Bachman & Self
[2023] FedCFamC1A 50
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bachman & Self [2023] FedCFamC1A 50
Appeal from: Self & Bachman (No 3) [2022] FedCFamC1F 829 Appeal number: NAA 247 of 2022 File number: SYC 2566 of 2016 Judgment of: ALDRIDGE, TREE & BRASCH JJ Date of judgment: 21 April 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the grounds of appeal are numerous, prolix and not advanced in the Summary of Argument – Where challenges not advanced in the Summary of Argument were not considered pursuant to r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where any contended factual error by the primary judge was inconsequential to the parenting orders – Appeal dismissed.
FAMILY LAW – APPEAL – CONTRAVENTION – Where the father appeals from the primary judge’s dismissal of contravention applications – Where there is no error in the primary judge having regard to s 69ZN of the Family Law Act 1975 (Cth) and s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) in determining the contravention applications – Where the father’s actions in pressing the contravention applications were inconsistent with his application for parenting orders – Appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – Where the father appeals property settlement orders providing for a 66/34 per cent adjustment in favour of the mother – Where the primary judge undertook a holistic approach to assessing contributions – Where a mathematical approach to assessing contributions must be eschewed – Weight challenges – Mistake of fact – Where the primary judge made an error of fact as to the mother’s recent employment history, which informed the adjustment in respect of s 90SM(4) factors – Where any contended factual errors in the balance of the grounds were immaterial – Appeal allowed in part – Matter remitted for rehearing on limited issue – No order as to costs.
Legislation: Family Law Act 1975 (Cth) Div 13A, Pt VII, ss 45A, 69ZM, 69ZN, 90SF, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bonnici and Bonnici (1992) FLC 92-272; [1991] FamCA 86
De Winter v De Winter (1979) 23 ALR 211
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
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
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Self & Bachman (No 2) [2021] FedCFamC1F 335
Sieger & Department of Communities and Justice [2020] FamCAFC 172
Storie v Storie (1945) 80 CLR 597; [1945] HCA 56
Number of paragraphs: 181 Date of last submissions: 10 March 2023 Date of hearing: 2 March 2023 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Judge with Mr Keserovic Solicitor for the Respondent: Adam Jones Solicitor ORDERS
NAA 247 of 2022
SYC 2566 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BACHMAN
Appellant
AND: MS SELF
Respondent
order made by:
ALDRIDGE, TREE & BRASCH JJ
DATE OF ORDER:
21 april 2023
THE COURT ORDERS THAT:
1.The appeal is allowed in part, in that Order 19 of the orders made on 28 October 2022 is set aside, but otherwise dismissed.
2.The issue of what sum, if any, either party should be ordered to pay the other, is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
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 pseudonym Bachman & Self has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & BRASCH JJ:
INTRODUCTION
On 28 October 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders finally determining the parenting and property dispute between Mr Bachman (“the father”) and Ms Self (“the mother”).
The parenting orders provide for the mother to have sole parental responsibility for the parties’ child, who is to live with her and spend time with the father when the child wishes. The property settlement orders effected a 66/34 per cent division of the parties’ net assets in favour of the mother, which resulted in the father being required to pay $145,117 to the mother. The primary judge also dismissed various outstanding procedural and contravention applications. The father appeals from those orders.
The mother opposed the appeal. For the reasons that follow, the appeal will be allowed in one respect, in relation to the property orders, but otherwise dismissed.
BACKGROUND
At the time of trial, the father was 60 and the mother 56. The father is self-employed and the mother is also self-employed.
As found by the primary judge, the parties were in a de facto relationship between 2011 and March/April 2016.
Both the father and mother each have three now adult children from previous marriages. The one child to their relationship and who is the subject of these proceedings was born in 2011.
At the commencement of the relationship, each party owned a property in their name. The father owned a property at Suburb T which was rented out during the relationship, before being sold in 2015. The mother owned a property at Suburb K, but sold it prior to cohabitation commencing. In June 2011, the mother purchased what thereafter became the family home at Suburb D (“the Suburb D property”) for $1,810,000 in her sole name, where the parties lived with all their children for the duration of the relationship. The father contributed $91,000 for a five per cent deposit on the purchase of the Suburb D property which the mother repaid him. The Suburb D property has since been renovated several times, and at trial the mother remained living there.
In early 2012, the parties purchased a property at Suburb H (“the Suburb H property”) as tenants in common in 90/10 shares in favour of the father. The purchase was funded entirely by a loan to the parties jointly. The father resided in this property at the time of trial.
In February 2016, the father purchased a property at U Street (“the U Street property”) for approximately $895,000, funded by a mortgage of $796,000 and cash held by him.
The parties separated in March or April 2016. Since the father moved out of the Suburb D property in May 2016, the mother has been the primary carer of the child.
In February 2021, the trial commenced before the primary judge and ran for six days, after which written submissions were received from the parties. On 10 March 2021, judgment was reserved. At this stage, the issues in dispute were primarily the allocation of parental responsibility, the time which the child should spend with each parent, and property adjustment. As noted by the primary judge, at that time there was compelling evidence that the child should spend up to equal time with each parent (at [6]). However, before judgment could be delivered, the parties filed numerous further applications, including seeking to reopen the evidence, and a number of contravention applications.
At [61]–[82], the primary judge outlined the procedural history of those applications and the consequences of them, namely that the trial did not finally conclude until 11 August 2022, when judgment was again reserved, including in relation to the various further applications.
In between the first segment of the trial and when judgment was finally reserved, the child had ceased spending time with the father. By the time of final submissions on 11 August 2022, it was the father’s position that he could not spend any time with the child until no earlier than the commencement of Term 3, 2023, based on his belief that his relationship with the child had been destroyed by the mother’s alienation of the child from him, and the failure of the Court to deal with his contravention applications in a timely manner.
THE APPLICATION IN AN APPEAL
By Application in an Appeal filed 7 February 2023, the father sought to lead further evidence in the appeal solely restricted to Ground 15(e). At the hearing of the appeal, we permitted the father to rely upon that material, and shall address it when considering that ground.
THE APPEAL GENERALLY
As we have noted, the appeal engages with all three aspects of the primary judge’s determination, comprising parenting, contravention and property settlement orders. It is convenient to deal with the grounds grouped by reference to those topics, and in that order.
However at the outset, it should be emphasised that the property and parenting orders, and aspects of the disposition of the contravention applications, involved the exercise of a discretion. It is therefore useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 (“House”) at 504–505 must be established. There, the majority of the High Court said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
It should also be noted that the grounds of appeal are numerous, prolix and poorly drawn, on occasion to the point of being quite impenetrable. Further, although there are 25 grounds, in fact most have multiple sub-grounds, meaning that there are perhaps approaching 100 individual grounds. Indeed their articulation in the father’s Further Amended Notice of Appeal filed 7 December 2022 extends to no less than 21 closely typed pages.
As the Full Court of the then Family Court said in Sieger & Department of Communities and Justice [2020] FamCAFC 172 at [20]–[22]:
20.When an appeal asserts many different errors in a relatively short first-instance judgment, as this one is, the Court is entitled to be circumspect about the merit of all the grounds (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at [70]; Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45 at [52]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]). Even if appealable error does exist, an unnecessary multiplication of grounds tends to conceal it (Thorne v Kennedy (2017) 263 CLR 85 at [49]).
21.Aside from the sheer number of grounds of appeal, many of them amount to no more than the intricate dissection of individual paragraphs in the reasons for judgment. This parsing approach has been rightly criticised by other intermediate appellate courts, which criticism we adopt.
22.The Full Court of the Federal Court of Australia said this in Australian Olympic Committee Inc v Telstra Corporation Ltd (2017) 258 FCR 104 at [115]), endorsing what was earlier said by the New South Wales Court of Appeal in Liverpool City Council v Turano (2008) LGERA 16 at [160]:
…the role of this Court on appeal should not be misunderstood. The analysis of a judgment for appellate purposes does not require a fine parsing exercise and does not require overzealous analysis…
Those statements are entirely appropriate here, even if the judgment in question may not qualify as “relatively short”.
To make matters worse, many complaints advanced in the father’s Further Amended Notice of Appeal were not addressed in his Summary of Argument. In that context it is pertinent to repeat the relevant parts of r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth),as follows:
13.23 Summary of argument and list of authorities
(1) Each party must file and serve a summary of argument and a list of authorities to be relied on:
(a)for the appellant—at least 28 days before the first day of the sittings in which the appeal is listed for hearing; or
(b) for the respondent and any independent children’s lawyer—at least 7 days before the first day of the sittings in which the appeal is listed for hearing.
(2) For the purposes of subrule (1), a summary of argument must:
(a) set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript); and
(b) set out the orders sought (if they differ from the orders sought in the Notice of Appeal or any Amended Notice of Appeal); and
(c) not exceed 15 pages, unless leave to exceed that number has been given; and
(d) be easily legible, using a font size of at least 12 points and 1.5 line spacing; and
(e) have all paragraphs numbered consecutively; and
(f) be signed by the person who prepared the summary of argument; and
(g) include the signatory’s name, email address, telephone number and document exchange number (if any) at which the signatory may be contacted.
(3) If a party intends to challenge any findings of fact, the summary of argument must:
(a) identify the error (including any failure to make a finding of fact); and
(b) identify the finding that the party contends should have been made; and
(c) state concisely why the finding, or failure to make a finding, is erroneous; and
(d) refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
(4) Issues not identified in the summary of argument may not be advanced at the hearing of the appeal except with leave of the appeal court.
(Emphasis added)
The father’s Summary of Argument was substantially non-compliant with the parts of that rule which we have emphasised, and particularly on occasion before us the father sought to raise issues not identified in his Summary of Argument, which suggested that he may not have been aware of r 13.23 until we brought it to his attention.
THE PARENTING APPEAL
Not one of the grounds relating to parenting involves anything other than the most strident criticism of the mother, and all assert or assume errors by the primary judge in failing to find that she has relevantly misconducted herself.
This is the repetition of an unfortunate theme noted by the primary judge (although itself the subject of appeal) at [167] that the father “is more focussed on punishing the mother than on the best interests of the child”. Before us, that punishment seemed focussed on persuading us to find that the mother had been regularly dishonest in her evidence, whereas the father had not. It was also a central thesis of the father’s submissions that the mother had deliberately set out to alienate the child from him, and to destroy their relationship.
Moreover, as shall be seen, few of the grounds relating to the parenting orders grapple with the central aspects of the primary judge’s reasoning for making the orders which he did. That reasoning was as follows:
(a)Neither party poses an unacceptable risk of harm to the child (at [3], [127] and [128]);
(b)However the conflict and hostility between the parents is a serious problem for the child (at [3] and [126]) and explains his past conduct when pressured to spend time with the father (at [124]) and his present disinclination to spend such time (at [130]);
(c)At trial, the father (most unusually) refused to spend any face-to-face time with the child until, at the earliest, after July 2023, but then proposed, subject to him giving one months’ notice, that the child immediately spend four nights per fortnight (being Thursday to Sunday nights) with the father (at [189]); although the primary judge seemed to calculate it at five nights, no ground of appeal contends that was an error. No progressive build up to those four nights was proposed, and given the father lived in Suburb H, and the child went to school not far from the Suburb K property, how the child would get to school on Friday and Monday was unclear;
(d)Although the child loves the father and wants to maintain a relationship with him (at [132]) the parental conflict means he presently does not wish to spend time with him (at [130]);
(e)The child’s wish to spend time with the father only when he chooses warranted weight (at [130]);
(f)The parties’ hostility precluded any prospect of shared parental responsibility, and the father’s proposal that there be sole parental responsibility for psychological and medical issues given to the mother and father respectively was unworkable (at [185]);
(g)Hence the only practical outcome was to order sole parental responsibility to the mother (given the father would not even see the child for some months from the orders – at [185]) and for the child to spend time with the father as the parties agreed, or absent agreement, as he wished (at [190]).
What the father did not appear to appreciate is that his proposal at trial did not in any way accommodate his allegations of parental alienation by the mother, so even if that were found to exist, as he contends it ought to have been, the stark impracticability of his proposed orders nonetheless loomed large, and indeed overwhelmingly so.
Many of the father’s grounds advanced in the parenting appeal appeared to be interrelated. For instance Grounds 16, 17, 18, 19 and 20 all contend erroneous findings or conclusions of fact relating to various occasions of changeovers of the child, which in turn rely upon the falsity of the mother’s assertions as to what occurred on those occasions and others, whilst her falsity generally is the subject matter of Ground 24. It is further asserted that the (only slightly) adverse conclusion as to the father’s credibility was not open, a matter specifically contended by Ground 23.
Those are then all part of the foundation for Grounds 21 and 22, which respectively assert firstly, that the primary judge erred by not finding that the child’s expressed wishes were the product of the mother’s alienation of him from the father, and secondly that the primary judge erred in concluding that the child still wanted a relationship with the father, and which relationship was not destroyed. As to those, the father contends that the primary judge ought to have found that the child’s relationship with him had been destroyed by the mother, and her influence over the child had caused him not to want any relationship with the father.
So viewed, it can be seen how those grounds all interrelate and to some degree overlap, or at least impact on each other.
Unfortunately however, the casting of the grounds tended more to obscure than illuminate them, and many aspects of them were not addressed in the father’s Summary of Argument. Further, the prolix and confusing way in which the grounds are expressed makes it occasionally undesirable to recite them in the body of these reasons, in which case we have adopted the device of setting them out in an appendix to these reasons; otherwise those parts of this judgment would be all but unreadable.
We should also make plain that, as the parenting aspect of the appeal raises no question of general principle and, as we have noted earlier, must be dismissed, this part of our reasons is, so far as the grounds permit, in short form (s 36(2) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“FCFCOAA”)).
At this point it is pertinent to repeat the relevant principles concerning appeals asserting errors of fact. Particularly an appeal court should not interfere with a finding of fact if there was evidence on which that finding could be made; that is, if it was reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513). It also must be recognised that appellate judges are in a “permanent position of disadvantage as against the trial judge” in assessing the evidence and the credibility of witnesses (Fox v Percy (2003) 214 CLR 118 at [77]).
Further, it is only if a mistake of fact is material to the ultimate decision, that such a mistake will justify appellate intervention (De Winter v De Winter (1979) 23 ALR 211 at 217). There, having referred to House and Storie v Storie (1945) 80 CLR 597, the High Court observed that (at 217–218):
… It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
…
…The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.
Finally, before turning to discuss the individual grounds in the parenting appeal, it is useful to sequentially set out the paragraphs of the primary judge’s reasons which bear on the majority of them:
INTRODUCTION
…
3.It is a perplexing and melancholy feature of this case that it was undisputed both parents have had a warm and loving relationship with the child, both have good parenting skills up to a point, and, subject to some events in 2022, which are discussed later, there are no risk factors, apart from incurable and entrenched parental conflict. As explained in more detail later in these reasons, the parties have demonstrated a clear inability to communicate constructively to assist each other and the child, and appear to have looked for disagreement at almost every opportunity. This conflict has hung like an unmoving pestilential cloud over the life of the child.
…
BACKGROUND
…
37.On 28 June 2021, the child resisted spending time with the father, attempting to run back into the mother’s home, apparently to delay changeover. It appears that from this time, the child began to experience heightened anxiety in connection with spending time with his father.
…
44.On 27 October 2021, the father attempted to collect the child from school for changeover, however the child refused to leave with him.
…
PRIMARY CONSIDERATIONS
…
Section 60CC(2)(b), “abuse” and “family violence”
118.The evidence and submissions of the father made clear that he is outraged by the allegations made against him by the mother, and by what he characterises as her consistent negative narrative about him. One source of considerable offence for the father lay in allegations and a complaint made by the mother to his professional governing body, the YY Association.
119.It is a truly sad feature of this case that incidents of anger and aggressive conduct have arisen substantially since the hearing in February 2021, not before. At the hearing in February 2021, neither party contended that there were risk factors preventing the child spending overnight time with both parents.
120.As noted above, by August 2022, this had changed. The mother claimed there were incidents in June and October 2021 in which the father’s behaviour caused the child to fear him. As mentioned above, on 28 June 2021, the child expressed resistance to spending time with the father. The mother explained that the child had attempted to run back into their home. On the way to changeover, the child cried, then expressed fear that the father would see that he had been crying. Then, on 27 October 2021, when the father attended the child’s school for changeover, the child refused to leave with him. The mother noted that the child explained to a teacher that “he was scared he would get yelled at” and that he did not wish to speak to his father. She reported that the child was in a highly agitated and distressed state, and decided it was best that he return home. I do not accept the mother’s characterisation of either incident. The behaviour of the child just as likely betrays distress at the conflict between the parents, rather than any attitude to the father specifically.
121.On 8 April 2022, there was an incident at changeover near the child’s school. The mother deposed that as she was saying goodbye to the child, the father began to verbally abuse her in the child’s presence. The child then refused to go with the father, leading the father to attempt to grab the child. He ultimately went with the father, however the mother found the child back at her home when she returned 15 minutes later, as the child had tested positive for Covid-19, and the father no longer wished for the child to spend time with him.
122.Finally, on 27 May 2022, there was another incident at changeover. The child had been collected from school by the father, however ended up running away and back to the mother’s house. The mother convinced him to return to school, where the father was waiting. She stated that the father began to yell at the child, telling him he had lied to the father on Wednesday night, as the child had supposedly promised to go with the father. This caused the child to be distressed as the father labelled him as a “liar”. He swore and told his father to “shut up.” The father ultimately grabbed the child’s arm to try and pull him away from the mother, which led to the child biting the father on the arm. Police were ultimately called, with a provisional AVO being taken out for the child’s protection.
123.This clearly compounded the father’s sense of outrage. He was convinced that the mother had alienated the child from him, contending his relationship with the child was “destroyed” by false allegations by the mother. It should be recorded here that when the proceedings were before the Court on 19 October 2022, it was undisputed that the AVO had been withdrawn and dismissed. No orders against the father were made.
124.I conclude that it is likely the conflict between the parents lay at the heart of the child’s responses. With respect to the father, I consider these incidents to be out of character, and likely engendered by the father’s frustrations with the mother, and more broadly this litigation.
125.In any event, the weight of all this evidence, and s 60CC(2)(b) as a consideration, is now tempered, since the father does not propose to spend any time with the child until Term 3, 2023. For the purposes of making final parenting orders supported by these reasons, the more persuasive factual matter is that up to February 2021 neither party pointed to risk factors for the child in the care of the other party.
126.The hostility between the parents is a serious problem for the child. It is unfortunate that the mother impugned the father in his professional life. This was unnecessarily provocative and has clearly exacerbated the extreme level of conflict between the parents without obviously achieving anything beneficial for the child. Indeed, it appears to have had the effect of distracting the father from parenting the child to focus on what he perceives as the need to rehabilitate his reputation.
…
ADDITIONAL CONSIDERATIONS
…
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
…
133.I accept the mother has at times made negative commentary on the father. To the extent the child’s view of the father has diminished, the father must take also some responsibility. However, I am not at all satisfied the child’s relationship with the father has been “destroyed”.
…
(i)the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents;
148.Again, apart from their inability to reign in their conflict, both parents have an appropriate attitude to the responsibilities of parenthood.
…
(m) any other fact or circumstance that the court thinks is relevant.
…
167.The position of the father supports an inference that he is more focussed on punishing the mother than on the best interests of the child. This is supported by the clear outrage by which he has been seized as a result of the mother making allegations of family violence against him, her complaint to the YY Association, and the AVO proceedings, even though these have now been dismissed. This is not consistent with the child’s best interests.
168.As noted already, he claimed that his relationship with the child had been “destroyed” in part by the failure of the Court to deal with his contravention applications expeditiously. But, this is not a tenable argument. The evidence discussed above about the views of the child shows the child wants a relationship, and to spend time, with the father. The relationship is not destroyed. The father is refusing to spend time with him for what he perceives to be his own protection. The state of the relationship is a consequence of several factors, most obviously the numerous interim applications after the first part of the final hearing, his own conduct leading to the AVO proceedings, and his refusal to spend time with the child until Term 3, 2023.
…
177.However, I see no purpose in traversing this material in any greater detail. In light of the view I have taken about the appropriate parenting arrangements for the child, none of it could affect the outcome of the parenting issues. I have made findings about allegations of violence above under s 60CC(20(b). The material supporting the father’s application simply demonstrates an almost obsessive desire to defeat those allegations, in circumstances where there are no extant proceedings in another court based on those allegations, and I have made a finding that the father’s conduct, which was out of character, caused fear in the child on but one occasion. There is no need in this judgment to say any more than has already been said on these matters.
(Emphasis in original)
Ground 16 – The 28 June 2021 changeover
This ground provides:
16)The primary judge erred at [37] and [120] in respect of 28 June 2021, in that the primary judge:
a)did not apply correct principle or the law about Kuhl lies or admissions in respect of the respondent's 8 July 2022 affidavit at [23] making without substance and false allegations.
b)mistakenly found there was an incident or conflict on 28 June 2021 involving “... the child resisted spending time with the father, attempting to run back into the mother's house, apparently to delay changeover. It appears from this time, the child began to experience heightened anxiety in connection with his father”, contrary to the mother's allegations were impossibilities and never occurred.
c)did not take into account material considerations demonstrating the mother's allegations were impossibilities and never occurred: (i) the 28 November 2016 order 10 half school holiday order meant the child lived with the respondent for the first half of the school holidays finishing on 3 July 2021 12 noon and, therefore, was never going to spend time with or changeover to the appellant on 28 June 2021; (ii) the unchallenged evidence that the child on 28 June 2021 was in vacation care at the school organised by the respondent (Annexure AC53 Second Application - Contravention affidavit pp 113 - 114); and (iii) the respondent subsequently did not handover the child on 3 July 2021 12 noon because of a prior incident that had nothing to do with the appellant but concerned the mother and her then new boyfriend which led to the child writing expletives on the mother's mobile telephone.
d)erred at law in not providing adequate reasons or assigning intelligible reasons to the appellant's incontrovertible and unchallenged 16 July 2021 affidavit and exhibits that include Fox v Percy objective and contemporary documents (11/08/22 ex 8), Father's written submissions provided under 21 April 2022 Order 4 at p 16.3 and [72] and Aide memoire re mother's contraventions ex 6 pp 1.7 - 2.2.
(As per the original)
The impugned paragraphs of the primary judge’s reasons have been recited above.
The short answer to this ground is to recognise that the date “28 June 2021” ought be “28 July 2021” which mistake was first made in the mother’s affidavit of 8 July 2022, as clearly appears from the chronological ordering of the events described in paragraphs before and after the relevant paragraph, being paragraph 23.
Seemingly oblivious to this, as the father argued this ground, he said that the primary judge erred by finding an event of the kind alleged by the mother occurred on 28 June 2021, as the child was then in vacation care, and no changeover of the child into the father’s care occurred. Given the plain error as to the relevant date, this all becomes irrelevant.
But in any event, absolutely nothing turned on any error in that respect, because the primary judge rejected the mother’s characterisation that both events showed the child to be fearful of the father, instead preferring the conclusion that the child was distressed at the parental conflict. Therefore even if the primary judge erred, it was inconsequential since, as we shall shortly explain, the ultimate conclusion as to the cause of the child’s distress was plainly open.
The reasons challenge was not advanced by the father in his Summary of Argument and we shall not address it either, save to say it appears forlorn.
Ground 16 fails.
Ground 17 – Changeovers on and after 27 October 2021
This ground provides:
17)The primary judge erred at [44] and [120] in respect of school changeovers commencing from 27 October 2021, after the COVlD-19 school reopening, in that the primary judge:
a)did not take into account material considerations of: (i) the respondent interfered with or prevented attempted changeovers at school by misusing the primary judge's interim 23 September 2021 orders 4 and 5 concerning sole parental responsibility that were expressly limited to psychological presentation and treatment; and (ii) the involvement of Mr F and/or Dr B.
b)erred at law in not providing adequate reasons or assigning intelligible reasons to the appellant's evidence and arguments in Father's written submissions provided under 21 April 2022 Order 4 at [92] - [96] and Aide memoire re mother's contraventions ex 6 pp 3 - 4.
(As per the original)
We have previously set out the impugned paragraphs. The gravamen of this challenge as argued appears to be that the primary judge ought to have made a finding that the mother was, in effect, sabotaging the changeovers which took place at school on and after 27 October 2021, although it was not explained to us how the evidence compelled such a finding, and that any other finding was not open.
However even if the mother was so acting, and the primary judge erred by not finding to that effect, it could not have had any material impact upon the primary judge’s orders, as the father expressly eschewed spending any time with the child until no earlier than July 2023, and his proposal to then, if he gave notice, recommence spending four nights a fortnight with the child, was as the primary judge noted, quite impractical. Any error by the primary judge in this respect was therefore inconsequential.
Again, the reasons challenge advanced by this ground was not the subject of any submission, and hence we shall not consider it.
Ground 17 fails.
Ground 18 – Changeover of 8 April 2022
This ground provides:
18)The primary judge erred at [3], [121], [124], [133] and [148] in respect of the changeover events on 8 April 2022, in that the primary judge:
a)did not apply correct principle or the law about Kuhl lies or admissions in respect of the respondent's 8 July 2022 affidavit at [201] that is over 1-page making without substance and false allegations.
b)mistakenly found that there was an out of character incident or the appellant was responsible for conflict [in] April 2022 outside of [Handover Location E] by the father's behaviours when he was out of his car, contrary to the appellant was at all material times sitting in his car wearing a protective mask due to COVID-19 precautions, and the fact that his oldest son's wedding was on the next day.
c)did not take into account material considerations demonstrating the mother's changeover allegations were impossibilities and never occurred because of: (i) the appellant's 21 June 2022 affidavit at
[150] - [153] and documentary evidence; and (ii) the respondent's concessions in cross-examination that the father was in his car masked up on that day like he was “Every time ...” (20/07/22 XX53.46 - 54.4).d)erred at law in not providing adequate reasons or assigning intelligible reasons to: (i) the appellant's 21 June 2022 affidavit [150] - [153] and documents that include Fox v Percy objective and contemporary documents such as the appellant's MasterCard transactions recording the child's wedding suit was collected on […] (11/08/22 ex 11 p 77, 21 April 2022 Order 5 Index tab 14), meaning no suit fitting or collection was to be done on 8 April 2022 as alleged in the respondent's 8 July 2022 affidavit at [201](d), and the appellant's 8 April 2022 email to the school (Annexure S30 21 June 2022 affidavit p 172), after the child tested positive to COVID-19, contemporaneously recording the appellant was in his car masked up; (ii) Father's written submissions provided under 21 April 2022 Order 4 at [38]; (iii) the mother's cross-examination concessions; and (iv) the respondent not cross-examining or challenging the appellant about the respondent's 8 April 2022 allegations.
(As per the original)
The relevant paragraphs of the primary judge’s reasons have been set out above.
Again this ground attacks minutiae of the primary judge’s reasons, without any regard to the broader conclusion, namely, that the primary judge was satisfied that the child was reacting to the parental conflict.
The father contends that the events claimed by the mother could not have occurred as the father was “masked in his car” (father’s Amended Summary of Argument filed 28 February 2023, paragraph 15).
But even if that were so, any error thus committed by the primary judge went nowhere, as all that his Honour ultimately concluded was that the child’s reactions were a response to his exposure to the parental conflict. As we shall shortly explain, that finding was well open on the evidence.
Again the reasons challenge was not elaborated upon by the father, and we shall disregard it.
Ground 18 fails.
Ground 19 – Changeover of 27 May 2022
This ground provides:
19)The primary judge erred at [3], [122], [124], [133], [168] and [177] in respect of the 27 May 2022 changeover events at the child's school gate, in that the primary judge:
a)did not apply correct principle or the law about Kuhl lies or admissions in respect of the respondent's without substance and false statements: (i) recorded on 27 May 2022 by NSWPF body camera (11/08/22 ex 3); (ii) in her […] May 2022 Police statement (21/07/22 ex F); and (iii) in her affidavit 8 July 2022 at [8](c) and [203] - [224], alleging that an ADVO was made against the appellant for the protection of the child after the appellant perpetrated a physical assault on the child.
b)mistakenly referred to the manner of how the appellant conducted himself, contrary to: (i) the appellant acted lawfully and appropriately including by restraining his at risk 10- year old son from running away for a second time on that day to avoid the risk of his son being hit by a car at the Suburb D busy end of school time: (ii) the appellant did not act out of character; and (iii) the appellant was not the cause of or responsible for conflict at a changeover of the child to the appellant as required by in force parenting orders and obligations.
c)did not take into account material considerations of: (i) the appellant's 21 June 2022 affidavit at [97] - [138] and documentary evidence; (ii) the 27 May 2022 Police statement of the school's Relieving Principal that was entirely exculpatory and corroborative of the appellant (appellant's 21 June 2022 affidavit pp 153 - 155); (iii) the 3-page NSWPF 27 May 2022 narrative that at all material times was contrary to the respondent's allegations that the appellant perpetrated a physical assault at the school gate (appellant's 21 June 2022 affidavit at [134]); and (iv) not disputed or unchallenged literature learning and guidance materials (11/08/22 ex 12) that the appellant was informed by and relied on.
d)erred at law in not providing adequate reasons or assigning intelligible reasons to: (i) the appellant's 21 June 2022 affidavit at [97] - [138] and documents that include Fox v Percy objective and contemporary documents; (ii) Father's written submissions provided under 21 April 2022 Order 4 at [14], [24]-[36]; and (iii) the respondent's decision on 21 July 2022, between 10.31 am to 3.30 pm, not to cross-examine the appellant on aspects of the respondent's 8 July 2022 affidavit version, apart from grabbing of an arm without any suggestion put that it was “to try and pull him away from the mother” or challenging the father's evidence in response that he lawfully restrained his son.
(As per the original)
This is another example of the father contending a specific factual error, namely in relation to events at a changeover on 27 May 2022. It is apparent that he wants to use the appeal as a vehicle to correct the contended error, but does not detail how any such error affected the outcome, nor can we see it for ourselves. Likewise we can discern no inadequacy in the primary judge’s reasons in this regard.
Ground 19 fails.
Ground 20 – The AVO against the father
This ground provides:
20)The primary judge erred at [123] (last two sentences), [167], [168] and [177] in respect of the AVO [sic] proceedings, in that the primary judge:
a)mistakenly found that it was taken out for the protection of the child and/or the appellant's conduct led to or he was responsible for such an application, contrary to: (i) on 22 August 2022, the PROVISIONAL ORDER Apprehended domestic violence order application, made on […] May 2022 under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act), was withdrawn by the NSWPF represented by an admitted solicitor and dismissed by [a Magistrate] in the Local Court of NSW, because of Court required discussions between the NSWPF and the appellant and what was said by the Magistrate on that day; and (ii) the appellant succeeded in obtaining the withdrawal and dismissal, in response to the appellant's 6 June 2022 Local Court of NSW application, made under CDPV Act s 68 Power to stay proceedings, that the NSWPF CDPV Act application and any proceedings were an abuse of process including on grounds of foredoomed to failure.
b)did not take into account material considerations: (i) the NSWPF for an alleged assault at the school gate on 27 May 2022 initially restrained the appellant's liberty at his son's school whilst in close proximity to his 10-year old son and in the presence of the school's Relieving Principal, seized his personal property, incarcerated him in a cage of a police van and a cell at … Police Station; (ii) the NSWPF at … Police Station, after “de-arresting” the appellant as the NSWPF admitted to the appellant that there never was any assault at the school gate that justified any arrest, then continued the abuse of process by detaining the appellant to make the CDPV Act application; (iii) character references of [a senior barrister] and [a barrister] of counsel; and (iv) [a Magistrate] on 22 August 2022, said, inter alia, ... as matter of fairness, the police need a bit more ... Suburb D is a busy public place ... The child could run into traffic. If this happened a parent would be criticised. A parent has a duty. Can act to a reasonable degree ... .
c)erred at law in not providing adequate reasons or assigning intelligible reasons to the appellant's 21 June 2022 affidavit and documents, and Father's written submissions provided under 21 April 2022 Order 4 at [80] - [82].
d)plainly unreasonably and unjustly, did not allow into evidence the appellant’s 6 September 2022 affidavit at [6] - [42] and Annexures D2 to D6 as to how and why the CDPV Act application and/or interim orders under the CDPV Act were withdrawn and dismissed at the Local Court.
(As per the original)
It appears that by this ground the father seeks not to disturb any order, but rather to again have exonerating findings of fact made by us, however that is not the function of an appellate court, no matter how legitimately the father may have been distressed by the police action against him. We do not propose to consider this ground further, as plainly the impugned finding was inconsequential.
Ground 20 fails.
Ground 21 – The child’s wishes
This ground provides:
21)The primary judge erred at [130] and [168] (3rd sentence) in respect of the child's views and wishes, in that the primary judge:
a)did not apply correct principle or the law from: (i) Ralton & Ralton[2017] FamCAFC 182 at [163] “... it was accepted that [the child] expressed fear of his father but the relevant inquiry was as to why this was so” and [176] “... indeed his expressed fear of his father, were influenced by the conduct of his mother”; and (ji) authorities on parenting order obligations that included: Oxbourne & Ewans and Anor [2020] FamCA I25 at “76 ... it is apparent that the mothers believed an important issue such as this can be made by a child who was at that stage was 10 when any responsible adult would know that would be inappropriate and that adults make these decisions for children”; Dunlop & Duran[2019] FCCA 1025, “51 ... It is not open to a parent to say to a child words to the effect “you go if you want to, if you wish to go you go, or you make up your own mind.” ...” Malcher & Maleher[2014] FamCA 1215 “45. … Effective parenting requires a lot more than simply leaving it to children to comply with court orders”, and Stevenson and Hughes [1993] FamCA14; (1993) FLC 92-363, “… it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.”
b)mistakenly found at [168] “The evidence discussed above about the views of the child shows the child wants a relationship, and to spend time, with the father”, contrary to the 2 August 2022 Fox v Percy objective and contemporary document of Professor MM recording the child stating, “... I don't want to be around him”, “… Dad wants to spend time with me but1 don't want to spend time with him” and “… I can't make up with him, maybe when lam older but not now” (11/08/22 ex 14 only produced that day by the respondent and inspected by the appellant at the lunch break, after the respondent did not comply with the primary judge's 21 July 2022 Note C that the file be provided to the appellant in “sufficient time” (Professor MM's 2 August 2022 ex 14)).
c)did not take into account material considerations of: (i) Professor MM's 2 August 2022 ex 14; (ii) NSW Government-DCJ s 69ZW material pages 1, 2 and 7 - 9 (11/08/22 ex 10 from subpoenaed material No. 40 that the appellant was only given access to on that day), in which the reporter detailed the mother's impact on the child, “Mother regularly speaks negatively about the father in front of the children and involves them in the issues” and “… X gets so anxious he hides under a blanket when mother is talking to him”; and (iii) not disputed or unchallenged literature learning and guidance materials (11/08/22 ex 12) that the appellant was informed by and relied on.
d)erred at law in not providing adequate reasons or assigning intelligible reasons to Father’s written submissions provided under 21 April 2022 Order 4 at [57] - [76] and Outline re Division 13A that included authorities on parenting order obligations not even cited in the primary judge's Judgment.
(As per the original)
We have already recited [168]. Paragraph [130] provides:
130.The ICL and the mother argue the child’s views should be given weight. I give weight to the child’s desire for the parental conflict and litigation to end. A report of the child’s therapist, Professor MM, was tendered into evidence. Professor MM noted in that report that the child currently does not wish to spend time with the father, but acknowledged that this might change in the future, for instance by having dinner with the father once a week. I give weight to the child’s views that he would like to spend time with the father in accordance with his wishes.
The gravamen of the father’s case at trial was that the child wanted to have, and had, no relationship with him, because the mother had alienated the child from him. Thus paradoxically, in this ground the father emphasises the child’s articulations of not wanting to spend time with him so as to prove, in effect, the alienation and destroyed relationship.
However on the totality of the evidence, it was well open to the primary judge to conclude that the relationship between the father and the child was not destroyed, and that the child wanted to spend time with him when he wished to. The evidence did not compel a conclusion to the contrary.
Ground 21 fails.
Ground 22 – Child’s relationship with father destroyed
This ground contains many sub-grounds, and extends to some five pages. It is therefore set out in the appendix to these reasons. But in short form, and adopting the father’s heading to the relevant discussion in his Summary of Argument, the ground contends that the primary judge erred by failing to find that the child’s relationship with the father had been destroyed, and needs healing.
We have previously recited the relevant impugned paragraphs of the primary judge’s reasons, (except for [71], the relevance of which escapes us) and we have sufficiently addressed the challenge to the finding that the child’s relationship with the father was not destroyed when dealing with Ground 21. It therefore only remains to deal with a subsidiary challenge made under this ground, which impugns the primary judge’s conclusion that the failure by the Court to earlier deal with the father’s contravention applications did not cause or contribute to the situation in which the father and child now found themselves. Such a conclusion was well open on the evidence, as the only contradictory material was of great generality or simply comprised the father’s assertion to that effect. Moreover, even if the primary judge thereby erred, how that error was of any materiality quite escapes us.
Ground 22 fails.
Ground 23 – Credibility findings
This ground provides:
23)The primary judge erred at [10] and [97] (last two sentences) in respect of the appellant's credibility, evidence, and unfavourable impression, in that the primary judge:
a)did not apply correct principle or the law in Earthline that there was too fragile a base to support an unfavourable impression about the appellant, and the documentary evidence in this case provided significant support to and corroborated the appellant.
b)erred at law in not providing adequate reasons or assigning intelligible reasons concerning: (i) any specific example in the appellant's post-trial affidavit evidence and 21 July 2022 cross-examination that the appellant has overstated or distorted his evidence, including the time, place and manner of any incident at the school or elsewhere; (ii) evidence of the appellant that has not been denied or answered by the respondent in evidence; (iii) evidence of the appellant that had not been directly challenged in crossexamination; and (iv) the Earthline and Fox v Percy documentary material supporting the appellant that was not subject to any satisfactory answer from the respondent.
(As per the original)
The relevant paragraphs of the primary judge’s reasons are as follows:
10.The circumstances of this case also prompt several further introductory comments. Both parents presented as somewhat piteous, careworn, and exhausted by years of warfare. The level of antipathy and distrust between them was palpable. These factors conspired to devalue and distort their evidence and credibility. Neither party presented as entirely satisfactory witnesses. Both tended to overstate their positions. To the extent necessary, I will indicate in the course of these reasons where I prefer the evidence of one over the other.
…
97.Both parties were cross-examined. I referred earlier to my unfavourable impressions of each as a witness. I add here the following comments. The mother did not answer questions directly. The father appeared to be fixated with the conduct of the mother, and his focus appeared to be upon punishing her for false allegations. This had the effect of distorting his evidence.
As briefly argued, under this ground the father asserted that those findings were not open as they were contrary to uncontroversial facts or uncontested testimony, however he did not further elaborate upon that, and particularly, did not identify the uncontroversial facts or uncontested testimony which precluded the rather benign findings recited above. Absent such elaboration, this ground must fail. In any event, the gently unfavourable impression which it appears the primary judge formed in relation to the father’s presentation did not materially inform the outcome.
Ground 24 – Mother’s falsehoods and lies
Again, this ground was extremely prolix, spanning some four pages and containing a plethora of complaints (although the space allocated to arguing them in the father’s Summary of Argument barely exceeded one page, and only ran to four paragraphs). We have set out the ground in the appendix to these reasons. We have also previously recited the paragraphs of the primary judge’s reasons to which this ground relates.
As argued, this ground became a claim that the primary judge erred by not finding that the mother’s various claims about the father were without substance and false (father’s Amended Summary of Argument filed 28 February 2023, paragraph 28).
We are not persuaded that the evidence compelled such a conclusion, but rather that the primary judge’s impugned comments were well open on the evidence. Again, the reasons challenge was not argued, and we shall not address it.
Ground 24 fails.
Ground 25 – Unreasonable or plainly unjust
This ground provides:
25)The primary judge's parenting determination on all the facts and correct law or principle are unreasonable or plainly unjust.
(As per the original)
The father’s Amended Summary of Argument at paragraph 32 only said this about this ground:
32.… House v The King applies. The mother incorrectly denies to Mr W that never been diagnosed with mental issues / illness (01/02/21 XX82, ex 1).
We simply do not understand the complaint as argued.
Ground 25 fails.
THE CONTRAVENTION APPEAL
We have briefly touched upon the unfortunate turn of events which occurred after judgment was first reserved on 10 March 2021. Relevant to these grounds, it seems clear that changeovers of the child into the father’s care became difficult, and eventually the mother ceased to make the child available. This precipitated numerous applications being filed by the father, some purportedly seeking enforcement of the extant parenting orders (albeit thereafter couched in the style of a contravention application) but others expressly in the form of an Application – Contravention.
The list of applications include the following:
(a)Application in a Case filed by the father on 27 August 2019;
(b)Application in a Case filed by the father on 7 August 2020;
(c)Application in a Case filed by the mother on 27 August 2020;
(d)Application in a Case filed by the father on 25 May 2021;
(e)Application in a Case filed by the father on 20 July 2021;
(f)Application in a Case filed by the mother on 22 September 2021;
(g)Application – Enforcement filed by the father on 11 November 2021;
(h)Application – Contravention filed by the father on 28 January 2022;
(i)Application – Contravention filed by the father on 15 March 2022;
(j)Application in a Proceeding filed by the mother on 31 May 2022;
(k)Application in a Proceeding filed by the mother on 22 June 2022; and
(l)Application in a Proceeding filed by the father on 6 September 2022.
In his reasons, the primary judge explicitly dismissed all but the 20 July, 22 September and 11 November 2021 applications, those three being dismissed “to the extent necessary” (at [173]) for reasons which we shall discuss shortly.
Significantly however, the contravention appeal only relates to three of the applications listed above, being those filed 28 January and 15 March 2022 (Ground 14) and 20 July 2021 (Ground 15). Nonetheless it is important to understand that they were but three of 12 applications which were dealt with by the primary judge in his reasons.
Ground 14 – The Contravention Applications filed 28 January and 15 March 2022
This ground extends to some three pages, and contains numerous sub-grounds. Accordingly, we have included it in the appendix to this judgment.
The father’s Summary of Argument dealt with the various challenges advanced by this ground in three groupings, and it is convenient to also do so in these reasons, although it should be noted that not all complaints advanced in the grounds were addressed in the Summary of Argument, in which event we will not address them either.
At the outset, it is convenient to set out the relevant parts of the primary judge’s reasons for dismissing these applications:
154.Section 69ZN sets out principles for conducting child related proceedings. These include the need to consider the impact of the proceedings on the child (s 69ZN(3)). The general duties of the Court in giving effect to the principles includes determining which issues in the proceedings require full investigation and which may be disposed of summarily. Section 69ZR(1)(b) and (c) grants the Court powers at any time to determine a matter arising out of the proceedings or make an order in relation to an issue arising out of the proceedings. These powers may be exercised by the Court on its own initiative (s 69ZP).
155.Moreover, in my view, these provisions in Division 12A fall within the definition of “family law practice and procedure provisions” as defined in s 67(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), being provisions made by or under the Act with respect to the practice and procedure of this Court (the Federal Circuit and Family Court of Australia (Division 1)). Section 67(3) of the FCFCOA Act imposes the following duties on the Court:
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
156.The overarching purpose and its objectives are set out in s 67(1) and (2) of the FCFCOA Act:
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1:See also paragraphs 5(a) and (b).
Note 2:The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
157.The provisions of Subdivisions B and C of Part VII of the Act (ss 69ZN–69ZR) must therefore be interpreted and applied in a manner which best promotes the overarching purpose and its objectives.
158.It also seems to me that in proceedings in which the best interests of a child are the paramount consideration, the achievement and promotion of the overarching purpose must also be directed to the child’s best interests.
…
161.I turn then to the third category, the father’s contravention applications filed on 28 January 2022 and 15 March 2022.
162.The father brings these applications under Division 13A of Part VII. Division 12A applies to proceedings under Division 13A (s 69ZM(1)). Accordingly, the considerations above at [155]–[158] apply equally to the contravention applications.
163.The father’s contravention applications relate to interim orders and circumstances in which the mother withheld the child, including the orders made by Schonell J on 6 December 2021. The father does not seek make up time. As noted, he does not seek any face to face time with the child until Term 3, 2023. He makes no specific proposal for make up time thereafter.
164.There was some evidence and cross examination at the hearing on 20 and 21 July 2022 dealing with the questions of prima facie contravention and reasonable excuse. The mother argued that contravention was not established, and in any event, she had a reasonable excuse for any contravention. There was, however, clear evidence, for example, that the mother emailed to the father a refusal to comply with the orders made on 6 December 2021 almost immediately after they were made. She accepted this in cross examination and expressed contrition for an ill-considered outburst.
165.Even if contraventions are established without reasonable excuse, the powers of sanction in Subdivision B of Division 13A are discretionary. It open to the Court to decline to order any sanction at all.
166.The father’s position was that the mother should be found to have contravened interim orders and be placed on a bond for two years. This, so he argued, would be the only way to ensure her future compliance with Court orders. This may have more force if he continued to seek make up time and final orders for the child to spend either equal or substantial and significant time with him. But, he does not. It is hard to see the point of a bond for two years when the only orders for the mother to comply with will be facilitating electronic communication between the child and the father, and time with the father according to the child’s wishes.
167.The position of the father supports an inference that he is more focussed on punishing the mother than on the best interests of the child. This is supported by the clear outrage by which he has been seized as a result of the mother making allegations of family violence against him, her complaint to the YY Association, and the AVO proceedings, even though these have now been dismissed. This is not consistent with the child’s best interests.
168.As noted already, he claimed that his relationship with the child had been “destroyed” in part by the failure of the Court to deal with his contravention applications expeditiously. But, this is not a tenable argument. The evidence discussed above about the views of the child shows the child wants a relationship, and to spend time, with the father. The relationship is not destroyed. The father is refusing to spend time with him for what he perceives to be his own protection. The state of the relationship is a consequence of several factors, most obviously the numerous interim applications after the first part of the final hearing, his own conduct leading to the AVO proceedings, and his refusal to spend time with the child until Term 3, 2023.
169.Otherwise, it is obvious from the history of these proceedings recorded above that the Court should endeavour as far as possible to release the child from the burden of being subject to this litigation and attenuate the possibility of further litigation. The history of these proceedings leaves no room for doubt that these parents should be disengaged from litigation as completely as possible to help lessen the opportunity for further conflict, in the best interests of the child. The circumstances cry out for finality. In the unusual circumstances of this case, this is best way to promote and achieve the overarching purpose and its objectives.
170.For these reasons, I do not consider it necessary to make any determination about contravention or reasonable excuse, because I would not exercise any discretion to impose a sanction even if the contraventions were established without reasonable excuse. The contravention applications will be dismissed.
Sub-grounds (a)-(c)
The primary judge dismissed the relevant Application – Contravention as explained above.
The father firstly says by sub-ground (a) that the primary judge could not avoid determining the substance of the application in the way that he did. Particularly, reliance was placed upon various sections of the Family Law Act 1975 (Cth) (“FLA”) which the father argues mandates the Court take certain action if specific matters are established. It was said that by adopting the course which he did, the primary judge did not “hear and determine” any of the contraventions and thus did not undertake a “real” exercise of jurisdiction.
Neither the appellant’s Notice of Appeal nor his Summary of Argument particularises the alleged want of procedural fairness asserted in sub-ground (b), and we shall not consider it further.
Finally under sub-ground (c) the father contends that the primary judge, by concluding that, even if the contraventions were established, in the exercise of the thereby enlivened discretion, no penalty would be imposed, failed to exercise that discretion “fairly and reasonably having regard to the subject matter, scope and purpose of the legislation” (father’s Amended Summary of Argument filed 28 February 2023, paragraph 3.3 (footnote omitted)).
However, all those challenges fail to engage with the mandatory task of applying the family law practice and procedure provisions in a way which best promotes the overarching purpose (s 67(3) of the FCFCOAA), particularly given the father’s vehement refusal to spend time with the child until the second half of 2023.
Section 69ZN of the FLA is as follows:
69ZN Principles for conducting child‑related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
(Emphasis added)
“Child related proceedings” are defined by s 69ZM to (relevantly) be proceedings wholly under Pt VII of the FLA, which part includes Div 13A which deals with contraventions of parenting orders. Hence there can be no doubt that s 69ZN applied to the contravention applications of 28 January and 15 March 2022.
We have set out s 67 of the FCFCOAA in the course of reciting [155] and [156] of the primary judge’s reasons above. Again there can be no doubt that section applied to the contravention applications filed 28 January and 15 March 2022.
It is plain that in the course of dismissing those applications, the primary judge telescoped forward, and determined that in the circumstances, no penalty would be imposed by him even if the contravention were established, and no reasonable excuse proved (at [166]). More, his Honour was worried that the father’s motives were not consistent with the child’s best interests (at [167]) who needed to be released “from the burden of being subject to this litigation and attenuate the possibility of further litigation” (at [169]).
Such considerations, and a judicially economical approach, are explicitly endorsed by both s 69ZN of the FLA and s 67 of the FCFCOAA. The primary judge therefore did not err in having regard to them, and otherwise no error in the exercise of the discretion of the kind identified in House is established.
Moreover it cannot be overlooked that by pressing contravention proceedings relating to extant orders, and yet contending that those very same orders were no longer in the best interests of the child, the father was at once seeking to enforce and dramatically vary those orders. Whilst it may perhaps be arguable that, strictly speaking, there was no abuse of process justifying the dismissal of the contravention proceedings under s 45A(4) of the FLA, nonetheless the incongruity of the father’s quite inconsistent actions was rather remarkable. If it were that the father was only pressing the contraventions to seek to have imposed on the mother a bond, so as to enforce future orders, then the issue of abuse of process loomed large.
On any view however, the inconsistent actions by the father warranted the primary judge not proceeding to devote time to the contravention complaints, especially given his conclusion as regards penalty.
In any event, success in the contravention appeal would inevitably lead to the application/s being remitted for rehearing. However that would be absurd, as the orders which those applications seek to enforce no longer exist.
Sub-grounds (d)-(j)
As argued, these sub-grounds appear to assert that the primary judge failed to take into account a relevant consideration, namely the mother’s asserted lack of contrition for her alleged breaches of the interim parenting orders. There is no reason to think that the primary judge did not understand the father’s allegations in this regard.
Sub-ground (k)
This ground contends an inadequate exposure of reasoning by the primary judge. However the father’s Summary of Argument did not identify the alleged inadequacy, nor can we see it for ourselves.
Outcome
No aspect of Ground 14 as argued is established, and it fails.
Ground 15 – The 20 July 2021 application
This ground runs to some two pages and hence we have included it in the appendix to these reasons.
We cannot see that [71] bears on this ground, and hence will not recite it. At [171]–[173] the primary judge said:
171.It should also be noted that, by the judgment delivered on [21] December 2021, Schonell J dealt with other applications by the father filed on 20 July, 22 September, and 11 November 2021: Self & Bachman (No 2) [2021] FedCFamC1F 335. Schonell J recorded in his judgment that the father, despite alleging contraventions, wanted to “put the matter back on track” and sought compensatory time, but his affidavits made it clear that he did not want the mother punished for contravention: Self at [8]. It is true that the hearing before Schonell J did not proceed as a contravention hearing in accordance with Part 11.2 and r 11.69 in particular. At [15], his Honour recorded:
In view of the father’s desire to resolve the time arrangement and to “put matters back on track”, and in the view of the fact that the child had not seen his father for over four months there was a need to proceed expeditiously and to provide a pathway to finality of the litigation. The court determined that a further delay in the determination of the final hearing was not in the best interests of the child and that the parties applications could be heard and determined within the time frame allocated of one day without cross examination.
172.The father claimed that his Honour in truth undertook an interim hearing. This is correct. But, he also claimed that as a result, there was no determination of his contravention applications listed before Schonell J, and therefore they remained on foot. This does not appear to be correct, because it is also true that the father clearly acquiesced in the approach adopted by Schonell J. He elected to accept an interim hearing without cross examination or factual findings, to achieve a fresh regime of parenting orders, rather than pressing for the exercise of the jurisdiction to vary parenting orders in s 70NBA of the Act based on findings of contravention or reasonable excuse.
173For this reason, to the extent necessary, the applications filed on 20 July, 22 September and 11 November 2021 should be dismissed. In addition, for the same reasons given above at [162]–[170], and again to the extent necessary, those applications should be dismissed.
Nothing advanced in the father’s Summary of Argument engages with the primary judge’s explanation for why the application was implicitly dismissed on 21 December 2021 other than to say the primary judge erred in so concluding.
Moreover, it is plain from the transcript of the hearing before Schonell J on 16 December 2021, that his Honour determined to deal with all applications then before him in a way so as to ensure they could be dealt with in one day, rather than having to be put over. Thus his Honour said:
HIS HONOUR: Thank you, [the father]. For reasons that I will make apparent in my judgment, I propose to deal with this matter in the following way: I propose to deal with it as an application seeking parenting orders by the father whereby, he seeks compensatory time with his son and a series of orders to ensure that the existing orders that have been made by the court are complied with. I also propose to deal with the mother’s application to vary the existing orders. I don’t propose to permit cross-examination of the parties. I fail to see how that could be in the best interests of anybody at this stage of the proceedings, and I will invite you, [the father], in light of those comments, to identify to me, if you would, sir, the documents you rely upon.
(Transcript 16 December 2021, p.9 lines 10–19)
The “application seeking parenting orders…whereby, he seeks compensatory time with his son” self-evidently included the 20 July 2021 enforcement application filed by the father, and hence the orders subsequently made on 21 December 2021 were intended to determine that application, albeit in conjunction with others. Any doubt about that evaporates given what Schonell J said in the reasons for those orders at [8]–[15], [17] (especially the reference to the father’s affidavit sworn 22 July 2021) (Self & Bachman (No 2) [2021] FedCFamC1F 335).
That the 20 July 2021 application was not formally dismissed on 21 December 2021 was likely an oversight. However, that the primary judge, out of an abundance of caution, nonetheless tidied up the loose ends of nominally outstanding applications by formally dismissing them, did not thereby mean that his Honour erred, nor does it give rise to another opportunity to appeal from the 21 December 2021 orders by the backdoor.
None of the other challenges advanced by these grounds were addressed by the father in his Summary of Argument, and therefore we do not propose to deal with them either.
Ground 15 fails.
THE PROPERTY APPEAL
The property aspect of the trial before the primary judge was, it seems, not given much, or at least any proper, attention by the parties. His Honour was therefore not in an enviable position when he came to make findings to underpin a just and equitable division of the parties’ property. Moreover, such assistance as the parties deigned to give the primary judge was, at least insofar as it came from the self-representing father, cast in the convoluted and unhelpful way in which, unfortunately, most of his documentation in this case has been prepared.
The primary judge found that the parties had assets of $10,085,021, liabilities of $2,606,331, superannuation of $1,566,339 and hence, once add backs of $153,338 were included, the net pool including superannuation was $9,198,367 (at [257]).
His Honour determined that contribution based entitlements favoured the mother, such that she was entitled to 65 per cent of the pool, and the father 35 per cent (at [302]). The primary judge then considered the factors listed at s 90SF(3) of the FLA, which he determined favoured the mother as to a further one per cent of the net pool, resulting in an overall adjustment of 66 per cent in favour of the mother, and 34 per cent to the father (at [319]) which result was adjudged to be just and equitable (at [326]).
d)was guided by extraneous or irrelevant matters and/or objectively there was a predisposition not to deal with the appellant's Applications under Division 13A of Part V11, as on 21 April 2022 the primary judge made this Note on the Court's record, “B. The father seeks that [the primary judge] determine his outstanding contravention applications on 7 July 2022, however the court takes the view that those matters should be dealt with in the ordinary procedure concerning contraventions of interim orders”, and on 22 April 2022 the National Contravention List emailed the appellant, “With respect to the Contravention Applications, I have confirmed with Chambers that they will not be determined by the [primary judge] at interim hearing on 7 July 2022. However, they remain listed on 29 April 2022 before Senior Judicial Registrar Flintoff for directions hearing. The Contravention Applications will be case managed in accordance with the Practice Direction, which can be found here: Family Law Practice Direction - National Contravention List | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)”
e)mistakenly found at [163] and [166] “The father does not seek make up time ...” and about ensuring the respondent's future compliance with Court orders, contrary to the appellant sought: (i) make up lime or compensatory time in the Father's written submissions provided under 21 April 2022 Order 4 at [20] and under the “Compensatory time” heading in Outline re Division 13A Consequences of failure to comply with orders, and other obligations, that affect children in Part Vl1 Children (Outline re Division 13A) handed to the primary judge on 11 August 2022; (ii) substantial and significant time to be implemented from July 2023 (proposed orders 1A, 1B, 14 - 18 pp 71 - 72, 78 - 80 of the judgment); (iii) permanent injunctions or restraints on the mother regarding schooling and for changeover to occur away from the respondent's residence and only at school or Handover Location E (proposed orders 11, 11A, 12 and 19 pp 77 - 78 and order 19 pp 81 - 82 of the judgment); and (iv) compliance with parental responsibility orders and obligations (proposed order 2A(f) p 72 of the judgment).
f)mistakenly found at [163] and [164] that:
i)Schonell J made orders on 6 December 2021, contrary to interim parenting orders were made by Schonell J on 2l December 2021 to apply during the December 2021 / January 2022 School holidays and from the commencement of School Term 1 2022;
ii)“... the mother emailed to the father a refusal to comply with the orders ... almost immediately after they were made. She accepted this in cross-examination and expressed contrition for an ill-considered outburst”, contrary to within minutes of the 21 December 2021 judgment / orders of Schonell J the mother emailed at 3:26 pm to the father that she unilaterally would not comply with orders 3(g) and (h) as she was going on a holiday and no contrition was expressed by the respondent for that email (20/07/22 XX25.40); and
iii)there was any contrition, within the meaning the law attributes to that expression, for the respondent's 25, 26 and 27 December 2021 emails and about which the respondent was cross-examined on 20 July 2022 by use of the Aide memoire re mother's contraventions in chronological order, time spent with father and Court proceedings (11/08/22 ex 6) (Aide memoire re mother's contraventions ex 6).
g)mistakenly referred at [164] to, “The mother argues that contravention was not established, and, in any event, she had a reasonable excuse for any contravention”, contrary to: (i) the respondent's 8 July 2022 affidavit, settled with the assistance of counsel, was the answer to the contraventions as alleged by the father (20/07/22 XX30.32, 56.18), and that affidavit did not adduce any evidence in refutation or suggest any reasonable excuse for contraventions on 12 November 2021 of the 26 July 2016 Order 4.2 “every alternate weekend” order and 6 December 2018 Order 3 changeover order, and on 23 February 2022 of Schonell J's Order 4; and (ii) the respondent's 8 July 2022 affidavit did not include evidence capable of satisfying her reverse statutory onus on any other occasion.
h)mistakenly referred at [167] to “...an inference that he is more focused on punishing the mother than on the best interests of the child”, contrary to the appellant at all material times has not wanted the respondent “punished (eg fined or imprisoned) for the breach” as explained in the Family Court's Application- Contravention, May 21 2018.
i)was guided by extraneous or irrelevant matters at [168] that occurred after the time periods of each Application - Contravention.
j)did not take into account material considerations of: (i) the respondent’s counsel on 20 July 2022 confirmed that neither the 3-year General Registered Psychologist Mr F (Mr F) and General Practitioner Dr B (Dr B) were to be called by the respondent in either Application - Contravention, which meant that the respondent was unable to make out her reverse statutory onus in s 70NAE; (ii) the respondent was responsible for school conflicts; and (iii) not disputed or unchallenged literature learning and guidance materials (11/08/22 ex 12) that the appellant was informed by and relied on as to the appropriate responses to the respondent not complying with parenting orders and preventing or disrupting the child time with his father.
k)erred at law in not providing adequate reasons or assigning intelligible reasons to the appellant's evidence and arguments, including Earthline documents and Fox v Percy objective and contemporary documents, in the Father's written submissions provided under 21 April 2022 Order 4, Aide memoire re mother's contraventions ex 6 and Outline re Division 13A setting out four classes of contraventions and authorities on parenting order obligations.
(As per the original)
Ground 15:
15)The Family Court, this Court and/or the primary judge erred at [71] and [171] - [173] in not hearing and instead dismissing the Application in a Case filed 16 July 2021, sealed on 20 July 2021, in respect of the respondent not complying with 28 November 2016 Order 10 half school holidays on eight out of nine nights commencing 3 July 2021, 6 December 2018 Order 3 changeover on 14 May and 3 July 2021 and 6 December 2018 Order 2 equal shared parental responsibility, in that the Courts and/or the primary judge:
a)constructively failed to exercise jurisdiction under Division 13A of Part VII.
b)failed to accord the appellant procedural fairness.
c)failed to act according to the law and correct principle including:
i) FCFCOA Act s 67(1) once it commenced;
ii)FL Act s 65DA(2) parenting order obligations that are expressly incorporated in the parenting orders;
iii)authorities on parenting order obligations;
iv)Court guidance (original bold emphasis) in the Explanatory Statement issued by the authority of the Judges of the Family Court of Australia to the FAMILY LAW RULES 2004, “CHAPTER 21 - Enforcement of Parenting Orders, Contravention of Orders and Contempt Overview The summary of the chapter sets out the philosophy behind the drafting of this chapter and is aimed at encouraging parties to consider whether the result they want is enforcement or punishment. The rules encourage the use of the Form 2 application [Application in a Case] instead of the Form 18 [Application - Contravention] or 19 [Application - Contempt] where the applicant seeks to enforce an order and “put the matter back on track” ... and would be used to seek enforcement where the applicant does not seek to have the respondent sanctioned but seeks a solution to a one off problem”;
v)Family Court's Application - Contravention, May 21 2018, “If you don't actually want the other party punished (e.g. fined or imprisoned) for the breach but rather want a speedy remedy to ensure the resumption of the arrangement set out in an earlier order, you may be able to file an Application in a Case ... rather than an Application – Contravention”; and
vi)Family Law Rules 2004 (Cth) rule 21.05 that required a hearing must be fixed as near as practicable to 14 days after the date of filing, whereas the appellant's 16 July 2021 Application in a Case was not mentioned by any Court until l4 December 2021.
d)mistakenly at [71] erred in reasoning that this Application in a Case was only listed on 16 December 2021 for interim hearing, which is not what the primary judge ordered on 14 December 2021.
e)mistakenly at [172] erred in reasoning, “... it is also true that the father clearly acquiesced in the approach adopted by Schonell J. He elected to accept an interim hearing without cross examination or factual findings, to achieve a fresh regime of parenting orders, rather than pressing for the exercise of the jurisdiction to vary parenting orders in s 70NBA of the Act based on findings of contravention or reasonable excuse”, in that: (i) these findings are demonstrably incorrect and plainly not reasonably open as Schonell J decided; “... For reasons that I will make apparent in my judgment, I propose to deal with this matter in the following way ...” (16/12/2021 P-9.10 - .29); (ii) the appellant then twice put on the record “your Honour has made a ruling” consistent ·with accepted principle that it was not open to the father to cavil with the ruling just made (P-9.36 and P-10.1); and (iii) [2021] FedCFamClF 335 at [15] per Schonell J confirmed “The Court determined that ... without cross-examination”.
f)erred at law in not providing adequate reasons or assigning intelligible reasons to the appellant's incontrovertible and unchallenged 16 July 2021 affidavit and exhibits (11/08/22 ex 8) that include Earthline documents and Fox v Percy objective contemporary documents, Father's written submissions provided under 21 April 2022 Order 4 at p 16.3 and [72] and Aide memoire re mother's contraventions ex 6 pp 1.7 - 2.2.
(As per the original)
Ground 22:
22)The primary judge erred at [71], [123], [133] (last sentence) and [168] in respect of the appellant's factual experiences that were not conflicts caused by him as they arose from the respondent's course of conduct that contributed to destroying the child's meaningful relationship with his father, that relationship needs healing and Court failures to deal with the respondent's contraventions in a timely manner or at all, in that the primary judge:
a)mistakenly found at [168] “... the failure of the Court to deal with his contravention applications expeditiously … is not a tenable argument”, contrary to:
i) what compliance with FCFCOA Act s 67(1) required;
ii)the objective chronology of Court delays and inaction in response to the appellant's applications concerning parenting orders were not being complied with, including the 16 July 2021 Application in a Case not being mentioned until 14 December 2021, the 23 September 2021 Application-Enforcement was erroneously rejected by Registrar Chayna reasoning that such an Application could only be for a money claim, which required the father to bring an Application - Review before McGuire J, and the Application-Contravention accepted on 24 January 2022 was not listed for hearing until 10 July 2022;
iii)there was no Court enforced, “put the matter back on track”, “speedy remedy to ensure the resumption of the arrangement” and “Alleged breaches of Court orders will be taken seriously and dealt with quickly” (as referred to in grounds 14 and 15);
iv)the Court took no steps to ensure compliance by the respondent with parenting orders, when the case was: mentioned by the primary judge on 25 August, 23 September and 14 December 2021, 21 March, 23 March and 21 April 2022; before McGuire J on 16 November 2021; and mentioned by Senior Judicial Registrar Flintoff on 18 February and 29 April 2022;
b)did not take into account material considerations that the father's experiences of Court delays presented an obstacle in delaying efforts to commence a process to heal the relationship, the lack of early intervention on the respondent's non-compliances and Court inaction, were corroborated by not disputed or unchallenged literature learning and guidance materials that the appellant was informed by and relied on (11/08/22 ex 12):
c)mistakenly found that the child's meaningful relationship with his father was not destroyed, contrary to the mother's course of conduct that included:
i)at the trial, the respondent admitted at various times failing to comply with orders of the Court in relation to parenting and associated matters and she prevented the child staying with the appellant in compliance with the orders (04/02/21 XX134.3 - .21);
ii)commencing 3 July 2021 and continuing until at least 30 May 2022, the respondent did not comply with parenting orders, starting with the respondent prevented changeover outside of Handover Location E on 3 July 2021 for eight out of nine nights of the second half of those school holidays;
iii)during subsequent COVID-19 lockdowns in 2021 and before NSW Government – Education schools reopened, the respondent did not handover the child at Handover Location E, invariably leaving the appellant waiting in his car for changeover to occur;
iv)after NSW Government - Education schools reopened, the respondent interfered with the child's changeover to his father at the school on Wednesday 27 October 2021, Friday 12 November 2021 “Mum told me that l can go with you but I don't need to go if I don't want to” and he could choose to leave, Wednesday 2, Friday 11, Wednesday 16, Wednesday 23, Friday 25 February 2022 and Friday 27 May 2022;
v)the respondent picked up the child early from school on Friday 29 October, Wednesday 3, Wednesday 10, Wednesday 17, Wednesday 24, Friday 26 November, Wednesday 1, Wednesday 8, Friday 10 December 2021 and Wednesday 16 March 2022;
vi)the respondent's admissions in her December 2021 emails and 20 July 2022 crossexamination confirmed she would not comply with Schonell J's interim parenting orders during the 2021 / 2021 School holidays commencing Wednesday 29 December 2021 and continuing until Saturday overnight on 29 January 2022, which included Schonell J's orders had only “suggested” dates, that it will be years before the child will see the father and it was time to stop trying to accommodate his dad;
vii)Friday 25 February 2022 was the first alternate weekend the child spent with the father since August 2021, which required assistance from NSW Government - Education senior employees, NSW Government - DCJ (called by the school to confirm that the child should go with the father under Court orders), NSWPF officers and NSW Ambulance officers who did a mental health assessment that agreed with the Mental Health Care Plan of Dr B that the child's self-harm comments, “... appear to be attention seeking and attempts to manipulate the situation”, after the mother turned up uninvited at the school and had to be escorted off the school premises as she would not leave (11/08/22 ex 4);
viii)the child ran away from school on 11 November 2021 following his mother's role model in a manner the NSW Government - DCJ considered to be child abuse and a child protection matter (Annexure AC45 Second Application - Contravention Affidavit pp 89 - 90), Wednesday 2, Friday 11 March, Friday 29 April (after the respondent took the Year-5 child to a high school orientation between 9.30 am to 12.50 pm without consulting the appellant) and Friday 27 May 2022 (after the respondent took the child to a high school interview between 12.30 pm to 3 pm without consulting the appellant);
ix)the respondent kept the child home “sick” on Wednesday 27 April 2022;
x)the child's made statements to the NSWPF, in the presence of the respondent, such as on 30 May 2022 at […] Police Station, “... I mean after I got home and he got arrested, I was shocked and happy” (21/07/22 ex F).
d)did not take into account material considerations that the father experienced: (i) delays and the passage of time; (ii), it was difficult, if not impossible, for a parent-child relationship to heal when the mother prevented and disrupted contact with the child by not complying with parenting orders; (iii) “3. Rigid/extreme child reaction to RP [Rejected Parent], (e.g., threats to run away or harm to self or other, acting out or aggressive behavior)”; and (iv) the positive affective parent-child bond was severed and extremely difficult to reinstate or it came to a halt, all corroborated by not disputed or unchallenged literature learning and guidance materials that the appellant was informed by and relied on (11/08/22 ex 12).
e)did not take into account material considerations in respect of Mr F who saw the child on 23 occasions from 5 October 2021 to early May 2022 under the primary judge's 23 September 2021 interim order 4, “The Applicant Mother ... shall have sole parental responsibility for ... the child ... on an interim basis, limited to medical issues concerning the child's psychological presentation and treatment”, and Professor MM saw the child on seven occasions from 23 May 2022 until 2 August 2022:
i)the Health Care Complaints Commission (HCCC) and Psychology Council of NSW imposed on Mr F an adverse finding pursuant to the Health Care Complaints Act 1993 (NSW) (HCCC Act) s 39(1)(d) in respect of parental alienation that the father was exposed to (Annexure S12 14 June 2022 letter in the appellant's 21 June 2022 affidavit pp 100 - 101);
ii)the respondent never provided Mr F with a copy of the 26 July 2016 Wednesday and “every alternate weekend” spend time with orders, the 28 November 2016 half school holidays order and the 6 December 2018 changeover order;
iii)the respondent implemented Mr F's 1 November 2021 “Call with Mr JJ [… - the ICL]” email to the mother. “... If possible could you not pick X up earlier dependent upon court orders? Perhaps you could have an appointment that day that can provide reason for X leaving school early”, and that advice of Mr F was never disclosed to the appellant by the respondent or the ICL and the appellant only found out about its existence from subpoenaed documents;
iv)Mr F inappropriately emailed the school Principal on 8 February 2022, “Given the complexity of this case due to court orders being refined continuously and family law not being my expertise, I am unsure of what is required from you as the school in these situations. However, if there is a legal opportunity for the school to meet X's wishes not to see his father in the moment it is important it is followed ...”, which was never disclosed to the appellant by the respondent and the appellant only found out about its existence from subpoenaed documents;
v)the father's experience with Mr F's contribution was corroborated by not disputed or unchallenged literature learning and guidance materials (11/08/22 ex 12), i.e., the mental health interventions would not succeed and were contraindicated, they have consistently failed time and time again and make matters worse;
vi)the primary judge never listed for hearing the appellant's Application in a Case made 9 November 2021, sealed 11 November 2021, to discharge the primary judge's 23 September 2021 interim orders 4 and 5 and nor did this Court hear the appellant's application for interim relief, “The father shall have sole parental responsibility for the child on an interim basis, limited to medical issues concerning the child' psychological presentation and treatment by a Child Psychiatrist or Child Clinical Psychologist on an interim sole parental responsibility order concerning the child's psychological treatment, separation anxiety from the mother, resist / refuse dynamic and parental alienation”, and instead the primary judge at [173] dismissed the November 2021 Application.
f)did not take into account material considerations of […], registered and accredited FDR Practitioner, Parenting Coordinator and Co-parenting Coach and course presenter of Family Court approved courses Parenting After Separation and Breaking the Cycle of Conflict (covering “advanced strategies”): (i) “... Unfortunately you can not change someone who is high conflict ... What you can do however, is learn to be adaptive to communication with them ... it still comes down to one fundamental thing - you only have control over yourself. You can not change who they are, you can only change how you respond to the situation. It is literally the only thing you can control ... You can not change them ... I can assure you, it remains the one constant” (appellant's 21 June 2022 affidavit at [161]); and (ii) one purpose of the 6 December 2018 changeover order was to provide “a strict routine specified with changeovers done at school pick up, thus avoiding contact with the parent” (at [107]).
g)did not take into account material considerations of the appellant's unchallenged evidence, not disputed in cross-examination, of the need for the appellant to risk manage by risk assessment: (i) healing the child's meaningful relationship with his father; and (ii) the respondent's course of conduct of making false and without substance statements exposing the father in the future to incarceration again in a cage of a NSWPF van and Police Station cell, and being subject to another invalid CDPV Act application or criminal charge.
h)erred at law in not providing adequate reasons or assigning intelligible reasons to: (i) the appellant's 21 June 2022 affidavit at [154]-[173]; (ii) NSWPF COPS Event 25 February 2022 (referred to at (c)(vii) above); (iii) NSWPF COPS Event 23 March 2022, “The school have been experiencing issues with the handover of X, with the PN [the mother] regularly picking him up early, keeping him home sick on handover days or attending the school at handover and attempting to intercept X. X has also absconded school early on handover days and this poses a serious risk to his safety given his young age of 10. The father has barely seen X in the last 8 months because of this, and the PN is blatantly breaching the court order” and “Eastern Suburbs DV team has been organised to be at the school on 25/03 to prevent a breach of the peace [by the mother] as X is handed over to his father and to ensure the safety of the young person ... similar incidents are likely to happen in the future” (11/08/22 ex 5 p 94); and (iv) the appellants' case in Aide memoire re mother's contraventions, Father's written submissions provided under 21 April 2022 Order 4 at [57] - [76] and Outline re Division 13A.
i)further erred in not allowing and taking into account, as material considerations, the appellant's 6 September 2022 affidavit at [l] - [5] and Annexure D1 concerning Mr F and further investigations involving the HCCC and the Psychology Council of NSW on 12 August 2022 imposed an adverse finding pursuant to the HCC Act
s 39(1)(d).
(As per the original)
Ground 24:
24)The primary judge erred at [97] (last two sentences), [118], [123], [126] (last sentence) and [167] in respect of the appellant's approach to “false allegations by the mother” and “the mother making allegations of family violence against him”, in that the primary judge:
a)did not apply correct principle or the law arising from: (i) Weir and Murray principles; (ii) Kuhl lies or admissions; (iii) the respondent's repeated derogatory taunts within FL Act 1975 (Cth) s 4AB(2)(d); and (iv) the respondent preventing the child from making or keeping connections with his family within s 4AB(2)(i) over about 11 months from 3 July 2021 to 27 May 2022, none of which constitute “punishing her for false allegations.”
b)mistakenly found at [118] and [167] that there was “a complaint made by the mother to his professional governing body, the YY Association” and “her complaint to the YY Association”, contrary to the respondent made two family law complaints, not one complaint, to the Office of the […] Commissioner (…) in her 19 October 2016 Complaint Form and 5 September 2019 Complaint Form (trial TB Ex AC 5.1, 5.2, 5.3, 6.1, 6.2, 6.3, 6.4 pp 62 - 110).
c)mistakenly found at [126] that the appellant had “ ... a focus on the need to rehabilitate his reputation” in his professional life, contrary to the incontrovertible and unchallenged evidence that: (i) on respectively 29 March 2017 and 23 November 2020, after preliminary investigations, Conduct Committees as delegates of the […] did not require the appellant to respond to any specific family law allegations and they were closed pursuant to section […] on the basis of lacking in substance; and (ii) the appellant self-reported the CDPV Act application to his professional body that responded in a written email, “Thank you for your candour in making the disclosure dated 7 June 2022. I confirm we will not be taking any further action with respect to the disclosure ...” (appellant's 21 June 2022 affidavit at [101], Annexure S28 pp 160- 169, 11/08/22 ex 11 21 April 2022 Order 5 Index tab 16 p 81).
d)did not take into account material considerations of the respondent's consolidated trial affidavit, read at the trial, included in identical or near identical terms the same allegations in the respondent's 5 September 2019 Complaint Form with the outcomes of (trial ex 1 tab 12): (i) at [171]-[176], 20 May 2019 “scared and intimidated” the mother ground by “standover behaviour at the Sydney Family Court” lift, not pressed with the Conduct Committee; (ii) at [195] and [278] - [287], conducted discourteously towards ICL […] ground, found to be without substance and should be closed; (iii) at [193] - [194], deliberately engaged in behaviour to increase legal fees and delay the legal process in the Family Court, not pressed with the Conduct Committee; and (iv) at [195] and [288], conducted discourteously towards Ms HH ground, not pressed with the Conduct Committee;
e)did not take into account the material consideration of the respondent's non-disclosure of her second […] complaint from the end of August 2020, when it was requested by the appellant as it was referred to in the mother's 27 August 2020 affidavits, until compelled to respond to an order for specific disclosure made on 18 January 202I.
f)made findings internally inconsistent: with [97], [118], [126] (last sentence) and [167] at: (i) [126] (second and third sentences) in respect of the professional complaint [sic - there were two] “This was unnecessarily provocative and has clearly exacerbated the extreme level of conflict between the parents without obviously achieving anything beneficial for the child”; (ii) [133] “I accept the mother has at times made negative commentary on the father” without explaining what specific comments are referred to; and (iii) [237] - [246] in respect of the mother's case advanced on loans in her consolidated trial affidavit at [116] - [120].
g)did not take into account or apply adequately material considerations of the respondent's trial loan admissions: (i) her consolidate trial affidavit did not indicate the appellant exercised any coercion over the respondent in respect of the classification of monies as loans (04/02/21 XX I04.1, 119.42 -120.9); (ii) her claim of a share of capital gains from the Suburb T property was “just fantasy” and “impossible” (XX104.27); (iii) [counsel] represented the mother in the Bachman v Self proceedings, provided independent legal advice and the mother did not read documents counsel produced under subpoena (XX106.46, 107.7 - .27, 114.35); (iii) there is no doubt her 2 July 2014 affidavit in Self v Bachman was correct in identifying “”$ E178,000” was owing as a loan to the appellant for renovations (trial ex 1 tab 18, XX113); (iv) the respondent's claim, including in her 16 November 2016 affidavit, that in 2015 the $209.000 was a gift, not a loan, was contradicted by her Fox v Percy email exchanges produced by her Chartered Accountant Mr AC recording a loan owing to the appellant, never any suggestion that it was a gift (trial ex 1 tab 27, XX120.30 - 124.18); and (v) false denials that there were loans or debts that had to be repaid to the appellant (XX105.20 - 33, .44, 108.6 - .22, 109.3 - .34 (in answer to the primary judge), 109.37, 110.1 and .37, 112.40 - 113.15, 113.45, 115.29 - .37, 120.27 - .40).
h)did not take into account material considerations of the respondent's false and without substance allegations that were advanced since her fourth solicitor was engaged in May 2019 and continued during the February 2021 trial, such as:
i)from 18 May 2019 in her affidavit, the mother advanced a case theory with false aspects that included the father engaged in family violence and control by coercing her to make false statements in the mother's 17 October 2014 affirmed Balance Sheet affidavit in Bachman v Self that admitted “Loan Mr Bachman” of $200,00 (trial ex. l tabs 13 - 17, 04/02/21 XX 115.40 - 120.13);
ii)17 July 2019 8-page letter from the mother's solicitor that included multiple serious and significant allegations against the father of family violence and causing the mother anxiety, emailed to the father whilst on school holidays with the child (trial Tender Bundle A Exhibit A12);
iii)the father may be engaging in a rare form of child abuse that the mother and her solicitor referred to as Munchausen-by-proxy mother's in her 27 August 2020 affidavits and 31 August 2020 Case Outline, known in Australia as 'Fabricated or Induced Illness by Carers' (FIIC) (trial ex 1 tab 28, 04/02/21 XX131.20-37, 11/08/22 ex 11 21 April 2022 Order 5 Index tab 6 pp 26 - 29 medical specialistCB Dr DD records), contrary to the child had chronic reflux and gastritis;
iv)the mother's 10 November 2020 “Disputed” responses to the father's Property and Financial Notice to Admit at [26] - [29], [31] - [34], [36] - [39], [102] – [108] and [114] – [115], including regarding “coercion from Mr Bachman” (trial ex 7).
i)did not take into account material considerations of the respondent's non-disclosures, false and without substance allegations after the February 2021 trial included:
i)the respondent refused to disclose she was working and earning $4,000 per week in (ground 4);
ii)on 28 June 2021, no changeover incident occurred (ground 16);
iii)8 April 2022 changeover allegations were an impossibility as the appellant was in his car (ground 18);
iv)on 27 May 2022, no assault was ever perpetrated (ground 19) and the uncontested and unchallenged eye-witness description of the school's Relieving Principal included that the appellant had the patience of a Saint and she would have acted in the same way as the appellant if it was her child (appellant's 21 June 2022 affidavit at [14] and [135]), contrary to “clear that he is outraged”, “a sense of outrage” or “clear outrage” as stated by the primary judge;
v)27 May 2022 NSWPF body camera recording, “[Ms Self]: Look, my concern is this child has been physically abused by this man because he has no capacity to manage the dynamic except through abuse and this is physical yes. Police: Has he, has he done something like this before, like in terms of, like assault? [Ms Self]: He hits the child, yes, on occasions very hard, because he doesn't do it..., he's extremely intimidating because he is a barrister and frightening. I'm shaking...” (11/08/22 ex 3), contrary to the primary judge's no unacceptable risk findings at [127] and [128];
vi)the mother's consolidated trial affidavit at [155] that was struck out by the primary judge but the same without substance allegations were made on 27 September 2021 to Mr F, on 27 May 2022 to the NSWPF “... one of my other sons has been hospitalised because of this ... [man] ...” and then to Professor MM; and
vii)the respondent's family violence and physical assault allegations in her 8 July 2022 affidavit at [225] - [229] concerning occasions that the child spent time with the appellant since 25 February 2022 and before 27 May 2022, contrary to the primary judge's no unacceptable risk findings at [127] and [128].
j)did not take into account material considerations of not disputed or unchallenged literature learning and guidance material that the appellant was informed by and relied on (11/08/22 ex 12) concerning the respondent's without substance and false statements of the father abusing the child meant that there was a severe case of parental alienation or child-contact problems and prevented normal parenting.
k)erred at law in not providing adequate reasons or assigning intelligible reasons to the appellant's evidence and submissions in Father's Closing Parenting Submissions at [37] - [41], [46], [51,6], [69.3] and [69.6] and Father's written submissions provided under 21 April 2022 Order 4.
(As per the original)
13
18
0