Adler & Parrow
[2024] FedCFamC1A 192
•21 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Adler & Parrow [2024] FedCFamC1A 192
Appeal from: Adler & Parrow (No 2) [2024] FedCFamC2F 48 Appeal number(s): NAA 55 of 2024 File number(s): SYC 9242 of 2020 Judgment of: RIETHMULLER J Date of judgment: 21 October 2024 Catchwords: 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.
Legislation: Commonwealth Native Title Act 1993 (Cth) s 86
Evidence Act 1995 (Cth) ss 55, 63, 67, 79, 91, 135, 137
Family Law Act 1975 (Cth) ss 4AB, 69ZT, 69ZX, 117
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 16
Cases cited: Adams & Peters [2009] FamCA 972
Adler & Parrow [2023] FedCFamC2F 1758
Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
B & J [2009] FamCAFC 103
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Daily & Daily (No 2) [2023] FedCFamC1A 122; (2023) FLC 94-151
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588;[2011] HCA 21
Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 374 ALR 448; [2019] FCAFC 177
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackson v Goldsmith (1958) 81 CLR 446; [1950] HCA 22
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Neowarra v Western Australia (No 1) (2003) 134 FCR 208; [2003] FCA 1399
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132; [2017] HCA 28
In re B (Case Proceedings Issue Estoppel) [1997] Fam 117
Schorel & Schorel (1990) FLC 92-144; [1990] FamCA 58
Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8
Steven Moore (a pseudonym) v The King [2024] HCA 30
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Wall Street Developments Pty Ltd v Egerton [2010] QDC 44
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Zan & Wen (No 2) (2023) FLC 94-513; [2023] FedCFamC1A 130
Number of paragraphs: 85 Date of hearing: 13 & 14 August 2024 Place: Parramatta Counsel for the Appellant: Litigant in person Counsel for the Respondent: Mr Havenstein Solicitor for the Respondent: Seacliff Family Law Counsel for the Independent Children's Lawyer: Ms Cantrall Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
NAA 55 of 2024
SYC 9242 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the Adler & Parrow pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
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.
The primary judge was not satisfied on the evidence that a number of other significant allegations were proved to the requisite standard, including claims that the appellant:
(a)Had lacerated the respondent’s hand with car keys (at [194]);
(b)Made threats of harming the respondent to the child (at [197]);
(c)Attempted to isolate the respondent from her own family (at [214]); and
(d)Was cruel to animals (at [224]).
The primary judge was persuaded that the appellant did not present a risk of violence to the child, however found that:
238Having considered all the evidence before me, I have concluded that the [appellant] has behaved erratically and aggressively on occasions when under stress. On the occasions outlined, he appeared unable to regulate his emotional responses to events nor express himself clearly. He has exposed [the child] to the parental conflict. On occasion he has coached or manipulated [the child] to say or behave in a manner that [the child] perceives will find favour with the [appellant]. This conduct has resulted in [the child] being placed at unacceptable risk of psychological harm.
Having made these findings, the primary judge identified that:
258 [The child] needs to be protected from several unacceptable risks:
(a) The [appellant]’s inability to manage his sometimes erratic or confused behaviour when under stress, particularly if the stress arises over an extended period.
(b) The [appellant]’s need to control and/or coerce [the child].
(c) The [appellant]’s lack of insight into the impact of his behaviour on [the child].
(d) [The child]’s exposure to parental conflict.
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
The appellant sets out nine grounds of appeal. It is convenient to deal with the grounds under five topics.
(1) THE PROCEDURAL FAIRNESS GROUNDS
Ground 5 – Whether the primary judge restricted the cross-examination of the respondent
5.The trial judge erred in law by denying procedural fairness to the Applicant/Appellant by refusing the Applicant /Appellant the right to cross examine, or further cross examine, the Respondent on
5 May2 March 2023 despite the fact that the cross examination of the Respondent by the Applicant's previous counsel had not concluded.((Amended) Notice of Appeal filed 27 May 2024)
The appellant was represented by solicitors and counsel at the final hearing. On the third day of the trial, the appellant was represented by his solicitor as his counsel was not available. The previous day his counsel had completed the substance of the cross-examination of the respondent. When the solicitor sought to cross-examine the respondent, there was an objection to a second lawyer cross-examining (relying upon GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15). There was no adjournment application. The objection was resolved by consent on the basis that the respondent would not take any objection that the appellant had not directly put that the respondent’s allegations of family violence were false. The events gave rise to no denial of procedural fairness. This ground is without merit.
Ground 7 – Adjournment application
7.The trial judge erred in law and denied procedural fairness to the Applicant/Appellant by refusing an adjournment application by the Applicant/Appellant on 5 May 2023 which resulted from the unavailability of his legal aid counsel
on that day. [Para 242 of Judgment].((Amended) Notice of Appeal filed 27 May 2024)
On the last day of the hearing, prior to final addresses, the appellant’s counsel sought an adjournment of the trial on the basis that the appellant had not had sufficient time to review the transcript (which had been provided four days earlier) (Transcript 5 May 2023, p.252 lines 27–30).
When making submissions on the adjournment application, counsel for the appellant foreshadowed that the appellant would withdraw his instructions if the adjournment were refused, whilst properly making clear that it was not counsel’s intention to improperly pressure the primary judge, saying:
COUNSEL:I can indicate to your Honour that the second aspect of my instructions at the present time are that if – and I don’t say this to hold a gun over your Honour’s head – if the application for an adjournment is unsuccessful, then my understanding is that I will be without instructions.
(Transcript 5 May 2023, p.250 lines 16–19)
The primary judge refused the adjournment application. The appellant then withdrew his instructions to his counsel, who was granted leave to withdraw.
The principles of procedural fairness require that parties be provided with a reasonable opportunity to be heard. Four days was a reasonable time to review the transcript of the trial during which the appellant and his representatives were present. There is no question that the appellant had been given a reasonable opportunity to be heard on that day. The primary judge considered the relevant matters and came to a conclusion that was open to her Honour.
The appellant’s argument that the primary judge caused the loss of his legal representatives is mere sophistry. The appellant chose to withdraw his instructions to his legal representatives at that point in the trial.
As the next phase of the trial was final submissions, the primary judge directed that the respondent and the Independent Children’s Lawyer make their addresses and then permitted the appellant two weeks to make written submissions (noting that the Court had provided him with a copy of the transcript of the evidence at the trial). Providing the appellant with this indulgence ensured, beyond any doubt, that the appellant was accorded procedural fairness in the conduct of this aspect of the trial.
For these reasons Ground 7 is without merit.
(2) THE USE OF THE FAMILY REPORT
At the hearing it became clear that the Family Report Writer had become ill and was not expected to recover sufficiently to ever give evidence in the matter, even if the final hearing was adjourned (Adler & Parrow [2023] FedCFamC2F 1758 at [9] and [10]). The appellant argued that the Family Report should not have been admitted into evidence, and alternatively, that it should have been given very little weight as the Family Report Writer could not be cross-examined to test the evidence (at [17]). The primary judge concluded that the appropriate course was to admit the Family Report, giving brief ex tempore reasons: see Adler & Parrow [2023] FedCFamC2F 1758. Her Honour noted that careful consideration would need to be given to the weight to be attached to the Family Report and analysed the Family Report in detail at various places in the judgment.
Ground 2 – Whether the Family Report should have been admitted into evidence
2.The trial judge erred in law in denying procedural fairness to the Applicant/Appellant by refusing the Applicant/Appellant’s application that another Family Report be obtained to replace the Family Report of [Mr B] dated 31 August 2022
[Judgment paras.242).due to wishing to cross examine [Mr B] on his report and [Mr B] not being available for cross examination.((Amended) Notice of Appeal filed 27 May 2024)
In his Summary of Argument filed 27 May 2024, the appellant makes clear that he also intended this ground to challenge the primary judge’s decision to admit the Family Report into evidence. As the appellant is unrepresented, I will consider the ground on this basis.
The Family Report was admissible in the parenting proceedings as a result of s 69ZT of the Family Law Act 1975 (Cth) removing the prohibition against hearsay in the Evidence Act 1995 (Cth). No application was made to the primary judge pursuant to s 69ZT(3) of the Act for orders that the provision not apply with respect to this evidence.
Whilst the evidence was admissible it was open to the primary judge to refuse to admit the evidence for one of the reasons set out in s 135 of the Evidence Act, which provides as follows:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Unfortunately, the primary judge received little assistance on this issue. The objection was argued on general principles, without reference to the legislative provisions. The submissions by counsel for the appellant really went no further than referring to the inability to cross-examine the Family Report Writer: see Transcript 1 May 2023, p.4 line 43 to p.5 line 14. However, further submissions were made by the appellant after he chose to become unrepresented.
On appeal the determination by the primary judge must be reviewed on the “correctness” standard and not the principles applicable to discretionary decisions: see Steven Moore (a pseudonym) v The King [2024] HCA 30 (with respect to the analogous provision at s 137 of the Evidence Act 1995 (Cth)).
The Family Report Writer had interviewed both parents and reviewed a large number of relevant documents. The Family Report Writer’s evidence was probative. It was not suggested that there was any real challenge to the credibility of the Family Report Writer. The appellant accepted “the general gist” of the Family Report where it recounted his interview with the Family Report Writer: see Transcript 28 February 2023, p.80 lines 36–37.
The appellant relied upon statements of the Full Court in Hall and Hall (1979) FLC 90-713 to the effect that it would be surprising if cross-examination of a report writer were not permitted “on proper grounds”. However, the primary judge did not refuse to permit cross-examination as this was not a case where cross-examination of the Family Report Writer was possible. The inability to cross-examine the Family Report Writer, of itself, cannot be sufficient to satisfy s 135 of the Evidence Act, as both s 69ZT of the Family Law Act and s 63 of the Evidence Act contemplate that hearsay evidence may be admitted. As the High Court said in Steven Moore (at [32]): “[w]ithout more, the inability to cross-examine could not justify the exclusion of such evidence, as otherwise the power of exclusion would swallow the exception”.
In further submissions made by the appellant, after he had chosen to be unrepresented, many matters of a general nature were identified, such as:
(a)The Family Report had not been updated to include references to material obtained after the Family Report had been prepared (Transcript 5 May 2023, p.276 lines 26–28);
(b)The child had not been interviewed (Transcript 5 May 2023, p.277 lines 7–8);
(c)The precise nature of the “caution” that the Family Report Writer recommended if a family member was found to be suffering a cognitive disease was not defined in the Family Report (Transcript 5 May 2023, p.277 lines 18–19).
These matters all go to the weight that should be placed upon the Family Report. The appellant did not identify any specific prejudice that would flow from being unable to cross-examination when he could rely upon these issues in submissions as to weight.
The appellant pointed to a comment by police officers (in the police records) that had been deleted following a complaint by him to the Commissioner of Police. The deleted comment was summarised by the Family Report Writer as being to the effect that officers had formed the view that the appellant “may be pushing [the child] into making false reports to police for Family Law Court benefits” (Family Report dated 31 August 2022, paragraph 98). Whilst this comment was noted by the Family Report Writer, it is clear that the Family Report Writer did not simply rely upon the police’s comment, but took the time to consider the events and to view the video recordings of the child’s interview with the police. The Family Report Writer concluded that the “concern was that this writer was unable to find any reason after viewing the interview of 8 May 2022 as to why [the child] should have been put through the process for a second time as he had already been interviewed prior”: see Family Report dated 31 August 2022, paragraph 208. It does not appear that the deleted comment was a matter of any significance to the Family Report Writer in forming his views.
The appellant also complained that the evidence given by the respondent at the trial was inconsistent with the version she recounted to the Family Report Writer concerning threats to hit a ring on her finger with a hammer (Transcript 5 May 2023, p.277 lines 24–27). If there was such an inconsistency it could have been relied upon by the appellant when making submissions at the conclusion of the trial.
The Family Report made reference to a psychological report which was obtained in 2020 in relation to Local Court proceedings where an apprehended domestic violence order (“ADVO”) was set aside. The appellant claims that the Family Report Writer misquoted the psychological report: see the appellant’s Summary of Argument, paragraph 1.16. However, there was no issue raised at trial concerning the references to this report. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51] Gleeson CJ, McHugh and Gummow JJ explained that:
51… It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
As this issue was not raised at trial and could have been the subject of specific evidence, it is not appropriate for it to be relied upon on appeal.
In other submissions the appellant argued that the Family Report Writer relied upon material that the primary judge ultimately disregarded. This is an evidentiary issue that arises in many cases where experts rely upon a large volume of material to form an opinion. These issues go to the weight to be placed upon the opinion as s 79 of the Evidence Act does not specifically include what was formerly referred to as the “basis rule”: see Neowarra v Western Australia (No 1) (2003) 134 FCR 208 at [22]–[38] and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
The appropriate course, which was taken by the primary judge, was to consider the weight to be placed upon the opinion evidence of the expert, in light of the findings of fact ultimately made at the trial.
The probative value of the Family Report was not “substantially outweighed” by one of the dangers listed in s 135 of the Evidence Act. The appellant has not established error on the part of the primary judge in admitting the Family Report into evidence.
Adjournment application argument
The appellant argued that the primary judge erred in failing to grant him an adjournment after admitting the Family Report into evidence. The appellant did not make an application to adjourn the proceedings for the purpose of obtaining another Family Report. At its highest, during submissions concerning the admissibility of the Report, the appellant’s counsel said, “it may be that the appropriate course is to commission a new family report, as regrettable as that may be” (Transcript 1 May 2023, p.5 lines 6–10). When the admissibility of the Family Report was addressed again (after the appellant withdrew his instructions to counsel), no application was made for an adjournment to obtain a further report (Transcript 5 May 2023, p.276–278). In the absence of a clear application for an adjournment, it cannot be said that the primary judge erred in failing to grant an adjournment. This claim is not the subject of a ground of appeal and is without merit.
Ground 1 – Weight to be accorded to the Family Report
1.The trial judge erred in law in placing
anytoo much, or any weight on the Family Report of [Mr B] dated 31 August 2022 when that report contained demonstrably erroneous material and untested opinions and the author of the Family Report was not made available for cross examination at any time despite the father wishing to challenge [Mr B]’s report through cross examination [See Judgment at paras 7,9,13,14, 16, 17,18, 19, 20, 24, 28, 29 to 39, 244 , 246, 247, 25, 251, 252, 254, 262, 287a].((Amended) Notice of Appeal filed 27 May 2024)
The function of the appeal court is “not to offer a second opinion” as “[i]t cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial judge” see Sharman v Evans (1977) 138 CLR 563 at 565. In Gronow & Gronow (1979) 144 CLR 513, Stephen J said (at 519):
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
The weight or importance given to evidence is a matter quintessentially for the primary judge unless an appellant can show that the primary judge was “plainly wrong”: CDJ v VAJ (1998) 197 CLR 172 at 230–231, per Kirby J.
The primary judge discussed the weight to be placed upon the Family Report at [28]–[39] of her reasons, identifying the arguments put forward by the appellant, and at times referred to her own findings (on the evidence at trial) matching various conclusions of the Family Report Writer. The primary judge then considered which parts of the Report were uncontroversial, such as the Family Report Writer’s observations of the parents with the child and the appellant’s acceptance that the Family Report generally accurately recorded what had been said in interviews (at [35]).
The primary judge made careful findings of fact, independent of the evidence of the Family Report Writer with respect to the events of 7-8 May 2022 (at [200]–[211]) discussed above at [32]. The primary judge also specifically addressed the change in the police records (at [233] and following) concluding:
238Having considered all the evidence before me, I have concluded that the [appellant] has behaved erratically and aggressively on occasions when under stress. On the occasions outlined, he appeared unable to regulate his emotional responses to events nor express himself clearly. He has exposed [the child] to the parental conflict. On occasion he has coached or manipulated [the child] to say or behave in a manner that [the child] perceives will find favour with the [appellant]. This conduct has resulted in [the child] being placed at unacceptable risk of psychological harm.
239The Court cannot take steps to mitigate the consequences of that family violence on [the child]. But I must determine what risks presently confront [the child]. While it has been five years since the [respondent] has complained that the [appellant] has engaged in physical violence and destructive behaviour, I was left concerned about the [appellant]’s ability to manage his behaviour, especially his impulse control, when he is tired or under stress and particularly if [the child] is in his care for an extended period.
The appellant claims that there were mistakes made by the Family Report Writer when recounting details from a psychology report from 2020, however this was not raised at trial (as discussed above). The appellant’s recent attendance upon a psychologist, Mr C (for twelve sessions by the time of the hearing), was taken into account by the primary judge (at [253]). Whilst there was no evidence as to the appellant’s use of medication after 2019, it was open to the primary judge to assume the state of affairs was continuing: if this was not the situation, evidence to the contrary could have been led by the appellant to show that he had ceased taking medication.
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 3
3.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
23729, 53, 138, 145, 195, 196]((Amended) Notice of Appeal filed 27 May 2024)
Ground 4
4.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 Reason
sdespite 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 9
9. 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).
For the appellant to establish that an issue estoppel arose it was necessary to demonstrate:
(a)That the previous proceedings were between the same parties (or at least their “privies”); and
(b)That specific findings that were made were necessary for the determination of the previous proceedings.
(See generally Blair v Curran (1939) 62 CLR 464 at 531 and Jackson v Goldsmith (1958) 81 CLR 446 at 466-467)
If the appellant established an issue estoppel at common law, the Court is not bound by the issue estoppel when determining parenting cases (see Schorel & Schorel (1990) FLC 92-144; Adams & Peters [2009] FamCA 972; B & J [2009] FamCAFC 103), although it remains open to a trial judge to rely on the issue estoppel: see the detailed discussion by Hale J (as her Honour then was) in In re B (Case Proceedings Issue Estoppel) [1997] Fam 117 at 128. For example, in some cases there may be no purpose served by re-hearing the evidence and cross-examination on an issue in the subsequent proceedings, having regard to the evidence and reasons before the previous court and the considerable burden upon litigants of traversing an issue again (particularly those who have been victims of violence).
Whether there was privity between the prosecutor and the respondent in the State Court proceedings, such that an issue estoppel may arise between the appellant and respondent, was not raised before the primary judge. The proceedings in the State Courts, to the extent that they were a prosecution for criminal offences, were not proceedings between the same parties as the present application. The police prosecutor sought an ADVO for the benefit of the respondent, however it is unclear what role the respondent played in the conduct of that case beyond being a prosecution witness in the criminal proceedings. There was no evidence that the police prosecutor was, in substance, acting on the respondent’s behalf when seeking the ADVO. On the material before the primary judge the appellant had not established that the prosecutor of the ADVO proceedings was either the respondent or her privy.
The Local Court Magistrate was unable to be satisfied beyond reasonable doubt that various offences had been committed yet was persuaded to make an ADVO (presumably pursuant to s 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). The Magistrate’s reasons do not set out any specific findings of fact on any of the issues, only making a general finding that he was not satisfied beyond reasonable doubt as to the claims with respect to the criminal charges. With respect to the ADVO, after being reminded by the prosecutor that the ADVO application was pending, his Honour said:
Look I’m prepared to consider another order for 12 months. There’s already been one subsisting on an interim basis for 12 months and I think on the balance of probabilities I can find the complaint established on the evidence, on the same evidence there. I’ve already dismissed the criminal charge of not come to [sic] the criminal standard of proof.
(Local Court of New South Wales, Transcript ... July 2019, p.35 lines 29–33)
The appellant’s appeal against the making of the ADVO order by the Magistrate was allowed by a District Court Judge. The District Court Judge’s reasons are also very brief. The District Court Judge commenced his reasons by stating “This is an appeal against conviction in relation to an ADVO”, before being corrected by counsel. The District Court Judge, after briefly summarising the proceedings before the Local Court, found:
The evidence, however, that was the main basis it seems for that view was, as I have indicated, the evidence of the main witness whose evidence was not accepted to the standard that the various offences could be proved beyond reasonable doubt. Not surprisingly, after a review of the evidence of [a former spouse of the appellant], the material that was contained in the exhibits tendered one could clearly see that whilst there may have been some concern that the person of interest or that is [the respondent] might have been the person who required the ADVO it is hard to see how that possibly could be the case when the form of the arguments that were raised in relation to the other offences were all rejected.
(District Court of New South Wales, Transcript ... November 2019, p.2)
The reasons of the District Court Judge are brief and difficult to follow. They appear to confuse the different standard of proof for the ADVO application with the criminal law prosecution for offences. The reasons do not set out any particulars of the basis upon which the ADVO was sought, nor any specific findings of fact. For example, it may be that the application was unsuccessful as the State Courts had not been persuaded that the respondent was in fear at the date of the hearing (a necessary element under the state legislation): see Adams & Peters [2009] FamCA 972 at [149]–[151]. Arguably, the reasons are inadequate as they fail to explain the reasons for the assessment of the evidence: see DL v The Queen [2018] HCA 26 at [130] - [131]. However, crucially, as was said by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363 at [60]:
[60] In general, disbelief in a witness's evidence does not establish the contrary [Hobbs v Tinling (C T) and Co Ltd [1929] 2 KB 1 at 21 per Scrutton LJ]. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way [Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 per Lord Brandon of Oakbrook]:
[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.
A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings.
On the material before the primary judge, the appellant had not established a finding of fact upon which an issue estoppel may arise.
The appellant assumed there was an issue estoppel and argued that the primary judge made two errors in determining whether the appellant should be able to rely upon an issue estoppel. I will address with this argument, in the event that I have erred and there is an issue estoppel.
The primary judge noted that the main focus of the State Court proceedings was primarily criminal charges (at [195(a)]) and that her Honour had additional evidence before her (at [195(b), (e)]). It was apparent that the allegations of violence by the appellant were significant issues when considering the parenting orders and that the ADVO application had not been prosecuted in the Local Court by the respondent or her lawyers.
The appellant points to two of the factors that the primary judge took into account when declining to rely on an issue estoppel that were erroneous. First, the State Magistrate’s reference to the absence of corroboration (when outlining the state of the evidence) did not show that he had impermissibly imposed a requirement of corroboration. Merely noting the absence of corroboration when describing the evidential landscape is different from imposing a requirement for corroboration. More importantly, the Local Court Magistrate accepted the ADVO case and made orders in favour of the respondent: there were no references to corroboration by the District Court Judge, whose judgment was relied upon for the issue estoppel argument.
Secondly, the primary judge referred to a difference in the paternal grandmother’s evidence before the Local Court compared to that before the primary judge, which was not borne out in the transcript of the evidence.
The errors by the primary judge do not result in appealable error as the other factors were so significant that the two erroneous considerations “could not reasonably be supposed to have affected the result”, and therefore there has not been a miscarriage of justice: Conway v The Queen (2002) 209 CLR 203. The circumstances of this case are such that a determination applying any issue estoppel would have been “unreasonable or plainly unjust” in the sense set out in House v The King (1936) 55 CLR 499.
Having determined that the respondent should not be bound by an issue estoppel, the primary judge went on to consider the issues herself. The appellant also argues that the primary judge failed to accord appropriate weight to the findings of the District Court Judge.
Section 69ZX of the Family Law Act provides that:
(3) The court may, in child-related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
This provision was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). It is a modified version of section 86 of the Commonwealth Native Title Act 1993 (Cth). The provision permits the court to adopt or all or part of the findings of another court (even if there is not identity of parties (or privity) in the sense required by the common law with respect to issue estoppel): see Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 374 ALR 448.
The appellant did not rely upon this section at the hearing and no argument was made that the primary judge ought to “adopt” the findings of the State Courts pursuant to s 69ZX. It is not appropriate to allow an appellant to raise arguments on appeal that were not put to the primary judge: see Water Board v Moustakas (1988) 180 CLR 491; Coulton v Holcombe (1986) 162 CLR 1; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418. Even if the question were to be considered on appeal, on the evidence before the primary judge the appellant has not established that in the circumstances of this case (where family violence was a central issue the subject of evidence) the primary judge ought to have adopted the findings of the State Courts.
Finally, the prohibition against relying upon judgments of other courts contained in s 91 of the Evidence Act does not apply as a result of the effect of s 69ZT(1)(c). The judgments of the State Courts were in evidence before the primary judge. The appellant argues that the primary judge failed to give the judgments appropriate weight. It is difficult to see how the very brief findings of the State Courts would be relevant (in the sense required by s 55 of the Evidence Act), or of any real weight in the circumstances of this case, when the primary judge was proceeding to determine the facts on the evidence before her Honour (which included a transcript of the evidence before the Local Court). There is no merit in this argument.
As a result, the grounds of appeal concerning these issues must be dismissed.
(4) FINDINGS THAT THE APPELLANT COMMITTED FAMILY VIOLENCE
Ground 8 addresses the findings of the primary judge with respect to the destruction by the appellant of three engagement rings that he had given to the respondent at various times. To the extent that this issue is covered by Ground 9 it is deal with here.
Ground 8
8.The Trial Judge erred in law by finding that the Appellant/Father committed family violence by destroying three engagement rings in that her Honour failed to provide adequate reasons, or any proper reasons, as to how the disposal of the rings fell within the definition of family violence under the Family Law Act 1975.
((Amended) Notice of Appeal filed 27 May 2024)
The relevant paragraph of the primary judge’s findings sets out:
196… I find that I prefer the [respondent]’s account of the events that took place. Accordingly, I find that:
(a)The [respondent] was exposed to family violence by the [appellant] when he hit her over the head, squeezed her throat, and held a large carving knife over her head.
(b)The [appellant] has engaged in volatile and unpredictable behaviour on some occasions including when he destroyed three engagement rings on separate occasions and threw the [respondent]’s belongings out of the house.
A careful reading of the paragraph shows that the primary judge did not make a specific finding that the behaviours listed in [196(b)] were “family violence” as defined in the Act, instead describing them as “volatile and unpredictable behaviour”. However, at [228], the primary judge said that the “family violence included … [p]hysical violence and destruction of property”.
The conclusion that the appellant had destroyed property (at [228]) appears to rest upon the finding that the appellant had destroyed engagement rings he had previously given to the respondent, “in anger, nor calmly” (at [193]).
There are no specific findings as to the circumstances surrounding the destruction of the first two engagement rings beyond the finding that they were destroyed “in anger” (at [193]). A finding that an engagement ring was “angrily” destroyed is, without more, insufficient to satisfy the definition of family violence in s 4AB of the Act. Engagement rings traditionally symbolise the promise to marry and the return of an engagement ring is a termination of the agreement to marriage and the relationship. That a person may destroy the ring after it is returned to them may be impolite or confronting, but would be insufficient, on its own, to satisfy the requirement of s 4AB of the Act.
However, the findings with respect to the circumstances surrounding the destruction of the third engagement ring place a very different complexion on the events that led to that ring being destroyed. The primary judge preferred the respondent’s account of the events of April 2018 (at [196]), thus accepting that the appellant had “hit the [respondent] over the head” and “squeezed her throat … held a carving knife over her head” whilst “she was pinned against the wall” and “broke her engagement ring with a pair of pliers” (at [144]). The primary judge found that the argument “ended in him destroying the third engagement ring” (at [153]).
The findings with respect to the events surrounding the destruction of the third ring are sufficient to support a finding of family violence in s 4AB of the Act. This finding provides the necessary foundation for the primary judge’s conclusion at [228(a)] that the family violence in this case included “destruction of property”. As a result, this ground cannot succeed.
(5) ORDERS MAKING INCREASES IN TIME CONDITIONAL ON THE APPELLANT UNDERTAKING COURSES
Ground 6
6.The trial judge erred in law in making Orders 9 and 13a and 4b on 9 February 2024 regarding the undertaking by the Applicant/Appellant of course programs within 6 months without receiving any evidence that it was possible for those course programs to be undertaken within that period.
((Amended) Notice of Appeal filed 27 May 2024)
The orders for the appellant’s time with the child provided for an increase in time after the appellant completed one of a number of courses that were specifically nominated in the orders. The orders relevantly provide:
Spend time with orders
4. [The child] spend unsupervised time with the [appellant] as follows:
(a) For six months, each weekend for five (5) hours with changeovers to be facilitated by a professional supervision service;
(b) For a further period of six months, but contingent on compliance with Order 13 herein:
(i) each alternate weekend on Saturday from 9.00 am until 5.00 pm;
(c) Thereafter …
…
9. The [appellant] forthwith do all acts and things necessary to enrol in and attend one of the following Men’s Behavioural programs:
(a) The [D] program conducted by [E Service]; or
(b) The Taking Responsibility program conducted by [F Service]; or
(c) A Men’s Behavioural Change program conducted by [G Service]; or
(d) A Men’s Behavioural Change program conducted by [H Service].
...
13. The incremental increase of the [appellant]’s time with [the child] in accordance with Orders … herein is subject to the [appellant]:
(a) providing the [respondent] with a Certificate of Completion of one of the Behavioural Change programs set out in Order 9 herein;
…
(Orders made 9 February 2024, amended on 28 February 2024)
There was evidence provided by the Family Report Writer that one of the courses set out in the orders would be appropriate to address the appellant’s behaviours in order to protect the child. The form of orders requiring the appellant to complete a course within six months was set out in the Case Outline filed by the Independent Children’s Lawyer on 24 February 2023 (as one of the orders sought). At trial the appellant made submissions concerning the necessity to undertake a course, but not as to the time frame necessary to complete a course, nor the form of the orders. The primary judge specifically found that:
283 I must consider whether the [appellant]’s time should remain supervised until such time as he has provided the [respondent] with evidence that he has completed the programs and engaged with the psychologist and child psychologist.
The appellant argues that there is no evidence that the courses were available to be completed in the time provided for in the orders (being six months), and that he was not able to complete the courses in that time.
It is clear that the intention of the primary judge was that the initial period of contact for five hours during the day, once each week, continue until one of the courses was completed. Further staged increases in time followed thereafter. Unfortunately, the drafting of the order left open the possibility of the first stage ending prior to the commencement of the second stage starting, if the course was not completed by the appellant within six months. This is merely a drafting slip, omitting the words “no less than” in Order 4(a) of the orders made 9 February 2024 so that, on a technical reading of the order, time in accordance with the first stage did not cease if the course was not completed within six months.
Both the respondent and the Independent Children’s Lawyer agreed at the hearing of the appeal that the addition of the words “no less than” was intended by the primary judge on a fair reading of the reasons (Burrell v The Queen (2008) 238 CLR 218 at [21]), and that such a change should be addressed by an amendment of the orders under the slip rule (in accordance with r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). It is necessary for an appellant to exhaust his or her other remedies before seeking appellate intervention: see Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10 at [5]; Zan & Wen (No 2) (2023) FLC 94-513 at [69]; and Wall Street Developments Pty Ltd v Egerton [2010] QDC 44. Where it is clear that the complaint relates only to a drafting slip rather than an appealable error, the ground of appeal should be dismissed.
Rule 10.13 of the FCFCOA Rules provides the Court generally with power to correct orders pursuant to the slip rule. In this case it is appropriate to correct the orders made on 9 February 2024, rather than putting the parties to the further expenses of applying to the primary judge (see, for example, Daily & Daily (No 2) (2023) FLC 94-151).
As a result, this ground of appeal must be dismissed.
CONCLUSIONS
The appeal must be dismissed as the appellant has not established any of his grounds of appeal.
The respondent filed a schedule of costs for the amount of $16,735.18. The respondent was not in receipt of a grant of legal aid, but privately funding her legal representation. The Independent Children’s Lawyer sought costs in the sum of $5,181.
Costs in family law proceedings are governed by s 117 of the Family Law Act which provides for each party to bear their own costs, save where there are circumstances justifying an order for costs, having regard to the matters set out in the section. The appellant is on a low income and (at least at the time of the Family Report) assessed to pay minimal child support. The appellant was wholly unsuccessful on the appeal. The appellant submitted that, if the appeal is unsuccessful, he should not have to pay the full schedule of costs and should pay half the amount. Counsel for the respondent submitted that the Court could fix a lump sum if the Court is not inclined to make a costs order for the full amount. The costs sought are calculated on the court scale. The amounts are reasonable given the wide-ranging issues in the appeal.
It is appropriate that the appellant meet the respondent’s costs of the appeal. I am not persuaded to make a costs order in favour of the Independent Children's Lawyer.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 21 October 2024
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