FAMILY LAW – APPEAL – PARENTING – Evidence – Effect of state court judgments in family violence proceedings – Whether issue estoppel arose – Whether judgment of state courts should have been adopted pursuant to s 69ZX – Whether State Court judgements otherwise relevant or of weight where primary judge determining issues of family violence on evidence at hearing.
FAMILY LAW – APPEAL – PARENTING – Evidence – Where the Family Report Writer unable to be cross-examined due to illness – Admissibility of Report – Whether report ought to have been excluded pursuant to s 135 of the Evidence Act – Weight to be attached to report.
FAMILY LAW – APPEAL – PARENTING – Definition of family violence – Whether the primary judge was correct in classifying all of the appellant’s behaviour as family violence – Where appellant destroyed engagement rings – Where limited evidence of circumstances of destruction of rings.
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Error in order that is amenable to correction under the “slip rule” – Where appeal inappropriate prior to exhausting remedies with primary judge.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Adler & Parrow [2024] FedCFamC1A 192
Case
[2024] FedCFamC1A 192
Decision Date
CaseChat Overview and Summary
This appeal concerns the parenting arrangements for a child, following a decision made by the primary judge on 9 February 2024. The primary judge ordered that the child should live with the respondent mother and spend time with the appellant father, with supervised visitation commencing at five-hour periods each week, increasing over time. The appellant appealed this decision, raising several grounds including the weight given to state court judgments, the admissibility of a family report, and the classification of his behaviour as family violence. The court was required to determine whether the primary judge erred in her approach to the state court judgments, the admissibility and weight of the family report, and the classification of the appellant's behaviour as family violence.
The court found that the primary judge did not err in her approach to the state court judgments. The appellant argued that the primary judge should have given weight to the findings of the state courts, but the court held that there was no issue estoppel, the state court judgments were not to be adopted under s 69ZX of the Family Law Act, and they were not otherwise relevant in the context of the evidence presented at the hearing. The court also held that the family report, despite the author not being cross-examined, was admissible and appropriately weighed by the primary judge. The report provided significant evidence of the appellant's coercive and controlling behaviour, which the primary judge found to be family violence. The court further found that the primary judge was correct in classifying the appellant's behaviour as family violence, based on the evidence of his unpredictability, volatility, and efforts to control and isolate the respondent.
In conclusion, the court dismissed the appeal and affirmed the primary judge's orders, with a minor amendment to clarify the visitation periods. The court also ordered the appellant to pay the respondent's costs of $16,735.18. The decision highlights the importance of the primary judge's assessment of evidence and findings in family law proceedings, and the limited role of state court judgments in subsequent family law matters.
Orders
Orders of the court
NAA 55 of 2024
SYC 9242 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR ADLER
Appellant
AND:
MS PARROW
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
21 OCTOBER 2024
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 31 July 2024 be dismissed.
2. Appeal NAA 55 of 2024 be dismissed.
3. The orders of 9 February 2024 be amended pursuant to the slip rule (r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) to insert the words “no less than” into Order 4(a), so as to cause Order 4(a) to read as follows:
For no less than six months, each weekend for five (5) hours with changeovers to be facilitated by a professional supervision service
4. The appellant pay the respondent’s costs fixed at $16,735.18.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
This is an appeal from a parenting decision made on 9 February 2024 determining the parenting arrangements for a child of eight years of age. The primary judge made orders providing for the child to live with the respondent mother and spend time with the appellant father. The time the child spends with the appellant is to commence as five-hour periods each week where the changeovers are supervised by a professional supervisor. After six months, and the appellant completing a behavioural change course, the time is to increase to eight hours per day for six months, followed by further incremental increases until the child is spending every second weekend with the appellant.BACKGROUND The parties separated in April 2018. The appellant was charged with various criminal offences against the respondent which were dismissed in mid-2019. In May 2018, the appellant was admitted to a mental health unit. The appellant did not see the child from August 2018 until December 2019 when he commenced seeing the child using electronic communication. The appellant’s time with the child increased so that by November 2021 he was having overnight time. On 7 May 2022 the appellant refused to return the child to the respondent, until ordered to do so by the Court on 11 May 2022. On 17 May 2022, the Court made orders for the appellant to spend supervised time with the child, which continued until the final hearing. The appellant works sporadically as a handyman and entertainer. The respondent works as an allied health professional. The child is in good health and progressing well at school and appears to have a positive relationship with each of the parties. After a lengthy review of the evidence the primary judge made many specific findings, including:198I am satisfied that the [appellant] engaged in behaviour that was unpredictable and, on occasion, volatile. …202I am left to conclude that the [appellant], by his actions and behaviour, actively undermines the [respondent] and encourages [the child] to do so. 203I have no doubt that the [appellant] is hypervigilant towards [the child] and his safety……215I accept the [respondent]’s evidence that the [appellant]’s persistent behaviour is a source of harassment for her, even if his intentions are focussed on spending as much time as he can with [the child]. 216Viewed together, the behaviour of the [appellant] can be described as coercive and controlling because it caused the [respondent] to feel isolated and harassed, and it undermined her parenting of [the child]. 217The [appellant] … had a practice of recording his interactions with [the child] and the [respondent] in a range of settings. Indeed, they were annexed to his affidavit and readily tendered by him. …223There is probably no more powerful piece of evidence than the pattern of behaviour recordings themselves. I accept the [respondent]’s evidence that she was trying to appease the [appellant] and blamed herself for the [appellant]’s escalating behaviour. I accept the submissions made by the ICL that the videos paint a disturbing picture of the [appellant] as a controlling individual.
Evidence
Evidence Before The Court
The primary judge then gave reasons as to why the orders that her Honour made provided adequate protection for the child whilst enabling the child to continue to have a relationship with the appellant.APPLICATION TO ADDUCE FURTHER EVIDENCE The appellant filed an Application in an Appeal on 31 July 2024 seeking leave to adduce further evidence in the appeal. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives this Court an unfettered discretion to admit further evidence on appeal. As was explained in CDJ v VAJ (1998) 197 CLR 172, the purpose of further evidence on appeal is to demonstrate error, bolster the reasons under attack, or provide material for any re-exercise of discretion. Generally, material that was available to be used at the hearing but was not, should not be readily admitted into and on an appeal, however, this is not an invariable rule, particularly in parenting cases. The first item of evidence is an audio recording of a conversation between the appellant, the respondent, the child, and the paternal grandmother made on the child’s first day of school. At trial, the appellant provided the Court with a transcription of the recording he prepared himself. The transcript of the recording was tendered and marked by the primary judge as Exhibit 6 (counsel for each the respondent and the Independent Children’s Lawyer did not object to the transcript of the recording being tendered: see Transcript 5 May 2023, p.268 lines 36–47). At the trial, the audio recording itself was not tendered. At the hearing of the appeal, the appellant sought to tender the audio recording on the basis the recording shows a “friendly tone” between the parties, which he says the transcript cannot convey. The appellant argues the “friendly tone” demonstrates the parties’ positive communication with one another which supports his position that the parties are able to share parental responsibility. However, the appellant conceded there was nothing significant in the audio recording that is not in the transcript. I am not persuaded to allow the appellant to admit the audio recording of the conversation into evidence, in circumstances where only the transcription was tendered before the primary judge. Secondly, the appellant seeks leave to lead evidence as to the availability of courses of the type the primary judge ordered him to undertake as a pre-condition to increasing his time with the child. This material would have been available at the time of the trial. The parties were on notice that orders were sought for the appellant to undertake a course. There is no adequate explanation of why the evidence was not placed before the primary judge during the trial. In any event, there is no dispute that the appellant has not been able to undertake a relevant course within six months (as appeared to be contemplated by the orders of the primary judge). I am not persuaded to allow the appellant to lead this further evidence on the appeal.GROUNDS OF APPEAL
Decision
Reasons for decision
The appellant has not established that the weight the primary judge placed upon the Family Report was plainly wrong in the context of the findings in this case.(3) EFFECT OF STATE COURT JUDGMENTS Grounds 3, 4, and 9 of the appellant’s (Amended) Notice of Appeal filed 27 May 2024 challenge the approach of the primary judge to the findings of State Courts with respect to conduct of the appellant. Ground 3 addresses the weight the appellant says should have been placed upon those findings. Ground 4 and Ground 9 both address the primary judge’s findings that the appellant committed acts of family violence. In his Summary of Argument filed 27 May 2024, the appellant relies entirely upon his submissions with respect to Ground 4 in support of Ground 9. Ground 33.The trial judge erred in law by giving no weight or too little weight to the findings of the District Court of NSW in proceedings [...] that a Apprehended Domestic Violence Order against the Applicant/Appellant be set aside and that there was no evidence to justify the ADVO [See Judgment para 237 29, 53, 138, 145, 195, 196]((Amended) Notice of Appeal filed 27 May 2024)Ground 44.The trial judge erred in law by making findings that the Applicant /Appellant was responsible for acts of domestic violence in April 2018 by mistaking the facts of the evidence relied upon in Her Reasons despite the clear findings of the District Court of NSW in proceedings [...] that there were no acts of domestic violence by the Applicant/Appellant and despite the fact that the opinions of the author of the 31 August 2022 Family Report were never subjected to cross examination [See Judgment para 29, 53, 138, 145, 195, 196]((Amended) Notice of Appeal filed 27 May 2024)Ground 99. The Trial Judge erred in law in finding that the Appellant/Father committed physical acts of family violence against the mother in April 2018 based on her Honour’s mistaking the facts of the evidence relied upon in Her reasons for Judgment 9 February 2024. [see par 195, 196]((Amended) Notice of Appeal filed 27 May 2024) The police had brought a number of criminal charges against the appellant for assaults upon the respondent. At the same time that the criminal proceedings were heard by the Magistrate, an Apprehended Domestic Violence Order (an “ADVO”) was also sought against the appellant for the protection of the respondent. The Magistrate in the Local Court who heard the case was not satisfied beyond reasonable doubt that the appellant had assaulted the respondent but was persuaded on the balance of probabilities to make an ADVO protecting the respondent. The ADVO was set aside by a District Court judge on appeal. Both Ground 4 and Ground 9 were argued on the basis that the primary judge ought to have accepted the findings of the State Courts, thus preventing the primary judge from making findings of family violence against the appellant. There are three different ways that the judgments of the State Courts could be relevant:(a)If the appellant establishes an issue estoppel, based upon the findings of the State Courts;(b)If the State Court judgments are adopted (in whole or in part) pursuant to s 69ZX of the Family Law Act; or(c)If the State Court judgments are otherwise relevant (as the prohibition upon State Court judgments being placed in evidence by s 91 of the Evidence Act does not apply in parenting proceedings as a result of s 69ZT(1)(c) of the Family Law Act).