Bahonko v Sterjov
[2008] FCAFC 30
•27 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Todora & Todora [2022] FedCFamC1A 151
Appeal from: Todora & Todora [2022] FedCFamC1F 421 Appeal number(s): NAA 147 of 2022 File number(s): BRC 1283 of 2020 Judgment of: ALDRIDGE, TREE & ALTOBELLI JJ Date of judgment: 27 September 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders providing for respondent to have sole parental responsibility and allowing the respondent to return to Country B with the child – Where the mother and child were habitually living in Country B and visited Australia so that the child could spend time with the appellant – Where the appellant commenced proceedings before the appellant returned to Country B – Where the child was administratively placed on the Family Law Watchlist – Error of law – Adequacy of reasons – Where no error is established – Orders made for the child to be removed from the Family Law Watchlist – Appeal dismissed – The appellant is to pay the costs of the respondent and the Independent Children’s Lawyer in a fixed sum. Legislation: Australian Constitution
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
House v The King (1936) 55 CLR 499; [1936] HCA 40
Killam & Loeng (2015) FLC 93-642; [2015] FamCAFC 41
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
M v M (1988) 166 CLR 69; [1988] HCA 68
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 96 Date of hearing: 31 August 2022 Place: Brisbane The Appellant: Self-represented litigant Counsel for the Respondent: Ms Carmody Solicitor for the Respondent: Legal Aid Queensland Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Jenny Boulton Solicitor ORDERS
NAA 147 of 2022
BRC 1283 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR TODORA
Appellant
AND: MS TODORA
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE, TREE & ALTOBELLI JJ
DATE OF ORDER:
27 september 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 18 August 2022 is dismissed.
2.The appeal is dismissed.
3.Order 1 made on 22 July 2022 is discharged and the Court requests that the Australian Federal Police remove the name of the child X born … 2016 from the Family Law Watchlist at all points of international arrivals and departures in Australia.
4.The appellant will pay the costs of the respondent fixed in the sum of $4,111 and the costs of the Independent Children’s Lawyer of $4,111 within 28 days.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Todora & Todora has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & ALTOBELLI JJ:
Introduction
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) in proceedings between Mr Todora (“the father”) and Ms Todora (“the mother”). The parties have one child, X, who was born in 2016 (“the child”).
The orders provided for the child to live with the mother who was to have sole parental responsibility for her and allowed for the mother to return to Country B with the child. Consequent orders provided for the child to spend time with the father.
The father’s appeal was opposed by the mother. The Independent Children’s Lawyer (“the ICL”), who supported the father’s case at the hearing to the extent that the child should live in Australia, did not support his appeal and, instead, contended that no appealable error had been made.
In order to understand the appeal, it is necessary to set out some of the relevant history. The essential feature is that, in short, the mother and the child were habitually living in Country B and came to Australia in October 2019 so that the child could spend time with the father. The father had obtained return airfares for the mother and child who were due to return to Country B on 31 May 2020. However, before that time arrived the father commenced these proceedings. The effect was that the child was administratively placed on the Family Law Watchlist, thereby preventing her from leaving Australia. The mother attempted to do so on 14 February 2020 with the child, but was intercepted by the Australian Federal Police.
Thus, it is not correct to describe this matter as the father did, as one where the mother sought to relocate the child to live in Country B or that in trying to do so she was attempting to abduct the child. She was seeking to do no more than return to where she and the child had been habitually resident by agreement with the father prior to his actions which prevented them from leaving Australia.
Nonetheless, as the primary judge recognised, the issue before the Court was what orders were in the best interests of the child. It was never suggested that those interests were served by a summary return to Country B which was a course that may have been taken. See for example Killam & Loeng (2015) FLC 93-642. It appears that an expedited final hearing was arranged but did not proceed due to COVID-19 difficulties.
Background
The parties met online in 2011 or 2013. At that time the parties were living in their countries of origin. For the father, that was Country J and for the mother, Country B.
The parties married in late 2015 and lived in City H, Country J. That arrangement was never intended to be permanent as the parties were proposing to move to either Country F or Australia.
Australia was chosen but by the time visas were obtained in 2016 the mother was pregnant. In early 2016 the parties travelled to City G, Country B so that the mother could have family support after the birth.
The father returned to Country J and travelled to Australia in August 2016.
The child was born in 2016 in City G, Country B.
The father travelled to City G briefly in December 2016 to meet the child.
The mother obtained a visa for permanent residency in Australia in March 2017 but, by that time, she had informed the father that she did not wish to continue in the relationship or move to Australia.
The father visited the child in City G for three weeks in May 2017. The parties did not live together whilst he was there.
In December 2017, the mother and child travelled to Australia to attempt to restore the marriage and for the child to spend time with the father.
The trip did not go well. Contrary to the father’s assurance that there were two bedrooms at his home so that the mother could stay there but separately from the father, it was, in fact, a studio apartment. The mother had nowhere else to stay. It was arranged that she and the child would sleep in the bed and the father on a couch separated by a curtain.
The primary judge found that the father sexually assaulted the mother on 22 December 2017. There were other difficulties which we do not need to detail.
The mother and child returned to Country B in July 2018.
The father travelled to City G briefly in September 2018 and spent time with the child.
The father returned to City G with his parents in May 2019 for about 10 days. The primary judge found that during this time and following it, the father harassed the mother with unwanted emails and messages which, in turn, implored her to resume the relationship or insulted her for her shortcomings (at [65]).
The mother brought the child to Australia again in October 2019. His Honour found that the agreed purpose was for them to stay a few months so that the child could spend time with the father. The father purchased return airfares for the mother and child, with the return flight being 31 May 2020.
The primary judge found that the father assaulted the mother in January 2020. In early February 2020, the mother decided to leave Australia. The father agreed and changed the return date on the tickets to March 2020. After he had done so, the father commenced these proceedings.
The mother was served on 14 February 2020. She attempted to fly to Country B the same day but was prevented from taking the child with her by the Australian Federal Police.
The mother and the child have remained here ever since, whilst the proceedings have made their way through the court system.
The primary judge found that a number of disadvantages would arise if the child was to live in Country B with the mother, as opposed to living primarily with her in Australia. The primary disadvantage was that the child would not be able to spend regular face-to-face time with the father. However, his Honour also found that the chances of a meaningful relationship between the child and the father being maintained were “high” because the mother “genuinely accepts” the need for such a relationship and her conduct “bespeaks her commitment to [the child’s] relationship with [the father]” (at [157]).
The primary judge summarised the advantages of a return to Country B as follows:
158.[The mother’s] primary proposal also carries significant advantages for [the child]. [The mother] will be alleviated of the stress that she now experiences living in Australia. Her feelings of sadness and loneliness are likely to be ameliorated. She will have the support of her family. She will live in her own accommodation and she will have her own employment. Those matters in turn will put her in a position to provide [the child] with the best parenting that she can. It will also mean that [the child] is not exposed to the risks identified by Ms C from her mother’s experiences here in Australia.
This led to the following conclusion:
159.Having regard to the matters I have set out above in my view, [the mother’s] primary proposal is the most advantageous for [the child]. Whilst it is not without its disadvantages and there will be challenges for the parties and for [the child], I am entirely satisfied that [the child’s] relationship with [the father] will be fostered, encouraged and facilitated by [the mother] notwithstanding there will be a significant geographical distance between the parties. For the reasons I have expressed above, I consider that the language barrier that might be seen to exist between [the child] and her father will be addressed by [the mother]. At the same time, the stress and anxiety presently experienced by [the mother] which, as I have found above, necessarily affects her capacity to parent [the child] and which may be impacting directly upon [the child], will be alleviated. Her primary relationship with [the mother] will remain intact. That will be a much more advantageous position for [the child] then [sic] remaining in Australia in the primary care of her mother but with her parenting capacity compromised.
Application to adduce further evidence
The Notice of Appeal contains 34 grounds. On 18 August 2022, the father filed an Application in an Appeal seeking leave to amend the Notice of Appeal by replacing those grounds with seven grounds. The father’s Summary of Argument, which had already been filed, addressed those grounds. There was no opposition to the amendment which was permitted.
The above application also sought leave to adduce further evidence. That evidence is in two categories.
The first, consists of material that predates the hearing. In the absence of any evidence to the contrary, we assume that this evidence was available to be used at the hearing, but was not. The father was unable to explain why the evidence was not relied on. In such circumstances, it is difficult to receive that evidence on appeal (CDJ v VAJ (1998) 197 CLR 172 at [114]–[116]).
The second category consists of material relating to a stay application made in respect of the orders under appeal, including the application, affidavits (including that of the process server) and the transcript of the proceedings.
The relevance of that material was said to be that the mother’s attitude to the father had changed so that she no longer supported the child spending time with him. Such evidence could not identify error by the primary judge but could be relevant on any re-exercise of the discretion in the event the appeal was allowed.
At the hearing we indicated that we would receive the evidence set out in paragraphs 15(f) to 15(m) on any re-exercise of discretion, but not otherwise. The above are our reasons for doing so.
As the appeal will be dismissed, there is no need for the further evidence and the application will be dismissed.
The Appeal
It is to be recalled that this is an appeal from a discretionary decision so that the well-known statement of principle set out in House v The King (1936) 55 CLR 499 at 504–505 applies:
…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…
Did the primary judge err by making an order for sole parental responsibility? (Ground 1)
The father submitted that the order was erroneously made because:
·The finding of sexual assault should not have been made;
·A finding that the father kicked the mother should not have been made;
·The order for sole parental responsibility raises a risk of renunciation of citizenship and makes it difficult for the father to contest legal proceedings;
·The child has a constitutional right to have the involvement of both parties in her life;
·The mother’s conduct after the making of the orders indicates that a different order should have been made; and
·The primary judge gave inadequate reasons.
The submissions under this ground were expansive and we have endeavoured to deal with them as best we can.
As to the first point, it is true that the finding of family violence, namely the sexual assault and the kicking, had the effect that the presumption in favour of equal shared parental responsibility was rebutted (s 61DA of the Family Law Act 1975 (Cth) (“the Act”)). In such circumstances, the court is free to make such order as to parental responsibility as it considers to be in the best interests of the child. That is also the case if the court considers that equal shared parental responsibility does not meet those interests.
In fact, the order for sole parental responsibility was not based on the family violence, but on other considerations. His Honour said:
103.I do not consider that it is likely that these parties will be able to communicate constructively about [the child’s] parenting arrangements in the future. The evidence shows that [the father] sends voluminous correspondence via email to [the mother]. [The mother] sees some of these emails, quite legitimately in my view, as critical of her parenting of [the child] or of her personally. The tone of [the father’s] correspondence with [the mother] in the past is not conducive to cooperative parenting and, at times, has been insulting.
…
151.The presumption of equal shared parental responsibility does not apply in this case because I am satisfied that there has been family violence between the parties. Subsection 61DA(2) is clearly engaged. The parties’ co-parenting relationship and their communication skills are such that it would not be in [the child’s] best interests for there to be an order which required her parents to make decisions about major long-term issues for her jointly. Ms C’s assessment of [the father’s] attitude towards [the mother’s] place in decision-making for [the child] satisfies me that an order for equal shared parental responsibility is likely to be fraught. I consider that it is best for the parent with whom [the child] will spend most of her time to have responsibility for decisions concerning the major long-term issues for her to the exclusion of the other parent.
It is, therefore not necessary to consider whether the findings of family violence were correctly made because the outcome would not affect the above determination. We would add, however, that that challenge faces the difficulties outlined in Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 and Lee v Lee (2019) 266 CLR 129. We also wish to make clear that the lack of independent supporting evidence or corroboration, as the father called it, does not preclude a finding of family violence.
The father’s primary submission was that the allegations of assault were fundamentally inconsistent with subsequent text messages and emails from the mother. He also submitted that the primary judge should not have relied upon a WhatsApp message.
The father was unable to take us to the asserted text messages and emails. No such text messages or emails were relied upon by counsel for the father at the trial. Indeed, no submissions were made as to the sexual assault at all, as opposed to the allegations of rape. It is impossible, therefore, to identify any error on the part of the primary judge on that basis.
The primary judge referred to the WhatsApp message as follows:
47.Annexed to [the mother’s] affidavit is a text message conversation dated 22 December, 2017 [the father] had with a friend in which she recounts the event. The conversation has been translated from Country B language into English by a person whose name is said to be “Ms D”. The conversation in its original Country B language is not produced, there is no affidavit by the person who translated the conversation, nor was he or she produced for cross-examination. So, I have a translator’s opinion that the annexures to the affidavit are an accurate translation from Country B language into English of the texts the translator was given to translate. However, I have neither the source documents that person used, nor sworn evidence from the translator.
…
50.If the translation is accepted as an accurate record of what [the mother] said to her friend on 22 December, 2017 I am inclined to accept [the mother’s] account. Her description of the event in the messages is consistent with what she has sworn before me and nothing before me suggests there was any reason for her to lie about such things to the recipient of the messages at that time. Notably, neither party suggests litigation was contemplated until another two years after the exchange. There is no reason to believe [the mother] fabricated the messages to assist her case.
51.No issue having been taken with the messages’ provenances, I accept them. The WhatsApp messages are evidence of recent complaint. They provide corroboration of [the mother’s] evidence before me. I find that the sexual assault on 22 December, 2017 happened as [the mother] describes.
No challenge was made to the first sentence of [50] and we are unable to find that any relevant objection on that ground was made. Again it is impossible to identify any error on the primary judge’s part.
Contrary to the father’s submission, his Honour was fully aware of the implications of s 140 of the Evidence Act 1995 (Cth) as is evidenced by [48] and [49] and the reluctance to accept the allegations of rape.
The question of renunciation of citizenship was not raised before the primary judge. It is difficult now for the father to assert that the primary judge erred by failing to take it into account (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [120]). In any event we do not see why this consideration would necessarily outweigh those taken into account by the primary judge.
We can clearly understand why the primary judge made the order for sole parental responsibility (see [151]–[159]). Accordingly, the reasons are adequate (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
The father submitted that the primary judge’s reasons as to the finding of the sexual assault were inadequate, but those submissions focused on the erroneous nature of the finding, as discussed above, as opposed to their adequacy. The reasons explain why the primary judge preferred the evidence of the mother on this issue.
Contrary to the oft made submission by the father that the child has a right to have both parents involved in her life and, whilst that is certainly an aim of the Act (see s 60B of the Act), neither that Act nor the Constitution of the Commonwealth of Australia provides such a right. The child’s right is to have parenting orders that are in her best interests (s 60CA and s 60CC of the Act).
In his oral submissions, the father spent some time challenging the primary judge’s finding at [103] and [151], which was that the parties’ communication skills are such that an order for equal shared parental responsibility was not in the child’s interests. He submitted that there was a lot of evidence that could have been called which would have established that there was pleasant and effective communication. As that evidence was not called, it can now not be relied upon (noting that such evidence was not the subject of the father’s application to adduce further evidence).
The father referred to evidence as to real estate searches which were contained in some brief and anodyne messages to the mother, but they hardly constitute compelling evidence (Father’s affidavit filed on 1 February 2022, Annexure “MRT-02”).
The only other evidence relied upon by the father were some emails, all sent by him, in late 2021 and early 2022 concerning the child’s school (Mother’s affidavit filed on 8 February 2022, Annexures “MST-13” and “MST-14”). In an email of 1 November 2021, sent at 4.47 pm, the father asked for a “well thought response” by 5.00 pm. That is hardly a feature of cooperative parenting. Indeed, in an email of 13 January 2022 the mother’s lawyer complained that the father’s emails “may be an attempt by him to exert control over and to intimidate” the mother (Mother’s affidavit filed on 8 February 2022, Annexure “MST-14”). Again the evidence is not compelling.
Finally, we would add that when the father was asked in cross-examination whether he had sent nasty text messages or WhatsApp messages to the mother his answer was “[c]ould be, yes” (Transcript 3 May 2022, p.7 lines 14–15).
The primary judge’s findings as to the difficulties arising from the selection of the child’s school amply justify the conclusion that the parties cannot communicate to make decisions in the best interests of the child (see [24]–[29]).
This ground has not been established.
Did the primary judge err by removing the child from the Family Law Watchlist? (Ground 2)
We have difficulty in understanding this as a stand-alone ground. The order is entirely consistent with the order for parental responsibility and with the order that the child live with the mother in Country B. There would be no point in making those orders if the presence of the child’s name on the Family Law Watchlist prevented her from leaving Australia. It would be otherwise if the orders required the child to live in Australia.
This ground does not succeed.
Did the primary judge err in “permitting” the child to live in Country B “in circumstances where any order of this court would be unenforceable”? (Ground 3)
The father submitted that:
24.The Judge has acted on a wrong principle in not taking into account the jurisdiction aspects in permitting the relocation of child to [Country B]. The common jurisdiction of the child, father and mother is Australia. The child is an Australian citizen and a [Country B] citizen. The mother is a permanent resident of Australia who has lived in Australia for a total of 3 years and 5 months of the 2 visits. The Father is an Australian Citizenship and does not have any other country’s citizenship. The Father does not have any valid visa to travel to [Country B] nor any ties with [Country B] and the financial implications for travels indicated. AB p143 pa 82-88.
(Father’s Summary of Argument filed on 15 August 2022, paragraph 24) (As per the original) (Emphasis removed)
We do not accept the premise of this submission. Clearly, until the father commenced proceedings, thus triggering the Family Law Watchlist, the common intention of the parties was that the child’s habitual place of residence was Country B, not Australia. The clearest evidence of that is the purchase by the father of return airfares in 2019 and his re-booking of the return flight for March 2020. He submitted that the mother would not have come to Australia if he had not done so. That confirms the point.
Since that time, the appropriate place of residence for the child has been in dispute. The fact that Australian courts have jurisdiction to determine that dispute does not prevent the court from finding that it would be in the child’s best interest to live in another jurisdiction. See for example M v M (1988) 166 CLR 69 and the cases discussed by the majority in Killam & Leong at [103]–[107].
It is however, quite wrong to say that his Honour did not take into account aspects of the orders which may not be enforceable in Country B. He said:
160.One matter which is often addressed in cases such as this is the efficacy of any orders in the jurisdiction in which a parent who wishes to live outside of Australia intends to reside. That matter, however, was not addressed in this case. There is no evidence about whether it is possible to either make orders which are enforceable in Country B or whether there is a process whereby orders mirroring those made here might be made in Country B and thereafter be enforceable. In the absence of such evidence, it occurs to me that there is not much point in making any order other than that [the child] live with [the mother] and that she be permitted to remove her from the Commonwealth of Australia. However, out of deference to the endeavours of the parties to formulate orders that might be made depending upon the findings made by the court, I have adopted the orders suggested by [the mother] as her primary proposal.
161.[The father] proposes orders that would impose an obligation on [the mother] to make enquiries and if possible affect the making of Nero orders in Country B so as to assist the enforceability of any orders made in this court. I do not intend to make that order because such an order will not be enforceable in Country B in any event and there is simply no evidence before me to suggest that marauders [sic] could be made.
That was a consideration that was weighed against others in determining what orders were in the best interests of the child.
It follows that no error has been identified.
Did the primary judge err by failing to make orders for equal shared parental responsibility and for the child to spend substantial and significant time with the father progressing to equal time? (Ground 4)
In short, this is a complaint that the father did not succeed in obtaining the orders he sought. It does not identify an error.
The father’s submissions pointed to an interim parenting order made on 7 May 2021 which, it was said, in effect provided for joint parenting. That may be so, but does not identify error on the part of the primary judge.
The father relied on the submission of the ICL that an increase of time between him and the child was warranted. However, that submission was made in the context of the child remaining in Australia. Obviously enough, that submission was not accepted. The rejection of submissions, even those made by an ICL, does not, of itself, identify error.
The father submitted that he could not have a sustainable relationship with the child merely by spending a block of one month with her a year. Clearly enough that is not the optimal arrangement but is the consequence of the child and the father living so far apart. As we have said, the primary judge was satisfied that the chances of the arrangement maintaining the relationship were high. Nonetheless, it was a matter taken into account by the primary judge.
Did the primary judge err “in considering the [mother] to be suffering from depression or otherwise having relevant mental health issues in the absence of any medical evidence to support such a finding”? (Ground 5)
The father relied on the findings in [149] which, for convenience, we shall repeat. His Honour said:
149.I am satisfied and I find, that [the father’s] behaviours towards [the mother] that I have recounted above have caused her to feel stressed or to suffer “panic attacks” as she describes them. She is constantly worried and anxious about [the father’s] conduct towards her and since separation, [the father] has engage[d] in behaviours towards [the mother] that are designed to harass her. I am satisfied and I find that [the mother] is “very, very sad and very, very lonely” (to use her words) and those feelings of sadness and loneliness are entirely understandable. Her sense that she is trapped in Australia by the actions of [the father] is entirely legitimate.
This is a finding that the father’s behaviour towards the mother caused her to feel stressed, constantly worried and anxious. None is a mental condition that would require medical evidence.
The reference to “panic attacks” is simply a reference to the mother’s description and not a diagnosis.
There is no finding that the mother was depressed.
The father relied on comments made by the primary judge when testing, fairly forcefully, the submissions made by counsel for the mother. They do not and could not bind his Honour to make particular findings in his reasons. However, the comments highlight that the primary judge was well aware of the issues and fully considered them before making his findings.
The father also submitted that the mother had originally proposed that there be an order that there should be equal shared parental responsibility. Whilst that might have been the case at the time her Response was filed on 5 May 2020, her attitude had changed, as was made plain in her Amended Case Outline filed on 4 May 2022. In any event, we are quite unable to see the relevance of this submission to Ground 5 or any other ground.
This ground fails.
Did the primary judge give adequate reasons? (Ground 6)
In his oral submissions the father dwelt at some length on the finding of sexual assault but, in reality, his complaints were not as to the adequacy of the reasons but rather that the findings were not correctly made. We have already dealt with them.
The father submitted that the primary judge’s reasons were inadequate because he did not accept that the mother had given contrary evidence about the “dance studio incident” and who had paid for her driver’s licence. In any event, we doubt that those findings were in anyway material to the outcome.
As to the first, the father submits that in her oral evidence, the mother said that she had never mentioned the temporary protection order to the dance studio the child attended, but also that the studio was aware of the order from the time the child was enrolled.
During the mother’s cross-examination, the following exchange took place. The “she” referred to below is the director of the dance studio.
[COUNSEL FOR THE FATHER]: And did you tell her at that stage that there was a domestic violence order in place?
[THE MOTHER]: She asked me why – why this is all happening. So I had to explain her why the situation is like that.
[COUNSEL FOR THE FATHER]: Right. And I take it before then, before this email, you hadn’t talked to her about the domestic violence?
[THE MOTHER]: No, I hadn’t.
(Transcript 3 May 2022, p.103 lines 1–10)
The mother then said that “[t]hey knew that I have the temporary protection order from the very beginning when I was enrolled” (Transcript 3 May 2022, p.104 lines 7–8).
Whether there is indeed a relevant inconsistency between “domestic violence” and the notification of a temporary protection order, it was never explored with the witness. Even if there is such an inconsistency we do not see it as such that would invalidate his Honour’s general finding that the mother’s evidence was “generally consistent” and was to be preferred to the father’s evidence (at [23]–[31]).
The second asserted inconsistency is that in her affidavit evidence, the mother said that she made no reference to the rape in the application for her temporary protection order because she was ashamed about it. It was submitted that this was inconsistent with the following evidence:
[COUNSEL FOR THE FATHER]: Right. You see, as I read your evidence, you said that you didn’t refer to it in your domestic violence application because you felt ashamed. Do you recall saying that in your trial affidavit?
[THE MOTHER]: Yes.
[COUNSEL FOR THE FATHER]: So is it the case that it wasn’t included in the application for domestic violence because of the person who was helping you simply omitting it, or is it the case that it was a conscious decision by you not to include the information because you were embarrassed or ashamed?
[THE MOTHER]: I did say that to the person over the phone whom I was talking – I'm not – I can’t say who was it. I can’t say now. I don't remember. But I did say about that and, as well, I was embarrassed about this situation and I told my lawyer, like – I had the different lawyer - - -
(Transcript 3 May 2022, p.95 lines 1–15)
We do not see any inconsistency.
Again, neither of those submissions raise inadequacy of reasons.
Any error as to the driver’s licence is entirely immaterial and, again, does not involve inadequacy of reasons.
The father submitted that the primary judge’s finding that the relationship ended in 2017 was contrary to messages sent in 2018 and 2019. That does not bespeak inadequacy of reasons and the messages relied upon by the father cannot be seen in isolation.
Finally, it was submitted that the primary judge gave inadequate reasons for accepting the mother’s evidence as to an explanation given to the immigration authorities. The relevant passage is:
62.In July, 2018 [the mother] and [the child] returned to Country B. The parties give different accounts of this event. On [the father’s] case, they agreed that [the mother] would only go for 5 weeks before returning to Australia. [The mother’s] evidence is that this agreement never existed, but the 5 week period was an explanation [the father] offered to Australia’s immigration authorities. He had contacted the immigration authorities because he needed to notify them that [the mother] was leaving Australia. [The mother] says that he told the immigration authorities that she was leaving for a period of 5 weeks because they “sounded concerned about me leaving Australia after only spending about 6 or 7 months here”. I accept [the mother’s] evidence about this because it is consistent with what in fact subsequently occurred. She did not return to Australia after 5 weeks.
His Honour explained why he made the finding, which of course, was to be coupled with the earlier general findings. The reasons are therefore adequate.
This ground does not succeed.
Were the orders “clearly not in the best interests of the child”? (Ground 7)
The father submitted that the outcome was plainly wrong and manifestly unjust. It is worth qualifying the balance of the submission in full as it appears in his Summary of Argument:
44. As the Appellant Father after careful observations in the past 5 and half years of [the child’s] life, and after the onset of the Legal Proceedings since Feb 2020 the Father seeks an order for [the child] to remain on the Airport Watchlist until [the child] turns 18 years of age, substantial and significant time and shared parental responsibility. Several issues of child’s best interest has been already placed before the court and I draw the attention to one small example as a reference from early case proceedings that aligns with this ground and it is relevant if [the mother] acted in best interest of the child or provided alternate reasons AB p73 4.(a)
“4. That the father communicate with the child each week
a. By telephone on Monday with the call to commence between 5.30pm and 6.00pm”
The above was a consent order. At that time [the child] was only 3 and half years old and did not speak much English and hence I had requested video calls on Mondays as well instead of audio calls, so I could see and speak to [the child] and communicate in English as the mother refused to send [the child] to kindergarten. This continued from 1 June 2020 till 10 Dec 2020, until the newer court orders came into effect after which there were 2 video calls per week. In spite of several requests through email the mother refused and gave no reasons. [The mother] a few weeks prior to the Interim hearing in May 2021 has unilaterally enrolled [the child] in a kindergarten. And hence further to ensure [the child] continues to attend kindergarten without any changes an order was made: AB p87 pa6
“That the mother ensure that the child continues to attend kindergarten on Mondays and Thursday of each week and that otherwise the Mother not change the days the child is to attend kindergarten without the written agreement of the Father.”
[The child] often asked me to drop her to kindergarten and drop her to prep school, which I was unable to be part of because the details were not disclosed by [the mother] stating the reason as her safety. Therefore I seek shared parental responsibility so the child has the benefit of both parents involved in her life to have a meaningful relationship.
(Father’s Summary of Argument filed on 15 August 2022, paragraph 44) (As per the original) (Emphasis removed)
That submission falls well short of persuading us that the outcome was unreasonable or plainly wrong.
As the Full Court of the Federal Court of Australia has identified in Bahonko v Sterjov (2008) 166 FCR 415, it is for the father to identify the errors in the judgment under appeal and to persuade the appeals court that they were made. The Full Court said:
3. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
In this matter we are unable to discern any apparent difficulties with his Honour’s reasons.
In his oral submissions, the father sought to persuade us that a different order could or should have been made. Even if that was so, it would not identify error.
This ground is not made out.
Conclusion and costs
It follows that the appeal will be dismissed.
The appeal was entirely unsuccessful. The father clearly has some means. He will pay the costs of the mother and the ICL, each fixed in the sum of $4,111.
At a hearing of an application for a stay, the child was again placed on the Family Law Watchlist. That order will be discharged.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Altobelli.
Associate:Dated: 27 September 2022
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