Abberley & Clement
[2024] FedCFamC1A 81
•13 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abberley & Clement [2024] FedCFamC1A 81
Appeal from: Abberley & Clement (No 2) [2023] FedCFamC2F 1508 Appeal number(s): NAA 351 of 2023 File number: CAC 2180 of 2019 Judgment of: CHRISTIE J Date of judgment: 13 May 2024 Catchwords: FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Reference by the primary judge to his interlocutory decision in the proceedings without notice to the parties – Where the references to the interim reasons were necessary and apposite – No denial of procedural fairness – Apprehended bias – Where the appellant asserts a fair-minded lay observer would apprehend bias on the part of the primary judge from having relied on earlier adverse findings in the interlocutory decision – Where no specific adverse findings are identified – Adequacy of reasons – Where the reasons chart the pathway by which a conclusion consistent with the evidence was reached – Appeal dismissed – Order for the appellant to pay the respondent’s costs of the substantive appeal in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 68B Cases cited: Bennett and Bennett (1991) FLC 92-191
Spencer & Spencer [2020] FamCAFC 55
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 46 Date of hearing: 6 May 2024 Place: Sydney (via Microsoft Teams) Counsel for the Appellant: Mr Masters Solicitor for the Appellant: Vozella Lawyers Counsel for the Respondent: Ms Davis Solicitor for the Respondent: KJB Law ORDERS
NAA 351 of 2023
CAC 2180 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ABBERLEY
Appellant
AND: MS CLEMENT
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 351 of 2023 is dismissed.
2.The appellant pay the respondent’s costs of the appeal fixed in the sum of $15,000 within 28 days.
3.The application for costs of the Application in an Appeal filed 6 February 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Abberley & Clement has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 29 November 2023.
The appellant does not appeal against Order 1 which provides that the mother have sole parental responsibility (which was made by consent) and Order 2 which provides that the child live with the mother. Pursuant to the appellant’s Further Amended Notice of Appeal filed 18 March 2024, the appellant places the orders appealed against into two categories.
“Category 1” comprises Order 3, 4, 5 and 7. Order 3 provides that the child spend no time with the father. Orders 4 and 5 relate to the child obtaining an Australian passport. Order 7 provides that the father is restrained by various injunctions pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), including from approaching the mother and/or child and locating or attempting to locate the whereabouts of the mother and/or child.
“Category 2” comprises Order 6, 8, 9, 10-20. Order 6 provides that the child’s Australian passport be held by the mother. Orders 8 and 9 concern injunctions. Orders 10-12 relate to assisting the child with being informed of the identity of the appellant as his biological father. Orders 13-18 relate to the father being permitted to send the child an email or parcel on two occasions each year. Order 19 relates to the mother providing the father with information regarding the child on two occasions each year. Order 20 relates to the facilitation of the communication to and about the child.
The respondent sought that the appeal be dismissed. The Independent Children’s Lawyer filed a Submitting Notice on 5 February 2024 and did not participate in the appeal.
THE TRIAL
The trial before the primary judge related to parenting orders for the parties’ four-year-old child, X (born 2019). X was born after the relationship between the parents had broken down. Pursuant to an initial set of interim orders, X spent time with the father for 15 minutes in a supervised setting in April 2021. This is the only time the child and father have spent together.
The Court heard and determined an interim application on 20 October 2021. The resulting orders permitted the mother to change the child’s place of residence, ordered the father undertake chain-of-custody hair follicle testing to demonstrate abstinence from illicit substances for six months, and provided for the resumption of time should the tests be negative for illicit drugs for six months. The father never completed a negative drug test between the interim hearing and the final hearing.
The final hearing took place over two days in July 2023 with final submissions received in September 2023 and judgment delivered on 29 November 2023.
The primary judge was concerned with an assessment of the risk posed by orders which provided for time between the child and the father given findings concerning the father’s drug use, his harassment and abusive conduct towards the mother, his failure to engage psychological supports and, most significantly, the impact of the mother’s anxiety on the mother, her parenting and the child should the child spend time with the father.
THE APPEAL
Some preliminary comments are necessary. An appeal is not a vehicle in which to express dissatisfaction with the outcome unless it is accompanied by legal error.
An appeal is not an opportunity to restate unsuccessful arguments which have been heard and rejected by the primary judge unless accompanied by legal error.
This appeal was devoid of merit and for the reasons which follow will be dismissed.
Ground 1
Ground 1 is expressed as follows:
1.The Appellant was denied procedural fairness by the primary judge not giving notice of his intention to rely on evidence that he read on 20 October 2021 as part of an interim hearing.
a.At the interim hearing on 20 October 2021, the primary judge specifically stated that he was making no findings of fact for the purposes of the final hearing.
b.that the primary judge failed to identify which evidence or findings of fact he was relying on for the purpose of the final hearing.
This ground asserts that the primary judge was required to inform the appellant that he proposed to make reference to the interlocutory decision of 20 October 2021 (“the interim reasons”) and a failure to provide that notice constitutes a denial of procedural fairness.
The primary judge made several references to the interim reasons in the judgment the subject of appeal and it is useful to set the significant references out here:
3.The matter is essentially one of evaluating closely various risks. Many of the risk factors were considered in the interim judgment. They included the Father’s drug-taking during the relationship (in which the Mother participated), his drug-taking post the relationship and his failure to undertake drug-testing as requested by the Independent Children’s Lawyer (“the ICL”), his abuse of the Mother during and after the relationship and stalking of the Mother. The Mother’s acute anxiety arising from the relationship with the Father endures, even while undergoing regular counselling from her psychologist, and is “triggered” even by mention of the Father’s name. The Mother’s anxiety is heightened or further “triggered” by the prospect (or even the thought) of [X] spending any time, or having any indirect contact, with the Father. The Mother further fears the risk of psychological pressure, potentially leading to abuse, of [X] should he start spending time with the Father. And finally, given [X]’s young age, the Mother fears the child, inadvertently, giving information to the Father that would lead him to learn of the Mother’s location. This could lead, in the Mother’s view, to the Father returning to stalking her as he had done in the past, shortly after the relationship ended.
(Emphasis added)
…
[Footnote] 61 Again, I note that many of the competing allegations relating to drug use and domestic violence were set out in detail in the earlier interim judgment. I will not repeat them here but the parties (and anyone else reading these reasons) should have regard to what the interim reasons contain, and my comments found there. They remain apposite here, at least for the purposes of context and history.
(Emphasis added)
…
158.In the light of (a) what was previously addressed in the interim judgment in this matter (here, primarily regarding matters of history and context, especially regarding the Mother’s anxiety concerning contact with the Father), and (b) what has already been commented on in the course of these reasons, I can be somewhat summary in my comments here…
(Emphasis added)
…
164.Finally, there is significant case-law that acknowledges and confirms the central link between the welfare of the “primary-care” parent and the welfare of the child. Conversely, the same general case-law confirms the risk to a child whose primary-care parent suffers significant anxiety and stress as a result of conduct of the other parent. Such is plainly the case here for the reasons set out in the interim judgment, and on the basis of the evidence of Dr [Q] and Ms [HH] here. Put another way, and noted earlier in these reasons, I do not accept the Father’s submissions to the effect that the Mother was either feigning her distress and anxiety or exaggerating it. Such a submission in the light of the history of the matter effectively (a) denies the large amount of evidence, completely adverse to the Father and of his own making, set out by the Court in the interim judgment, and (b) the evidence of both experts (Dr [Q] and Ms [HH]). Such a submissions further undercuts any possible trust the Mother could have in the Father.
(Emphasis added)
…
169.Those parts of the statutory edifice that relate to [the historical] family violence are, again, well documented in the interim judgment and need not be repeated here.
The appellant did not appeal the 20 October 2021 orders. There is no suggestion that the primary judge made findings unavailable to him in the interim reasons. In fact, this fact is recited in the appeal ground itself.
It is not unusual for a judge to hear and determine an interlocutory application and subsequently hear and determine the final application. If there were some evidence that the conclusions reached in the interim reasons about questions of fact relevant to the determination of the final proceedings had been superseded by relevant admissible evidence which placed those conclusions in issue at the time of the final hearing, then the appellant may have some arguable basis to advance the ground of appeal, in reliance upon a denial of procedural fairness. That is not the case here.
The primary judge’s interim reasons were focused, appropriately, on the uncontroversial or agreed facts. The references to the interim reasons were necessary and apposite since both the mother’s counsel and the ICL had submitted that the appellant’s failure to address matters of concern which had been raised in the interim reasons was central to the Court’s assessment of the risks to the child posed by the appellant’s final orders sought. No error is demonstrated.
Ground 2
Ground 2 is expressed as follows:
2.The Appellant was denied procedural fairness by the primary judge in that the conduct of the primary judge gave rise to a reasonable apprehension of bias.
a.The primary judge made findings, including adverse findings against the appellant, in the interim judgment and having relied on findings in the final hearing it would appear to a fair-minded lay observer that the primary judge might not have brought an impartial mind to the resolution of the hearing.
The legal test is well known and was stated by the Full Court in Spencer & Spencer [2020] FamCAFC 55 at [24]:
…the enquiry requires two steps: (1) the identification of what it is said might lead the judge to decide a case other than on its merits and (2) there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits…
It is difficult to understand what conduct by the primary judge has purportedly given rise to a claim of denial of procedural fairness on the basis of apprehended bias. The appeal ground refers to the primary judge relying upon earlier adverse findings. Neither the written nor the oral submissions on behalf of the appellant identified the specific adverse findings.
If a party asserts a denial of procedural fairness on the basis of apprehended bias then he or she is required to make the application for the judicial officer to recuse him or herself at the time which the reasonable apprehension of bias arises. Here it is asserted on behalf of the appellant that the reasonable apprehension of bias arises out of the primary judge relying on the interim reasons – a fact which only became known at the time of the making of the final orders.
True it is that the final reasons for judgment contain reference to the interim reasons but this, without more, does not establish that a fair-minded lay observer would conclude that the primary judge may not have brought an unbiased mind to the task. The primary judge heard both cases. The primary judge determined both cases on the basis of the evidence before him on each occasion. No error is established.
Grounds 3 and 6
Ground 3 asserts that the primary judge “failed to provide adequate reasons for making Category 1 Orders”. Ground 6 asserts that the primary judge “gave no, or inadequate reasons for making the category 1 orders”.
These two separate grounds appear to assert the same error and will be considered together.
These orders effectively create the no-time regime. The Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266, applying the test in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 has said that reasons will be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
Neither apply here.
The reasons of the primary judge squarely address the central issues, namely whether or not the making of an order for time between the father and the child would expose the child to risk, whether or not that risk could be ameliorated and whether or not, having regard to the mother’s status as the uncontested primary caregiver, it was appropriate to take into account the impact of the proposed orders on her health and wellbeing.
Contrary to the appellant’s contention, the primary judge found:
161.…the severity of the Mother’s anxiety and trauma arising from the relationship with the Father cannot be doubted…
162.Secondly, while there was some, albeit quite limited, insight shown by the Father into his past actions towards the Mother, his failure to undergo drug testing as requested on multiple occasions by the ICL, did him no good service at all… The lack of evidence also from any treating counsellor or psychologist was another and somewhat troubling omission in the Father’s evidence.
…
164.Finally, there is significant case-law that acknowledges and confirms the central link between the welfare of the “primary-care” parent and the welfare of the child. Conversely, the same general case-law confirms the risk to a child whose primary-care parent suffers significant anxiety and stress as a result of conduct of the other parent. Such is plainly the case here for the reasons set out in the interim judgment, and on the basis of the evidence of Dr [Q] and Ms [HH] here. Put another way, and noted earlier in these reasons, I do not accept the Father’s submissions to the effect that the Mother was either feigning her distress and anxiety or exaggerating it. Such a submission in the light of the history of the matter effectively (a) denies the large amount of evidence, completely adverse to the Father and of his own making, set out by the Court in the interim judgment, and (b) the evidence of both experts (Dr [Q] and Ms [HH]). Such a submissions further undercuts any possible trust the Mother could have in the Father.
…
168.The other considerations set out in sub-paragraphs (c), (ca), (d) – (g), have no application here for the reason just noted. There is no relationship between child and Father. There has been no relevant relationship since the child was born. There is effectively zero communication between the Mother and the Father, which has been the status quo for the bulk of [X]’s young life. Such communication as there once was, which is set out in graphic detail in the interim judgment, was outrageous, scandalously offensive, and utterly inappropriate by the Father to the Mother. That communication and other matters set out in that earlier judgment, have essentially and understandably led to the completely fractured relationship between the parties, and also to the Mother’s extremely anxious, tremulous existence regarding anything to do with the Father, including the prospect – at any time – of [X] coming into contact with the Father.
Those reasons clearly chart the pathway by which the primary judge reached a conclusion which was consistent with the evidence and supported the orders. No error is demonstrated.
Grounds 4 and 5
Ground 4 asserts that the primary judge “failed to identify any risk to the child by having time with [the] appellant ”. Ground 5 asserts that the primary judge “failed to consider how any risk to the child may be addressed or managed”.
These grounds will be dealt with together as they raise related complaints.
It was precisely because of the risks referred to above that the primary judge made the orders the subject of appeal. The most significant (but not only) risk which is plain from the reasons is “the risk to a child whose primary-care parent suffers significant anxiety and stress as a result of the conduct of the other parent” at [164].
Ground 4 is not established.
Ground 5 sits uncomfortably with the manner in which the appellant ran both his case at trial and this appeal. Counsel for the appellant submitted in his final written submissions that “[t]here is no evidence that the father is a risk to [X]” and, in the written Summary of Argument in the appeal, purported to rely on a conclusion at [64] of the Family Report to support this conclusion. The difficulty is twofold – firstly the evidence as a whole did identify risk to the child which went beyond the possibility of either kidnapping or a physical assault on the child and, secondly, the primary judge found at [161] that the only identified management technique (supervision) was not sufficient to address the identified risk. It follows that the appellant has failed to establish error as asserted in Ground 5.
Ground 7
Ground 7 asserts that “[n]o reasonable decision-maker could have made the category 1 orders having regard to the evidence that was before it”.
The fact that a differently constituted court may have made a different order, given more weight to different evidence, or less weight to other evidence is not material. This ground relies upon persuading this Court that the primary judge’s conclusion was no reasonable exercise of discretion. It follows from my disposition of the above grounds that this ground must fail. Here, the primary judge made findings about parental capacity of both parents. Here, the primary judge made findings about the father’s failure to address long-standing concerns about chronic drug use and failure to abide by interim orders for drug testing. Here, the primary judge took into account the seriously abusive nature of the interactions of the father with the mother during her pregnancy. Here, the primary judge took into account the failure of the appellant to place before the court evidence from his treating psychologist. The resulting orders are supported by those findings. There is no merit in the ground.
COSTS
The appeal will be dismissed. In those circumstances the respondent sought her costs in the sum of $25,227.80. Those costs were inclusive of the costs of the application in an appeal but excluded the sum of $424.49 for “reserved judgment”.
In effect there are two separate applications to consider. The first relates to the costs reserved by the Appeals Judicial Registrar which relate to the respondent’s Application in an Appeal filed 6 February 2024 and the second relates to the costs of the appeal itself.
The applications need to be considered separately.
Reserved costs
I begin by considering whether the circumstances justify departure from the usual rule. The Application in an Appeal did not result in the making of an order for security for costs but could not be categorised as wholly unsuccessful since it led the appellant to file a Further Amended Notice of Appeal and Further Summary of Argument both of which were relied upon at the hearing of the appeal.
The evidence suggests that, overall, the financial position of the appellant (income and assets) is stronger than that of the applicant for costs. The affidavit material suggests that the appellant’s counsel was appearing on a pro bono basis.
Both parties made offers of settlement in an attempt to resolve the Application in an Appeal.
I have formed the view that, on balance, there are no justifying circumstances which warrant departure from the usual rule in respect of the Application in an Appeal.
Costs of the appeal
The appeal has been dismissed. The appellant was given some warning of the potential for this outcome in the decision of the Appeal Judicial Registrar in the Application in an Appeal delivered 11 March 2024.
The respondent should have her costs of the appeal which was wholly unsuccessful.
I have had the opportunity to review the scale of costs prepared on behalf of the respondent. It is appropriate to excise those entries which relate to the security for costs application and those which are not party/party. On that basis, doing the best I can, counsel’s fees total approximately $12,627.16 and the solicitor’s $3,711.97. I conclude that a proper figure to fix is $15,000. Accordingly, I will order that the appellant pay the respondent’s costs in that sum within 28 days.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 May 2024