Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Aiken & Cassone [2022] FedCFamC1A 220
Appeal from: Cassone & Aiken [2022] FedCFamC2F 1238 Appeal number(s): NAA 222 of 2022 File number(s): MLC 9466 of 2019 Judgment of: AUSTIN, REES & KARI JJ Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Unacceptable risk – Where the father appeals from final parenting orders – Where the appeal is misconceived – Where not all orders are the subject of grounds of appeal – Where the appeal is confined only to the orders truncating the amount of time the children will spend time and communicate with the father and imposing the need for professional supervision – Whether the primary judge failed to take relevant considerations into account – Where the father makes bare complaints about the credibility of the mother’s evidence – Where the primary judge was not obliged to accept and act upon opinion evidence given by the Court Child Expert – Weight arguments – Where there was a satisfactory evidentiary foundation for the findings of the primary judge – Where the father’s disagreement with a finding does not render it mistaken – No error identified – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the proposed evidence is rejected because it would be contentious and would not help establish appealable error – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 69ZW, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: Albert & Plowman [2020] FamCAFC 23
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Scott and Scott (1994) FLC 92-457; [1994] FamCA 12
U v U (2002) 211 CLR 238; [2002] HCA 368
Number of paragraphs: 64 Date of hearing: 8 December 2022 Place: Heard in Melbourne, delivered in Newcastle The Appellant: Litigant in person Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Victoria Legal Aid Counsel for the Independent Children's Lawyer: Mr Foo Solicitor for the Independent Children's Lawyer: V M Family Lawyers ORDERS
NAA 222 of 2022
MLC 9466 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR AIKEN
Appellant
AND: MS CASSONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made…
Continue reading Aiken & Cassone
Sign in free to access the full text
Details
- AGLC
- Aiken & Cassone [2022] FedCFamC1A 220
- Case
- [2022] FedCFamC1A 220
- Decision Date
CaseChat Overview and Summary
In the matter of Aiken & Cassone, the appellant father appealed against orders made by the Family Court in parenting proceedings. The primary judge had made orders for the children to live with the mother, to have contact with the father only under professional supervision and on limited occasions, and for the children to communicate with the father by telephone. The father sought orders for equal shared parental responsibility and for the children to live with him for equal time. The mother and the Independent Children's Lawyer opposed the appeal. The appeal hinged on whether the primary judge erred in preferring the mother's evidence over the father's, despite inconsistencies in her evidence and claims of improbability. The father argued that the primary judge did not give reasonable regard to certain evidence and affidavits that cast doubt on the mother's credibility.
The legal issues before the court were whether the primary judge erred in preferring the mother's evidence over the father's, and whether such an error was so significant as to justify an appeal. The court examined whether the primary judge's credit findings were manifestly unreasonable, given the evidence presented. The court noted that the primary judge had carefully considered the evidence and provided detailed reasons for preferring the mother's evidence. The father's argument that the primary judge did not give reasonable regard to certain evidence was rejected as the court found no frank error in the primary judge's approach to the evidence.
The court found that the primary judge's credit findings were reasonable and supported by the evidence. The reasons for judgment clearly articulated the basis for preferring the mother's evidence, and the findings were not so incongruent with the evidence as to infer an appealable error. The appeal was dismissed for lack of merit, and the Independent Children's Lawyer's application for costs was dismissed due to the appellant's financial hardship. The mother did not seek costs.
The legal issues before the court were whether the primary judge erred in preferring the mother's evidence over the father's, and whether such an error was so significant as to justify an appeal. The court examined whether the primary judge's credit findings were manifestly unreasonable, given the evidence presented. The court noted that the primary judge had carefully considered the evidence and provided detailed reasons for preferring the mother's evidence. The father's argument that the primary judge did not give reasonable regard to certain evidence was rejected as the court found no frank error in the primary judge's approach to the evidence.
The court found that the primary judge's credit findings were reasonable and supported by the evidence. The reasons for judgment clearly articulated the basis for preferring the mother's evidence, and the findings were not so incongruent with the evidence as to infer an appealable error. The appeal was dismissed for lack of merit, and the Independent Children's Lawyer's application for costs was dismissed due to the appellant's financial hardship. The mother did not seek costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The mother and the Independent Children’s Lawyer (“the ICL”) both resisted the appeal. For the reasons which follow, the appeal is dismissed.Background The parties met and commenced cohabitation in 2013. Their children were born in 2015 and 2017 and are now aged seven and five years respectively. There was a live dispute about when the parties’ finally separated but it was common ground that, regardless of the status of the relationship, both parties lived with the children until the mother vacated the former family home in August 2019. Almost immediately, the parties obtained family violence orders against one another in a State court and the mother initiated proceedings seeking relief under Pt VII of the Act. In October 2019, interim parenting orders were made with the parties’ consent providing for the children to live with the mother, but to spend only supervised time with the father. Since then, the children have never spent any time with the father without supervision. The supervised visits have occurred fortnightly, subject to interruptions caused by two changes of professional supervision agencies and other misadventure, though the children and the father have regularly communicated by telephone. In December 2021, the State court made an indefinite family violence order against the father for the protection of the mother and the children. The father consented to the order being made in the midst of the hearing in which he was defending the application, though without him making any specific admission about his alleged misconduct to justify such an onerous order. The father withdrew his application for a reciprocal family violence order against the mother. The trial of the parenting proceedings before the primary judge lasted four days spread over March and April 2022, with judgment delivered in September 2022. In summary, the appealed orders provided for: the mother to have sole parental responsibility for the children (Order 1); the children to live with the mother (Order 2); the children to spend time with the father, but only under professional supervision and only on four occasions each year (Orders 3 and 4); the children to communicate voluntarily with the father by telephone (Order 5); the father being permitted to send written correspondence to the children on their birthdays and at Christmas (Order 6); and for the children to travel overseas without the father’s consent (Order 12). The orders largely reflect those sought by the mother, but they enjoyed the broad support of the ICL and are generally consistent with the opinion evidence given by the Court Child Expert. The father had sought orders for the parties to have equal shared parental responsibility for the children and, after gradually increasing the frequency and duration of their visits with him, for them to live with the parties for equal time. Even though the father proposed the children should live with the mother for not less than an equal amount of time, he persisted in contending before the primary judge that she posed a risk of harm to them by both abuse and neglect, lacking the sagacity to appreciate the inconsistency of his case. Ultimately, his concerns about the mother were rejected by the primary judge (at [278(d)] and [328]).
Evidence
Evidence Before The Court
The primary judge said this in respect of the parties’ credit as witnesses:30.Before turning to the evidence in detail, I note that over the course of a four day hearing, I had the opportunity to observe each of the parties and the manner in which they gave evidence and responded to questions in the course of cross-examination.31.The mother was responsive in giving her evidence and made reasonable concessions when appropriate. I found her to be a witness of truth.32.In giving his evidence before this court, particularly in responding to question put by counsel for the mother and by counsel for the ICL, the father was often argumentative and non-responsive. He did not make any concessions about his own conduct, and importantly, about the impact of his conduct towards the mother on the children.33.Rather, the father appeared focussed on making sure that he said what he wanted to say about a particular issue, not necessarily answering the question that was asked. This repeatedly occurred, even though he was reminded on numerous occasions that he was required to answer the questions asked. He took every opportunity in the course of giving his evidence to repeat the concerns he had about the mother’s care of the children and the mother’s unreasonableness in refusing his ‘reasonable’ requests for how and where time might occur.34.On balance, where there is a dispute between the evidence given by the mother and that given by the father, I prefer the mother’s evidence. …194.For reasons previously articulated, where there is a factual dispute between the parties, I prefer the mother’s evidence over that of the father. ……203.For reasons previously stated, where there is a dispute between the parties, I prefer the mother’s evidence to that given by the father. …(Emphasis added) This ground contends that, in making those generalised credit findings, the primary judge “had no reasonable regard to” these following considerations:(i)numerous inconsistent statements within the evidence of the respondent mother.(ii)evidence of the respondent mother that was glaringly improbable.(iii)the unchallenged affidavit of the [father’s] brother… sworn 16 March 2022.(iv)The evidence, (which was not challenged by the respondent mother) contained in the affidavit of the [father’s] mother… sworn 15 March 2022(v)Available evidence that could decisively corroborate the assertions of the appellant father as to the respondent mother’s credibility.(vi)The report of [the single expert psychiatrist] which raised the issue of the mother’s credibility, in the context of her apparently withholding of material evidence in her consultation with [the single expert psychiatrist].(As per original) It will be observed how the father does not assert such considerations were entirely ignored; only that the primary judge did not have “reasonable” regard to them. So construed, the complaint is not one of discretionary error by the failure to take relevant considerations into account, but rather one about the weight (or lack thereof) attributed to particular pieces of the evidence. Therein lies the first flaw of this complaint.
Decision
Reasons for decision
The assertion is rejected. The reasons for judgment explain clearly how that result was reached and, absent the demonstration of frank error, the result is not so inexplicably incongruent with the evidence that some appealable error must necessarily be inferred.Conclusion The appeal fails for lack of merit. The ICL sought her costs of the appeal, assessed in the sum of $3,871, against the father on the basis that the appeal was wholly unsuccessful. The application is dismissed because we accept, based on the appellant’s summary of his financial circumstances, that he would suffer financial hardship if liable for a proportion of the ICL’s costs (s 117(4)(b) of the Act). The mother did not seek costs.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.