangements were ---
48. The discussion which ensued then related primarily to matters of child support.
Counsel for the respondent then made submissions in support of the [2012] FamCAFC 191  Reasons Page 11
respondent’s application for summary dismissal of the appellant’s parenting
application, during which reference was made to the appellant’s affidavit
evidence in support of his application filed 29 March 2012.
49. In the course of his submissions, Counsel for the respondent referred to the
changes in the parenting orders which the appellant sought. With some
justification, Counsel for the respondent asserted that there was “nothing raised
in his affidavit” which supported the changes which the appellant sought in
relation to the existing parenting orders.
50. Counsel for the respondent then said:
If the court were to entertain the father’s application, there would have to
be a family report, the child would have to travel back to Australia for the
family report, the child’s wishes at the age of 14 would have to be taken
into account and the whole thing would recommence holus-bolus.
It’s completely at odds with what’s in the child’s  best interests and
completely at odds, in my respectful submission, with the clear guidance
given by the Full Court in Rice & Asplund and there’s just no significant
change in circumstances. To the extent the father seeks to wrap up Child
Support matters with children’s matters and part of his case is, well,
because of the current assessment, he can’t afford that overseas travel or
that the Child Support Agency aren’t giving him a deduction for that
overseas travel, firstly, that’s a matter he can pursue before the SSAT,
secondly, in terms of the first decision, your Honour, the first objection
decision by the Child Support Agency was based on the fact that, in
2010/2011, he didn’t travel overseas to spend time with the child so the ---
51. Counsel for the respondent having concluded his submissions, the learned
Federal Magistrate then said to the appellant:
Yes. Mr [McDonald], you’ve heard what Mr McIvor has had to say, I must
say that that’s the first time [sic] that I have to consider. The first thing that
I have to consider is whether a parenting application should be reopened
when substantially, the orders that you’re seeking, with the exception of
one variation, are the orders that are already there ---
MR [McDONALD]: Your Honour, the ---
HER HONOUR: --- with one exception and that exception is that you pay
for costs which the wife has already been prepared to pay.
MR [McDONALD]: Yes. The fixed amount of child support that requires
needs to be written into new orders, your Honour, is the only thing that the
CSA will act on. We will be stuck in, for the next four years, change of
assessments, one after another, objections, one after another. It won’t stop
for the next four years, the Child Support --- [2012] FamCAFC 191  Reasons Page 12
HER HONOUR: The changes of assessment only occur because the
financial circumstances of one or other of the parties changes.
MR [McDONALD]: Yes, you Honour.
52. The learned Federal Magistrate then said:
And if that happens, then that’s the appropriate process. I suppose one of
the difficulties I’m having with this is that it appears to me, on the face of
it, Mr [McDonald], that the application in relation to the parenting orders is
merely a vehicle to have this court take jurisdiction in relation to the Child
Support matters when there is already a proceeding in front of the SSAT.
53. The appellant replied to her Honour:
Yes, that’s the advice that I received, your Honour. That was the advice
that I received. Your Honour, the Child Support Agency will only consider
any concessions on travel after it has occurred.
54. After a number of exchanges in relation to child support, the learned
Federal Magistrate said to the appellant:
--- and you’re telling me that you haven’t got any money and that’s why
you want the orders varied, as a result of financial hardship. There’s a
contradiction, to me, in saying, “I’m suffering from financial hardship,
therefore I want the orders varied so I’m responsible for all the costs of the
child spending time with me”. That’s a contradiction; it doesn’t make any
sense, Mr [McDonald].
55. The appellant replied:
It allows [O] and I to negotiate and talk about our contact and arrangements
into the future as she grows older.
56. The learned Federal Magistrate responded:
You can do that anyway, there is absolutely no reason why – [O] is 14
years old, there is absolutely no reason why you can’t talk to [O] about
those arrangements. As I understand it, she had a skiing trip, there was a
letter written, there was an offer made for make up time, you decided you
didn’t want the make up time at the time that it was offered. Now, you
know, those sorts of – perhaps a counter proposal could have been put; it
doesn’t appear that there was. Those are things that can be negotiated but
they don’t fundamentally give rise to an argument that there has been a
significant change in the circumstances since the orders were made in 2010
that would justify the making of two orders, one that [O] spend every
Christmas with you and secondly, that you pay for all the costs of her
spending time with you.
57. The discussion then again reverted to financial matters, after which the learned
Federal Magistrate delivered her ex tempore judgment. [2012] FamCAFC 191  Reasons Page 13
58. In the light of the passages of the transcript set out above, complaints by the
appellant that he was denied natural justice cannot be upheld. The learned
Federal Magistrate “bent over backwards” to afford  the appellant the
opportunity to be heard. Her Honour clearly explained the test which she was
going to apply in determining the summary dismissal application. The real
issue raised in the appeal is whether the learned Federal Magistrate applied the
correct test for the purpose of determining the summary dismissal application.
That issue has two elements:
a. Did her Honour apply the correct test when determining the
application; and
b. Did her Honour adequately and accurately explain the test to be
applied to the appellant.
If either of those questions is answered in the negative, appellate intervention
may be enlivened.
59. The essential questions for determination in the light of the grounds of appeal,
the submissions of Counsel for the parties in relation to them, and the course
which the hearing took, as recorded in the extracts from the transcript to which
reference has been made, is whether the test explained to the appellant by the
learned Federal Magistrate, howsoever described, differed in substance from
the test which governs the fate of applications for summary dismissal.
60. Implicit in the Court considering the critical issues in the appeal to be those
referred to above, is the Court’s rejection of the  challenge to the learned
Federal Magistrate’s refusal to adjourn the proceedings as the appellant
requested. If the learned Federal Magistrate adequately and accurately
explained the test to be applied to the summary dismissal application to the
appellant, nothing would, or could have been achieved by adjourning the
proceedings. If her Honour either inadequately, or  inaccurately explained the
test to be applied, appellate intervention would be enlivened on that basis.
61. The terms of s 69ZN, to which Counsel for the respondent referred the Court,
and the Court’s obligations to deal expeditiously with its business, support the
learned Federal Magistrate’s refusal to allow an adjournment. Moreover, as
Counsel for the respondent also submitted, nothing  raised by the appellant
before the learned Federal Magistrate established the probability that, on any
adjourned occasion, things would be materially different.
62. As recorded earlier, the relief sought by the appellant was not clearly
articulated in circumstances where it could readily have been. Although, as the
discussion with the learned Federal Magistrate ultimately revealed, the basis of
the appellant’s application to vary the parenting orders was not complex, his
affidavit of evidence-in-chief, did not clearly, or necessarily reveal the basis of
his application. [2012] FamCAFC 191  Reasons Page 14
63. To the extent that the appellant had a short period of time in which to address
the summary dismissal application, this Court does  not understand the
appellant to have ever suggested that to be a reason for adjournment before the
learned Federal Magistrate. Her Honour was, in this Court’s view, entitled to
decline to adjourn the proceedings.
64. Whilst the fate of these complaints in part falls to be determined by reference to
the transcript, the learned Federal Magistrate’s reasons for judgment also
assume significance.
65. The learned Federal Magistrate recorded that the existing orders of
February 2010 provided:
3. ... for the child, [O] (“the child”), who is now 14 years of age, to spend
time with the Father in Australia twice in each year, in July, and in
alternative years in April or December with the Mother to pay the costs of
the child’s travel. The Father is also entitled to spend a period of 21 days
with the child in Europe with him meeting his own travel costs and any
travel costs for the child while she is with him.
66. The effect of the amendments to the parenting orders sought by the appellant
was described by the learned Federal Magistrate as being:
4. The amendment proposed would require the Father  to meet all the costs
incurred in spending time with the child. The other changes would alter the
years in which the child spent the April school holidays in Australia with
the Father and provide for the period in December to be every year rather
than every alternative year.
67. Counsel for the appellant submitted that, albeit his application was less than
clear in that regard, the learned Federal Magistrate had misunderstood the
variations in the parenting orders which the appellant was seeking. Counsel for
the appellant conceded that the time to be spent by him with the child by the
orders sought by his client in paragraphs 5, 6 and  7 of his application filed
29 March 2012 was, at best, inferentially sought to be exercised in the United
Kingdom.
68. With respect to her Honour, and accepting that neither the appellant’s written
material, or any submissions made by him clarified matters which were within
his knowledge, which should have been readily able  to be clarified, it does
appear that the learned Federal Magistrate’s recording of the appellant’s
position, was not entirely accurate. Whether that changed anything, however, is
another matter.
69. The learned Federal Magistrate recorded, accurately, having regard to the
passages of the transcript to which reference has earlier been made, that:
5. The Father, when asked to address the significant change in circumstances
warranting a re-opening of the Orders made in 2010, stated that at the time [2012] FamCAFC 191  Reasons Page 15
the Orders were made he was not paying child support and that because of
the child support assessment he could not afford to fly to the UK each year
to see the child.
70. After traversing a number of submissions made on behalf of the respondent, the
learned Federal Magistrate said:
8. There is a clear contradiction, in my view, between the Father’s submission
that the substantive change in circumstances is his requirement to pay child
support, which affects his capacity to afford to visit the child, and his
application which would have him be responsible for all costs incurred in
spending time with the child.
71. Her Honour then recorded a passage of transcript to which reference has earlier
been made in these reasons. Given the potential significance of that passage, it
is appropriate to repeat it:
9. It was put to the Father by the Court:
I suppose one of the difficulties I’m having with this is that it appears
to me, on the face of it, Mr [McDonald], that the application in
relation to the parenting orders is merely a vehicle to have this court
take jurisdiction in relation to the Child Support matters when there is
already a proceeding in front of the SSAT.
MR [McDonald]:   Yes, that’s the advice that I received, your
Honour. (Footnote omitted)
72. As this Court understands the issue, the appellant was in a somewhat difficult
position by virtue of his necessity to effectively “fight on two fronts”. It has not
been suggested that the SSAT, or a court exercising jurisdiction in relation to
any child support matters arising out of a determination by the SSAT could
vary the terms of parenting orders. Conversely, in  the absence of having
jurisdiction under the child support legislation to do so, the Court could not, in
parenting proceedings, alter the obligations of the appellant pursuant to the
child support legislation.
73. As this Court understands the case, unless, and until the appellant secured
changes to the parenting orders, he had no possible basis for changing his child
support liability. Regrettably, the appellant did not articulate that reality as
clearly before the learned Federal Magistrate as, not surprisingly, his learned
Counsel has before this Court. As his Counsel explained the appellant’s
position in the Court below, the “clear contradiction” to which her Honour
referred was less evident.
74. With respect to her Honour, and accepting that the appellant’s statements to her
did little to suggest otherwise, the position was not quite as simple as suggested
to the appellant, and agreed to by him, without demur, in the passages set out
above.[2012] FamCAFC 191  Reasons Page 16
75. Her Honour thus concluded:
10. In my view, on the material before the Court there has not been a
significant and substantial change in circumstances since the Orders were
made in 2010.
76. The test which governs applications for summary dismissal is not in doubt, and
has been variously, but consistently expressed by judges of the High Court on a
number of occasions in recent times.
77. In  Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 256 (“Lindon”)
Kirby J said:
1. It is a serious matter to deprive a person of access to the courts of law for it
is there that the rule of law is upheld, including  against government and
other powerful interests. This is why relief, whether under O 26, r 18 or in
the inherent jurisdiction of the court, is rarely and sparingly provided.
2. To secure such relief, the party seeking it must show that it is clear, on the
face of the opponent’s documents, that the opponent lacks a reasonable
cause of action or is advancing a claim that is clearly frivolous or
vexatious.
3. An opinion of the court that a case appears weak and such that it is unlikely
to succeed is not, alone, sufficient to warrant summary termination. Even a
weak case is entitled to the time of a court. Experience teaches that the
concentration of attention, elaborated evidence and argument and extended
time for reflection will sometimes turn an apparently unpromising cause
into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a
reasonable cause of action, is not a substitute for proceeding by way of
demurrer. If there is a serious legal question to be determined, it should
ordinarily be determined at a trial for the proof of facts may sometimes
assist the judicial mind to understand and apply the law that is invoked and
to do so in circumstances more conducive to deciding a real case involving
actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may
have a reasonable cause of action which it has failed to put in proper form,
a court will ordinarily allow that party to reframe its pleading. A question
has arisen as to whether O 26, r 18 applies to part only of a pleading.
However, it is unnecessary in this case to consider that question because
the Commonwealth’s attack was upon the entirety of  Mr Lindon’s
statement of claim.
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it
is clear that proceedings within the concept of the pleading under scrutiny
are doomed to fail, the court should dismiss the action to protect the [2012] FamCAFC 191  Reasons Page 17
defendant from being further troubled, to save the  plaintiff from further
costs and disappointment and to relieve the court of the burden of further
wasted time which could be devoted to the determination of claims which
have legal merit. (Footnotes omitted)
78. In Walton v Gardiner (1993) 177 CLR 378 (“Walton”) at 392-393 Mason CJ,
Deane & Dawson JJ said:
The inherent jurisdiction of a superior court to stay its proceedings on
grounds of abuse of process extends to all those categories of cases in
which the processes and procedures of the court, which exist to administer
justice with fairness and impartiality, may be converted into instruments of
injustice or unfairness. Thus, it has long been established that, regardless of
the propriety of the purpose of the person responsible for their institution
and maintenance, proceedings will constitute an abuse of process if they
can be clearly seen to be foredoomed to fail. Again, proceedings within the
jurisdiction of a court will be unjustifiably oppressive and vexatious of an
objecting defendant, and will constitute an abuse of process, if that court is,
in all the circumstances of the particular case, a clearly inappropriate forum
to entertain them. Yet again, proceedings before a court should be stayed as
an abuse of process if, notwithstanding that the circumstances do not give
rise to an estoppel, their continuance would be unjustifiably vexatious and
oppressive for the reason that it is sought to litigate anew a case which has
already been disposed of by earlier proceedings. The jurisdiction of a
superior court in such a case was correctly described by Lord Diplock in
Hunter v. Chief Constable of the West Midlands Police as “the inherent
power which any court of justice must possess to prevent misuse of its
procedure in a way which, although not inconsistent with the literal
application of its procedural rules, would nevertheless be manifestly unfair
to a party to litigation before it, or would otherwise bring the
administration of justice into disrepute among right-thinking people”.
(Footnotes omitted)
79. Albeit referring to permanent stays of proceedings, for present purposes, the
tests referred to in  Walton are instructive. The relevant Rules of the Federal
Magistrates Court reflect the common law principles which emerge from the
authorities to which reference has been made.
80. Whether or not there is, or ever was, a “principle” in Rice and Asplund is not
relevant for present purposes. The questions are whether the learned
Federal Magistrate decided the summary dismissal application by reference to
the substance of the principles governing such applications, and, whether, prior
to doing so, her Honour adequately informed the appellant of the basis upon
which she would decide the application to summarily dismiss his application.
81. Although, as the authorities confirm, the circumstances in which an application
may be summarily dismissed are not finite, pivotal to the making of orders for
summary dismissal in a case such as this, is acceptance of the proposition that [2012] FamCAFC 191  Reasons Page 18
the proceedings are doomed to fail, or could not, on the applicant’s own
material, possibly succeed.
82. However the test is formulated, an applicant for summary dismissal bears a
heavy onus. Kirby J eloquently explained why that is so in our judicial system.
It could be suggested in the context of the present appeal, that absent it being
apparent that an unfair costs burden would likely result from an application
proceeding to determination on its merits, the Court should err on the side of
allowing such application to be thus determined, rather than summarily
dismissing it.
83. The determination of the essential issues raised in this appeal is not simple or
straightforward, as the cogent submissions of Counsel for both parties confirm.
Whilst determining the appeal according to law, the Court must avoid on the
one hand, a “pernickety” analysis of the judgment of the learned
Federal Magistrate whilst, on the other hand, must  resist the temptation to
decline to disturb a clearly sensible and logical decision if appealable error is
demonstrated. Pivotal to the submissions of Counsel for the appellant is that
her Honour neither expressly, or impliedly concluded that the appellant’s claim
was doomed to fail or necessarily hopeless, but rather assumed facts which had
not been found, or then able to be found, namely that there had “not been a
significant and substantial change in circumstances since the orders were made
in 2010”. That contention cannot be readily rejected.
84. Necessarily, Counsel for the appellant submitted that, whilst the evidence
adduced by his client at the time the matter was determined before the learned
Federal Magistrate was “weak”, and that the appellant was by no means
assured of success, much less that success was probable, the learned
Federal Magistrate could not reasonably have concluded, without at least some
testing of the evidence of the appellant, that there had not been a significant
and substantial change in circumstances since the orders were made in 2010
which warranted reconsideration of those orders. It was thus submitted that
her Honour could not reasonably have concluded for that, or any other reason,
that the appellant’s claim was necessarily doomed to failure.
85. Correctly in this Court’s view, Counsel for the respondent submitted that the
appellant could not rely upon the deficiencies in his own material in support of
his resistance to the summary dismissal application. It was submitted that the
learned Federal Magistrate had, correctly, proceeded in reliance upon the
appellant’s own evidence, such as it was, in determining the summary dismissal
application.
86. On behalf of the respondent it was further submitted that, whilst the learned
Federal Magistrate had not used the terms emerging  from the authorities in
relation to summary dismissal, it has not been established that what her Honour
said failed in substance to adequately and accurately inform the appellant of the [2012] FamCAFC 191  Reasons Page 19
test to be applied, or and that her Honour had failed to apply the relevant
criteria when determining the summary dismissal application.
87. Whatever its ultimate significance, on any view of  the evidence, the parties’
child had not spent the time with the father subsequent to the February 2010
orders which the orders contemplated. In fact, as emerged uncontroversially
during the course of the hearing of the appeal, other than at Christmas in 2010
and in July 2011, the father had not spent any time with the child since the
orders were made.
88. As the evidence before the learned Federal Magistrate, to which her Honour
referred, revealed, the parties asserted different reasons for the absence of such
contact. There were, as the learned Federal Magistrate suggested, some
apparent anomalies in the appellant’s own version of those events. Those
anomalies were exacerbated by the terms of the orders which the appellant
sought.
89. With respect to the learned Federal Magistrate, and making all due allowance
for the confused, and confusing presentation of the appellant’s case before her,
this Court is not persuaded that the evidence before the learned
Federal Magistrate necessarily established that the appellant’s application for
variation of the existing parenting orders was necessarily doomed to fail, or
was hopeless, although, the prospects of success appeared extremely limited.
90. Albeit a matter of degree, with respect to the learned Federal Magistrate, and
accepting the difficult circumstances in which her Honour was obliged to deal
with the proceedings, the Court reluctantly concludes that the substantive
provisions of the test governing applications for summary dismissal, were not
adequately conveyed to the appellant during the course of the hearing, or
applied in the determination of the summary dismissal application.
91. With respect to the learned Federal Magistrate, if the evidence of the appellant
that he could not afford to spend time with the parties’ child in accordance with
the February 2010 orders was accepted, the best interests of the child would
justify revisiting the parenting orders. So doing may not result in the orders
being changed in any material respect, but that is not the issue.
92. Although some anomalies in the appellant’s own evidence were referred to, this
Court does not discern that her Honour found, or could permissibly have found,
that the appellant’s essential allegations of fact  in relation to his financial
ability to spend time with the parties’ child pursuant to the existing orders,
precluded him from doing so. Had the learned Federal Magistrate been able to,
and found that the appellant’s financial circumstances did not preclude him
from spending time with the parties’ child pursuant to the existing orders,
different conclusions would have been available.[2012] FamCAFC 191  Reasons Page 20
93. As Counsel for both parties agreed, the summary dismissal of the appellant’s
application to vary the existing parenting orders did not, as a matter of
jurisdiction or discretion, preclude the appellant from seeking the same relief
via an application pursuant to s 70NBA of the Act. Whilst, no doubt reassuring
to the appellant if his appeal is dismissed, the availability of an alternate avenue
of possible relief does not disentitle the appellant to succeed with the present
challenges if they are made out.
94. Whilst the Court reluctantly concludes that the learned Federal Magistrate did
not adequately inform the appellant of the test applicable to the respondent’s
summary dismissal application and/or apply that test in determining the
application, it is necessary to consider whether, to the extent that these are
natural justice issues, which the Court does not consider them to necessarily be,
as Counsel for the respondent submitted in reliance upon  Stead v State
Government Insurance Commission (1986) 161 CLR 141 (“Stead”), the appeal
should nevertheless be dismissed as the proceedings could have had no other
outcome.
95. Counsel for the respondent fairly conceded that the onus of persuading the
Court that the proceedings could have had no other outcome in the court below,
which rested upon the respondent could not readily  be discharged.
Unsurprisingly, Counsel for the respondent’s submissions in relation to the
primary issue raised by these challenges, were also relied upon in the context of
her  Stead  contentions. Perhaps, also unsurprisingly, given that this Court has
concluded that the appellant’s application to vary the parenting orders was not
necessarily doomed to fail or hopeless, the Court is unable to accept that the
proceedings in the court below could have had no other outcome.
96. Whether, having been informed of the test in terms  of doomed to fail or
hopeless, the appellant would have raised the arguments his learned Counsel
asserted before this Court is not the point, the test being whether there could, as
opposed to would have been a different outcome.
97. The Court is reluctantly persuaded that these challenges have substance. As
these reasons hopefully reveal, the issue is finely balanced. It is arguable that
the Court’s conclusion involves an unfortunate degree of “pernickety” analysis,
and required of the learned Federal Magistrate a standard of perfection which
was unreasonable and unrealistic in the circumstances in which her Honour
was required to determine the summary dismissal application. It could further
be charged that the appellant was the author of his misfortune in the court
below. Such criticisms have force. The Court has perhaps erred on the side of
too generously allowing a litigant with little apparent prospect of success his
day in court, rather than risking denying him the opportunity to turn his
“unpromising cause into a successful judgment” (see Lindon (supra) at 256).[2012] FamCAFC 191  Reasons Page 21
98. It remains to consider the submissions of Counsel for the respondent in reliance
upon the decision of the Full Court in DL & W [2012] FamCAFC 5 (“DL &
W”). In that case, a Federal Magistrate had found “significant changes” in the
circumstances of the parties subsequent to the making of the orders which were
sought to be revisited. The Federal Magistrate had, however, dismissed the
application to vary the orders in reliance upon an “assessment of the potential
costs and benefits to the child from a new trial about her parenting
arrangements”.
99. The proceedings in DL & W involved a child who was born in January 1999,
the child being aged 12 at the time of the appeal to the Full Court. The
application to vary the existing parenting orders in that case met with an
application for summary dismissal. Prior to the application being determined, a
Family Report was prepared, sensibly, to ascertain the views of the child the
subject of the proceedings in relation to a number of relevant issues. The report
subsequently issued, and was uncontroversially received in evidence before the
learned Federal Magistrate.
100. As the Reasons for Judgment of the Full Court make  clear, the case turned
significantly on the Full Court’s rejection of the submissions on behalf of the
appellant that the learned Federal Magistrate had “insufficient evidence to
allow finding[s] to be made” that the circumstances did not justify a further
exploration of the parenting proceedings.
101. In the course of its reasons for dismissing the appeal, the Full Court recorded:
105. Her Honour adopted a common sense approach to a case in which the only
change in the child’s life proposed by the father would be for her to spend
two, or possibly just one, more nights a fortnight with him during school
terms. The importance (or lack thereof) to the child of this proposed
change, in circumstances where she already enjoyed  a very good
relationship with her father, stood to be considered in light of the fact that
“in a few short years” she would be old enough to “vote with her feet”.
106. Any potential benefit to the child associated with spending additional time
with one loved parent (and we might note a correspondingly shorter time
with another loved parent and siblings) was, in her Honour’s view,
outweighed by the prejudice associated with yet more litigation. As we
have found no appellable [sic] error in this approach, the appeal will be
dismissed.
102. The Court does not perceive that the decision in  DL & W creates an
impediment to the present appeal being allowed. The dismissal of the appeal in
that case was largely referable to the failure of the appellant to establish that the
critical findings of fact of the learned Federal Magistrate had not been
reasonably open to her. Properly understood, the changes to the parenting [2012] FamCAFC 191  Reasons Page 22
orders sought by the appellant in this case were more significant than those
sought in DL & W.
103. For present purposes, significantly in  DL & W, the decision to summarily
dismiss the proceedings was made after a Family Report had been obtained in
relation to what were, clearly, the issues of potential relevance in any final
hearing. Had there been a Family Report in this case, given that the child the
subject of the present proceedings is approaching 15 years of age, such report
would almost certainly have been decisive of the proceedings, at least in a
practical sense.
104. It ought not be thought that the Court’s inability to accept the submission of
Counsel for the respondent in relation to the impact of DL & W on this appeal
ignores either the provisions of s 69ZN or the observations of the Full Court in
DL & W. In reality, unless the child, the subject of these proceedings, was at
least receptive to the changes in the current parenting orders sought by the
appellant, to allow the proceedings to continue, would almost certainly be an
abuse of the processes of the Court, but the Court cannot speculate about that.
The Court would not expect, given her age, that ascertaining the child’s
response to the appellant’s proposal would be difficult, formal or expensive.
Once the child’s views emerged, if “yet more litigation” resulted, it would
potentially be at the cost of the party maintaining it in the face of the child’s
opposition.
105. As the learned Federal Magistrate observed, there was no evidence that the
child, the subject of the present proceedings, wished to have the parenting
orders changed, either in the way sought by the appellant or otherwise. As
Counsel for the appellant submitted, that absence of evidence could not operate
in favour of either party given that there was a similar absence of evidence that
the child wished the current orders to continue.
106. Notwithstanding the cogency of the submissions of Counsel for the respondent
in reliance upon Stead, and the alternate, but complimentary basis in reliance
upon DL & W, the Court remains reluctantly persuaded that this challenge is
entitled to succeed.
THE OTHER GROUNDS OF APPEAL
107. Given the Court’s conclusion with respect to grounds 1 and 2, it is strictly
unnecessary to consider the remaining challenges to the learned
Federal Magistrate’s exercise of discretion. In deference to the submissions of
Counsel for the parties, however, consideration will be given to those
complaints.  [2012] FamCAFC 191  Reasons Page 23
Ground 3
108. The challenge to the adequacy of the learned Federal Magistrate’s reason for
summary dismissal (ground 3) would probably not succeed, were its fate
necessary to be determined.
109. Why the learned Federal Magistrate decided as she did, is not in doubt, having
regard to her Honour’s reasons for judgment.
110. As this Court’s reasons for its conclusion with respect to grounds 1 and 2
reveal, with respect to her, her Honour misdirected herself as to the test to be
applied, and, to the extent that such misdirection  may, as Counsel for the
respondent submitted, have been immaterial, the inability to find the absence of
a “significant and substantial change in circumstances since the orders were
made in 2010” (par 10 of reasons for judgment), would deny the complaint that
her Honour did not adequately reveal her reasoning process any entitlement to
success.
Ground 4
111. Ground 4 of the Amended Notice of Appeal, which provided:
4. That the learned Federal Magistrate erred in finding that there was no
significant change of circumstance justifying a change to the parenting
orders made on 2 February 2010.
The crux of this ground has largely been dealt with earlier in the course of these
reasons.
112. The submissions on behalf of the respondent in relation to ground 4 succinctly
asserted:
33. In relation to paragraph 34a, the Appellant said that the significant change
was that he had not seen his daughter in 12 months, significantly, “because
the mother has not delivered [O].” [transcript page 4, lines 33-35]
34. The Appellant’s clear assertion was that the Respondent has not complied
with the Court Orders. Her Honour correctly identified during the hearing
that this allegation would be appropriately dealt with by a Contravention
Application.
35. In relation to paragraph 34b, the Appellant relied upon the change in
assessment for Child Support. The Appellant’s child support assessments
were the subject of review by the SSAT and ultimately appeal to the
Federal Magistrate’s Court on a question of law.
36. The Appellant’s argument was not logical. He argued that he was unable to
see spend time with his daughter in accordance with the Orders because of
his child support obligations. However, the Respondent was responsible for
the costs of the child’s travel to Australia twice  per annum and the [2012] FamCAFC 191  Reasons Page 24
Appellant was only responsible for his costs of travel to the United
Kingdom, once per annum. He was under no obligation to exercise the
latter contact if he could not afford to do so. The Appellant proposed that
he be responsible for the costs of travel to facilitate his time spent with [O].
The learned Federal Magistrate addressed this contradiction in paragraph 8
of her Judgment.
37. That Affidavit of the Appellant filed in this Appeal was drafted by his legal
representatives. The Affidavit sets out the evidence that the Appellant
wished to bring before the Court in support of his  establishment of the
Court’s jurisdiction on 28 May 2012. The Affidavit does not assist with a
finding of a change in circumstances to warrant a re-opening of the
parenting issues. From this the Court can infer that there was no practical
disadvantage of any alleged irregularity in the conduct of the proceedings.
38. Therefore, even if this Honourable Court is satisfied that any or all of
grounds 1-3 are made out, Her Honour’s decision was correct and should
not be overturned.
113. The appellant’s evidence before the learned Federal Magistrate was, at best
unclear, at worst confusing, as the learned Federal Magistrate’s reasons for
judgment, and Counsel for the respondent’s submissions suggest. There had,
however, been changes, for whatever reason, which meant that the child had in
fact spent little of the time provided for by the February 2010 orders with the
appellant. Moreover, whilst, necessarily, as Counsel for the respondent
submitted, the Child Support issues fell to be determined via the path suggested
by Counsel in paragraph 35 of her written outline, as Counsel for the appellant
clearly explained, and does not seem controversial, nothing which could occur
within that litigation could result in changes to the parenting orders and, as the
Court understands the position, nothing would change in those proceedings
unless the parenting orders were materially altered.
114. Whilst the appellant did not present his case, at least in a pleaded, or an
evidentiary context, in a way that was “logical” as Counsel for the respondent
correctly submitted, this Court is not persuaded that his assertion that events
subsequent to the February 2010 orders justified revisiting those orders “on the
merits”, was doomed to fail.
115. The Court accordingly, and for reasons earlier referred to, finds substance in
ground 4.
Ground 5
116. Ground 5 asserted:
5. That the learned Federal Magistrate erred in finding that there was little
difference in the parenting orders sought by the father compared with the
parenting orders made on 2 February 2010.  [2012] FamCAFC 191  Reasons Page 25
117. The terms of the orders sought by the appellant, and the affidavit evidence
relied upon by him in support of his application filed 29 March 2012, were well
able to be described in the terms complained of in this ground.
118. The discussion before the learned Federal Magistrate, however, revealed
clearly, the conundrum which presented itself, whatever finding might
ultimately be made with respect to the merits of the matter.
119. Given the Court’s conclusion with respect to other challenges, it is unnecessary
and unhelpful to further consider this ground.
120. Similar observations apply to ground 6 of the Amended Notice of Appeal.
CONCLUSION
121. Regrettably, and notwithstanding that the appellant’s own application, and
evidence in support of it at trial, contributed materially to what this Court has
found to be the learned Federal Magistrate’s error, the appeal will be allowed,
and the application for summary dismissal remitted for re-determination.
122. The respondent is clearly entitled to costs certificates with respect to the
appeal, and the re-hearing of the summary dismissal application pursuant to the
relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
123. The position of the appellant in relations to costs certificates is less clear-cut. In
the court below the appellant contributed materially to his lack of success, as
these reasons have earlier recorded. However, the Court is not persuaded that
the appellant led the learned Federal Magistrate into error. The appeal has been
allowed on the basis of a misdirection by the Court, for which the appellant is
not ultimately responsible. In all the circumstances, the Court concludes that
the appellant too should receive costs certificates for the appeal and the          
re-hearing.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a
true copy of the reasons for judgment of the Honourable Justice Coleman
delivered on 15 November 2012.
Associate:
Date: 15.11.2012