Alberson & Elzares

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FAMILY COURT OF AUSTRALIA

Alberson & Elzares [2021] FamCAFC 125

Appeal from: Alberson & Elzares [2020] FCCA 2286
Appeal number(s): NOA 61 of 2020
File number(s): BRC 8291 of 2019
Judgment of: STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ
Date of judgment: 23 July 2021
Catchwords:

FAMILY LAW – APPEAL – Parenting – Where the father appeals orders vesting the mother with sole parental responsibility for the child and mandating that the child spend no time with the father – Where the father was convicted of knowingly possessing child exploitation material – Where the father is a registered offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – Where the father advances grounds of appeal alleging judicial bias, denial of procedural fairness, that the findings of the primary judge were not open on the available evidence and erred in the exercise of discretion – Where no error was identified – Where it was open for the primary judge to find the father posed an unacceptable risk of harm to the child.

FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the application was made the day before the appeal – Where the application is refused as the father did not adequately explain its lateness – Appeal dismissed.

Legislation:

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)

Evidence Act 1995 (Cth) ss 55, 56

Family Law Act 1975 (Cth) Pt VII, ss 11F, 60CC, 62G, 68P, 68Q, 69ZT, 69ZV

Federal Circuit Court Rules 2001 (Cth) Div 15.2
Cases cited:

Assistant Commissioner  Condon v Pompano Pty Ltd (2012) 252 CLR 38; [2013] HCA 7

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

M v M (1988) 166 CLR 69; [1988] HCA 68

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29

RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Division: Appeal Division
Number of paragraphs: 87
Date of hearing: 14 July 2021
Place: Heard in Brisbane (via video-link), delivered in Newcastle
The Appellant: Litigant in person
Counsel for the Respondent: Ms Frizelle
Solicitor for the Respondent: Sempre Vero Lawyers
Counsel for the Independent Children's Lawyer: Mr Ashcroft
Solicitor for the Independent Children's Lawyer: Dooley Solicitors

ORDERS

NOA 61 of 2020
BRC 8291 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
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Details
Case
[2021] FamCAFC 125
Decision Date

CaseChat Overview and Summary

In the matter of Alberson v Elzares, the father appealed parenting orders made by the Family Court of Australia, which vested sole parental responsibility in the mother and mandated that the child spend no time with the father. The dispute arose from the father’s conviction for knowingly possessing child exploitation material and his status as a registered offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). The father contested the orders on several grounds, including judicial bias, denial of procedural fairness, and errors in the exercise of discretion by the primary judge. The court was required to determine whether the primary judge erred in concluding that the father posed an unacceptable risk of harm to the child.

The court thoroughly examined the grounds of appeal and found no merit in any of them. The court held that the primary judge was entitled to find the father posed an unacceptable risk of harm to the child based on the evidence presented. The father’s argument about the psychologist’s report was dismissed as the alleged bias was not adequately raised during the trial. The court also rejected the father’s claims regarding the admission of evidence and the primary judge’s exercise of discretion. The appeal was dismissed for lack of merit, and the mother and the Independent Children's Lawyer were not required to pay costs as they were funded with grants of legal aid. The court’s decision upheld the original parenting orders, which prohibited any contact between the child and the father.

Orders

Orders of the court

NOA 61 of 2020

BRC 8291 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR ALBERSON

Appellant

AND:

MS ELZARES

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ

DATE OF ORDER:

23 JULY 2021

ORDERS MADE ON 14 JULY 2021:

1. The appellant father’s Application in an Appeal filed on 13 July 2021 be dismissed.

2. Judgment be reserved.

ORDERS MADE ON 23 JULY 2021:

1. The appeal be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The father appealed on the grounds set out within his Amended Notice of Appeal filed on 19 February 2021. The mother and the ICL both resisted the appeal and, for the reasons which follow, it should be dismissed.BACKGROUND The parties began cohabitation in late 2009. The mother’s older child, who was born to a former relationship and was then aged 10 years, formed part of the family but she left the household following an incident between her and the father in late 2014. The child who is the subject of the appealed orders was born in 2011. She is now 10 years of age. After the parties separated in October 2016, she lived with the mother and regularly spent time with the father, though her contact with him ceased upon later developments. Nearly a year after separation, in September 2017, the mother reported the father to the police. She alleged that, some years before, she found some compact discs among his belongings containing pornographic imagery involving children, which she then confiscated and had kept hidden. In October 2017, the police executed a search warrant at the father’s home but found no other similar form of pornographic material. Nonetheless, acting upon the information provided by the mother, the father was charged and later indicted for “knowingly possessing child exploitation material”. Ultimately, the father pleaded guilty to the offence and was sentenced to imprisonment for nine months, which sentence was wholly suspended for a period of two years on condition of his good behaviour. The father’s appeal against his conviction was dismissed. While the father’s criminal appeal was pending, he commenced proceedings before the Federal Circuit Court of Australia in July 2019 seeking parenting orders under Pt VII of the Act because, by that time, the mother was withholding the child from him in accordance with the terms of a family violence order made by the Queensland Magistrate’s Court protecting both her and the child. The terms of the family violence order prohibited any contact between the child and the father, save in accordance with an operational parenting order, of which there was none. In October 2019 and April 2020, the father made oral applications for interim parenting orders to re-introduce some form of contact between him and the child, but the applications were refused. The trial was then listed for August 2020. The father contended the child enjoyed a loving relationship with him, which the mother was intent on destroying. He asserted the child would be deleteriously affected by the loss of their relationship and the only way to avert that detriment was to make orders for the child to regularly spend substantial amounts of time with him. The mother and the ICL contended the child did not have a particularly meaningful relationship with the father and she would not derive any benefit from an attempt at its rejuvenation. On the contrary, they alleged the father posed an unacceptable risk of harm to the child and, as the Act required (s 60CC(2A)), greater weight had to be accorded to the need for the child’s protection from harm than to the benefit she could prospectively derive from having a meaningful relationship with the father.

Evidence

Evidence Before The Court

The father’s third complaint about the admission of Ms FF’s evidence in support of the mother’s case has already been addressed and rejected under the rubric of apprehended bias. The admission of her evidence did not manifest any denial of procedural fairness either and so Ground 6 must also fail in that alternate respect.Ground 7 – biased expert evidence This ground of appeal was pleaded in this way:The [Family Report] was biased in balance of assumption by the Judge. Without intending disrespect, the ground is meaningless. We assume it alleges the contents of the Family Report exhibited bias against the father. Neither the father’s Summary of Argument nor his oral submissions offered any help in unravelling the meaning of this ground. The Summary of Argument appeared to complain only of the asserted inconsistency between two paragraphs within the Family Report, prepared by a psychologist (Dr CC). The two paragraphs in the Family Report to which the father drew attention in his Summary of Argument were in these terms:7.29It was the writer’s opinion that [the child] was authentic and spontaneous in her responses. She demonstrated an innocence in regard to her parents and family members that was childlike and age-appropriate and most interesting, uncontaminated by her parent’s conflict, the events surrounding their separation, and her father’s recent criminal convictions.…11.08There may be various reasons for this ambivalence by [the child] toward her father. One reason for such might be that her life is rich and full with significant people and activities, keeping her mind and body occupied and distracted from thoughts concerning her father. Another is that if she has been protected from negative talk or opinion about her father, she may have been able to accept this lack of contact without judgment. Finally it is possible that she has deduced from the little information she has been able to retrieve, that talk about her father is a subject associated with her mother’s mood becoming serious, and that while she may not know anything of substance, the least said about her father, the better mood her mother maintains. The father’s submissions about those two paragraphs in his Summary of Argument are just as opaque as the ground of appeal, so there is no utility in repeating them here. If the ground really complains of some deficiency or lack of impartiality in the expert evidence of the psychologist, then those were matters which had to be taken up with the psychologist in cross-examination and with the primary judge in final submissions. Neither bias nor the content of those two paragraphs, let alone any asserted inconsistency between them, was raised by the father’s counsel in cross-examination of the psychologist. That is clear from the partial transcript filed in the appeal. We have not been furnished with a complete transcript, as the father successfully applied for relief from that obligation, so we cannot say whether some final submission was made on the topic, but no submission could sensibly have been made to the primary judge about limitations to the probative value attached to the Family Report unless those alleged limitations were put to the psychologist in cross-examination for her comment. Without that groundwork, the primary judge was perfectly entitled to accept and rely upon the expert opinion evidence of the psychologist, as occurred (at [126]–[134]).Grounds 2 and 12 – unacceptable risk of harm

Decision

Reasons for decision

That outcome was consistent with the psychologist’s opinion evidence. In the Family Report, she had recommended supervised contact between the child and the father but, when informed during cross-examination about other aspects of the evidence of which she had hitherto been unaware, her opinion altered and she recommended no personal contact between the child and the father – at least until the father fulfilled the remedial steps recommended by Mr AA (at [132]–[134]). Grounds 9 and 10 also fail.CONCLUSION AND COSTS The appeal is dismissed for lack of merit. The mother and the ICL were both funded with grants of legal aid and neither made an application for costs, so no costs are ordered.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.