Barbir & Erickson (No 2) - [2023] FedCFamC1A 235

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barbir & Erickson (No 2) [2023] FedCFamC1A 235

Appeal from: Erickson & Barbir (No 2) [2023] FedCFamC2F 921

Appeal number(s): NAA 270 of 2023

File number(s): NCC 2284 of 2021

Judgment of: TREE J

Date of judgment: 21 December 2023

Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders for indefinite supervision – Procedural fairness – Incompetency of counsel – Weight challenges – Where no error of a House v The King (1936) 55 CLR 499 kind is made out – Where the weight given to competing evidence is quintessentially a matter for a trial judge – Where the orders are not patently wrong or plainly unreasonable – That another judge may have made different orders does not demonstrate error – Appeal dismissed – Application in an Appeal dismissed – No order as to costs.

Legislation:
Family Law Act 1975 (Cth) s 60CC

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Cases cited:
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

De Winter v De Winter (1979) 23 ALR 211

House v The King (1936) 55 CLR 499; [1936] HCA 40

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Maddax & Danner [2016] FamCAFC 176

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155

Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Number of paragraphs: 105

Date of hearing: 12 December 2023

Place: Cairns via Microsoft Teams

The Appellant: Litigant in person

Counsel for the Respondent: Mr Willoughby

Solicitor for the Respondent: Tony Cox Lawyers

Counsel for the Independent Children's Lawyer: Ms Reid

Solicitor for the Independent Children's Lawyer: Hannaway Lawyers

ORDERS

NAA 270 of 2023
NCC 2284 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BARBIR

Appellant

AND:
MR ERICKSON

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

21 DECEMBER 2023

THE COURT ORDERS THAT:
1.The appellant's Application in an Appeal filed 23 November 2023 is dismissed.
2.The Notice of Appeal filed 25 September 2023 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 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 Barbir & Erickson (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION

On 31 August 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders relating to the parties’ now nine year old child X (“the child”). Pursuant to those orders, Mr Erickson (“the father”) has sole parental responsibility for the child, who lives with him, and only spends professionally supervised time with Ms Barbir (“the mother”) for one occasion of three hours per month, together with extra time during school holidays and on special occasions. Except on contact weeks, the child is also permitted to communicate for 30 minutes twice per week with the mother.
By Notice of Appeal filed 25 September 2023, the mother appeals from the supervised time orders. The father and the Independent Children’s Lawyer (“ICL”) oppose the appeal.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The mother and father are both 31 years of age. The father is a service worker and labourer; the mother a health care worker.
The parties commenced a relationship in 2012, to which the child was born in 2014. The parties separated in August 2015.
In October 2015, the mother commenced a relationship with Mr B. That relationship was violent, and was a major focus of the trial, as it was not clear that the relationship had concluded. The mother has had three children to Mr B, being C, currently six years old, and two boys, now a little over a year old.
The father re-partnered in August 2019 and lives with that partner and her 11 year old son F.
THE PRIMARY JUDGE’S REASONS
As I have indicated, a major focus of the trial was upon the risk which the mother’s household posed to the child. Central to that was an incident which occurred in early 2021, which the primary judge recounted as follows:
11.On 1 April 2021 the mother and [Mr B] went out to dinner with friends to [a hotel]. They argued on the drive home and the mother let [Mr B] out at the [Town D] exit off the […] Highway. She then drove home, put her daughter [C] to bed and went to bed herself. [The child] was staying with the father that weekend. [Mr B] arrived home and the relevant COPS entry then reads:
Sequence 1: The accused [Mr B] became aggressive towards the victim [the mother] and punched a large hole in the wooden wardrobe in the bedroom. The accused took hold of the victim’s phone and smashed it on the ground causing the outer case to break and split some of the plastic on the outer phone Sequence 2: The accused forced the victim to sit up and look at him before he punched the victim 3 or 4 times in the left side of her face. The accused used extreme force leading the victim to instantly believe that her jaw was broken and causing a large amount of discomfort and pain. The accused struck the victim several more times around her body causing pain to her right leg, her back and both shoulders. The victim tried to lay in the foetal position in order to cover up and protect her body the best that she could. The accused ripped at the victim’s clothing and scratched her on both shoulders. Sequence 3: The accused then approached the victim and grabbed her around her throat and pulled her up from where she was laying on the ground. The accused squeezed the throat of the victim causing her pain and preventing her from being able to breathe. The accused squeezed tightly around the victim’s throat and told her that he wanted her to die and that he was going to kill her. The victim immediately feared for her life and believed that she was going to die at this point. At this point the child entered the room and asked the accused to stop. The accused let go of the victim and took hold of her child.
12.The mother then ran with [C] to the granny flat behind her home where the maternal grandmother resided. [Mr B] followed them. The mother asked [Mr B] to call an ambulance and young [C] who was clearly distressed asked [Mr B] to leave. The maternal grandmother who is described in police records as the NOK challenged [Mr B] and asked him what he had done to the mother. The entry then reads:
The accused grabbed hold of the NOK and threw her across the granny flat causing her to land on the ground with considerable force. The NOK grabbed hold of her side and felt immediate pain after having a recent procedure that required stitches the NOK has worried that the force had caused further damage.
13.[Mr B] then left. The mother was taken to [E] Hospital where she was treated for her injuries. She was interviewed by police and provided a Domestic Violence Evidence in Chief (DVEC) statement.
14.[Mr B] was charged with [a number of offences]. Police obtained a provisional apprehended violence order for the protection of the mother, the maternal grandmother and the child [C] against [Mr B] in terms of conditions 1, 2 and 9. His bail conditions were in identical terms to the provisional apprehended violence order.
15.[A few weeks later] the provisional apprehended violence order was made on an interim basis and [Mr B] was served with a copy of the order.
16.[In mid-2021] the maternal grandmother told police that the mother and [Mr B] had been in constant contact since [the] incident, going out to dinner and attending [an event]. She reported that the mother stayed at [Mr B]’s home every Friday night because she played [sport] in [City G] on Saturdays.
It is plain that indeed, notwithstanding that extremely violent episode, the mother and Mr B have thereafter maintained some kind of relationship. The mother did herself no favours at the trial by giving inconsistent versions of events, which caused the primary judge to largely not accept her evidence. More, Mr B was not called to give evidence in the mother’s case.
At [128]–[130] the primary judge said:
128.The mother has exposed her children to violence through her relationship with [Mr B] and has attempted to minimise those experiences. In the opinion of the Court Child Expert:
A related concern is the mother’s seeming attempts to minimise the incident of family violence and [C]’s exposure to this, including her having attempted to vary the ADVO and retract her statement only two or so months after the incident, her apparent persistence in varying the ADVO to ultimately allow [C] and herself to recommence contact with [Mr B] as soon as he was released from prison, and her reported belief that she believed this to be in [C]’s best interests. Moreover, if the mother’s reporting regarding having not had any contact with [Mr B] from after [early 2021] through to his release from prison in [late] 2021 is accurate, the mother’s wish to vary the ADVO and recommence contact with [Mr B] despite having no knowledge of what [Mr B] had done to address his issues (apart from what [Mr B]’s family were apparently telling her) would appear to have been based on optimism and her own desire to “want [Mr B] back” rather than necessarily being child-focused and cautious in what kind of relationship she herself would have with [Mr B] into the future to facilitate [C]’s relationship with him which she purports to have been her initial, primary concern.
129.The mother has attempted to conceal the true extent of that violence and diminish its’ importance. If not for members of the maternal family who were concerned for the safety and wellbeing of these children it is unlikely that the events of [early] 2021 would ever have come to the attention of the father. I am also satisfied that the mother has continued to surreptitiously encourage a relationship between [the child] and [Mr B]. For example, [114] of the family report states:
[The child] was asked about her recollection and experience of previously living with the mother and [Mr B], with [the child] saying she remembers “a fair bit of it.” She volunteered having been “pranked” by the mother and [Mr B] who said they had broken up, but that she saw [Mr B]’s car out the window the next day at their previous “[H Street]” address in [Town D]. Asked if the mother and [Mr B] always got along, [the child] indicated that they did not always and spoke of having heard and seen arguments between them. [The child] indicated that arguments between the mother and [Mr B] were worse than two arguments she has seen between the father and [Ms J], explaining this to be due to “just the way their tone and everything.” [The child] spoke of seeing a hole in the cupboard which she thinks [Mr B] “accidentally punched,” which she thinks her mother explained to her to have happened when [the child] saw it.
130.The true extent of the mother’s relationship with [Mr B] only emerged in the course of these proceedings. The mother said that she and [Mr B] have not lived together since [early] 2021 but collateral evidence suggests that they have maintained a relationship or some form of ongoing involvement, post separation. While the mother says it focused around the joint care of their three children, the Court is satisfied that it goes well beyond this and that once these proceedings are concluded and the mother is no longer under scrutiny, the relationship will likely be rekindled.
(Footnotes omitted) (Emphasis added)
Later at [164]–[169] her Honour continued:
164.Counsel for the ICL was very generous when he said that there was ‘mounting incredibility’ around the mother’s vigorous denials that she and [Mr B] are in a relationship. The evidence in my view is overwhelming and it is troubling for this Court that the mother continues to maintain otherwise. She has attempted to support a relationship between [the child] and [Mr B], despite her history of family violence with him, despite the existence of an ADVO for her protection and that of her children, despite a restraint being imposed by this Court on her bringing [the child] into contact with [Mr B] and despite the Court, the other parties and experts expressing serious reservations about the maintenance of that relationship.
165.The point of the restraint was to protect [the child] from being exposed to [Mr B] given his unpredictable and violent behaviour. If the mother had understood this, acted protectively and complied with the order, the Court might have been able to have some confidence that she would protect [the child] and not expose her to further conflict and family violence.
166.The mother chose to be dishonest with the Court. She has involved [the child] in her deception and sought to make her an ally against her father. As recently as [mid] 2023 [the child] reported to her school counsellor:
[The child] stated that she is worried about what will happen after court. She stated that she believes that her father will not allow her to live with her mother as he is worried that her mother’s partner [Mr B] will hurt [the child]. [The child] stated that her mother was currently in a relationship with [Mr B] but that she was told not to tell her father this due to his concern. [The child] stated that her father has suspicions that her mother and [Mr B] are in a relationship and that she heard him say that he was going to try to take video of them together to prove this. [the child] stated that she was worried that this may prevent her from living with her mother.
167. On 30 May 2023 [the child] told the ICL:
My mum told me that she spoke to her lawyer and my mum and her lawyer actually said that it might be looking good for her, that I might go back and live with my mum because of some things she said. That I’m scared of my dad, especially when he gets angry… that…. um…. you know, that he smacks me and stuff like that and he like you know sometimes frightened me when he is very angry … umm he yells at me which is one other scary thing and he like…. like if I don’t do something when he says he’ll ask my again and if I still don’t do it because I might not hear him or I don’t want to do it… Oh, one thing is that a while ago when I used to keep lying, but now I’m, trying to get my act together, my parents don’t trust me anymore because I lied.’
168.It is not the point that [the child] likes [Mr B] or that she misses him. The mother’s need to maintain her relationship with him has blinded her to the impact of her behaviour on [the child], and her conduct over the past 2½ years and throughout the trial does not demonstrate any capacity for change. If I am wrong about the mother’s motivations then at best she has shown a significant lack of insight and naivety about the risks that she has exposed [the child] to in continuing [the child]’s contact with [Mr B]. Either way, she has demonstrated poor parental decision-making and capacity to parent. I am satisfied her conduct is not that of a mother who understands the high-risk situation in which she is placing herself and her children. She shows no insight about domestic violence and the need to protect children from it. This is a significant shortcoming in the mother’s attitude toward parenting and capacity to parent and I place significant weight on this issue.
169.At the conclusion of the trial, the mother agreed to a restraint that she not bring [the child] into contact with [Mr B] but sought an exemption for special occasions such as birthdays. Counsel did not explain why violent behaviour was less likely to occur on special occasions than at other times but given the mother’s conduct in either ignoring or not appreciating the risks relating to [Mr B], I have significant concerns that she would comply with the restraints in any form once these proceedings are concluded.
(Footnotes omitted) (Emphasis added)
The primary judge returned again to the issue at [243]–[247] as follows:
243.While the mother says she is not currently in a relationship, there is a strong possibility that she is or that she may rekindle her relationship with [Mr B]. The mother has lost all credibility when it comes to the status of her relationship with [Mr B] and the Court has no confidence in the mother’s latest avowals that it is over. The father is the parent who has the greater chance of providing stability and a risk-free environment for [the child]. I consider his partner [Ms J] to be a tremendous resource for the father and for [the child].
244.It is clear that [the child]’s relationship with her mother is important to her but the views she has expressed need to be examined in the context of significant maternal influence and [the child]’s own grief being away from the mother and her half-siblings. [the child] is too young to understand the longer term implications or the risk of harm issues in the mother’s household and little reliance can therefore be placed on her expressed wishes.
245.The Court Child Expert emphasised the importance of the parents promoting and supporting [the child]’s living arrangements and provide consistent messaging over time, whatever the outcome of these proceedings. This he said would go some way to relieving [the child] from the sense of responsibility she feels she has to determine her own living arrangements.
246.At this stage I find that there is no realistic possibility of the mother gaining insight into the psychological harm that has been occasioned to [the child] as a result of the parental conflict and her exposure to [Mr B]. If I had witnessed some genuine insight and changed behaviour during these proceedings on the part of the mother then I would have been prepared to consider gradually transitioning to unsupervised time. Unfortunately, I did not and concerns about the mother’s insight into her decision-making and in fostering [the child]’s relationship with the father remain.
247.I find that ongoing professional supervision of [the child]’s time with the mother to be the only safe way to support the relationships with her, her half-siblings and the maternal family in the short to medium term and to ensure stability in their placement with the father.
(Emphasis added)
At to the longevity of supervision, the primary judge said:
249.I am mindful of the practical realities of supervision being in place until [the child] is 18 years of age. I accept that it is likely that as [the child] matures, the value she derives from visits with her mother at a supervised contact centre time will diminish. It is also unlikely that [the child] will tolerate professional supervision service as she approaches adolescence which is why the ICL proposes and I adopt the inclusion of an overriding clause that the mother’s time is subject to the parties’ agreement.
250.There is no perfect outcome for [the child] but I am satisfied that [the child] will continue to have a meaningful relationship with both parents if she lives with her father…
…
258.The paramount purpose of supervision is to ensure that a child whose time is spent with a parent under supervision is safe. In this instance supervision is required so that [the child] does not come into contact with [Mr B] and to help prevent the mother from influencing or undermining [the child]’s living arrangements with the father. It is difficult to know whether the supervision has been successful as none of the supervisors nominated by the mother have given evidence in her case. Certainly the supervision has been ineffective in curbing the mother’s efforts to undermine the father’s relationship with [the child] as she continues to raise an expectation for [the child] that she will return to her care. The maternal grandmother appears to have been more intent on evidence gathering than carrying out her role as a supervisor of the mother’s time consistent with her undertaking to this Court.
(Emphasis added)
THE MOTHER’S APPLICATION TO LEAD FURTHER EVIDENCE

By Application in an Appeal filed 23 November 2023, the mother sought to read no less than four further affidavits in the appeal.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives this Court an unfettered discretion to admit further evidence on appeal. The principles relevant to the discretion (albeit in relation to earlier legislation) were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
The only proposed further evidence which was not reasonably available to the mother at trial is her evidence of post judgment supervised time. However, other than the evidence as to its cost (which became an agreed fact), it is not relevant to showing any error, and would only be of any relevance in the event the appeal was allowed and the discretion re-exercised.
The additional material will not be admitted.
THE APPEAL
At the outset, it is 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 at 504–505 (“House v The King”) 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…
Ground 1
This ground provides:
1.Trial by ambush- on the second day of trial at the end of the day, counsel for the applicant father ambushed me whilst I was giving evidence. This new evidence was known to the father's counsel that morning and his counsel failed to bring this new evidence to the attention of my legal representatives before asking me questions regarding this new evidence. Judge gave inappropriate weight to the evidence of this witness even though the evidence was struck out of court. Please see paragraphs 161, 162 and 163 in your honours reasons for judgement filed 31/08/2023. This action caused me significant injustice through the proceedings.
(As per the original)
The relevant paragraphs of the primary judge’s reasons are:
161.[In late] 2022 the mother was seen by the maternal uncle [Mr K] with [Mr B], [C] and the [youngest children] at the […] Shopping Centre. In her affidavit filed 23 March 2023 the mother said it was a chance meeting but when first raised with her on 2 February 2023 in cross-examination by counsel for the father, the mother denied ever meeting up with [Mr B]. The exchange was as follows:
[Counsel for the father]: When was the last time you socially caught up with [Mr B]?
Mother:When we were together back in – well, socially – I haven’t done anything socially since having my babies […]. If you want a answer, last time that I seen him on a social basis would be when he came over for the visit with the children [in] November.
[Counsel for the father]: Do you ever catch up with him socially outside your house?
Mother:No.
[Counsel for the father]: Um – okay. In [late] 2022, did you ever go to [the shopping centre] in [City L] and have lunch with [Mr B]?
Mother:No.
[Counsel for the father]: Are you sure about that?
Mother:I’m sure.
[Counsel for the father]: I suggest that you did?
Mother:Fine.
162.At the time of cross-examination the mother had not seen the maternal uncle’s affidavit or the reference to the date [in late] 2022. The maternal uncle’s affidavit was filed on 3 February 2023. When the mother prepared her affidavit in reply on 23 March 2023 she had the benefit of the affidavit but not the transcript of proceedings and responded in this way:
27.On 2 February 2023. The 2^nd day of trial in these proceedings, Counsel for the Applicant Father asked me (as I recall) “….were you having lunch with [Mr B] [in late] 2022?...”
38.My answer to that question was basically “No”.
163.Counsel for the father mentioned no specific date and in light of her subsequent affidavit evidence about meeting up with [Mr B] [in late] 2022, the mother’s definitive ‘no’ was clearly untrue.
(Emphasis added)
The maternal uncle was not ultimately called to give evidence by the father, and hence other than forming part of the chronology of the trial, his affidavit was not in evidence. However plainly it was the mother’s own evidence which was relied upon by the primary judge, with her having denied being with Mr B in her cross-examination on 2 February 2023, but admitting it in her affidavit of 23 March 2023.
There was no procedural unfairness involved in the course of the trial in this respect.
Ground 1 fails.
Ground 2
This ground provides:
2.Due to severe misrepresentation by my legal team, your honour did not have enough evidence to make appropriate orders or to make a correct determination regarding any potential risks. I had Affidavits available for trial from [Mr B], [Ms M], [Ms N] and my two supervisors [Ms O] and [Ms P] which I am confident would have eliminated all risks that your honour has associated with me. These affidavits were made readily available to my legal representatives with one affidavit in support of me, being sent personally to my lawyer by [Ms N] before trial. I was told by my lawyer "they were not needed". Your honour makes reference to needing this information at paragraph's 94, 95, 96, 101, 102, 103, 198 and 216 in her reason for judgement filed 31/08/2023. If the court accepts, I will make an application in an appeal and have this evidence made readily available to the court.
(As per the original)
This ground contends incompetence by iterations of the mother’s legal representation, in their failing to call a number of witnesses, including Mr B. The primary judge referenced this failure at [94]–[104] as follows:
94.On 16 August 2022 [Mr B] filed an affidavit in the mother’s case in the lead up to the family report interviews. He was also interviewed via AVL by the Court Child Expert. However, at the final hearing his affidavit was not read or relied on by the mother. There was no suggestion that [Mr B] was not available, indeed the evidence of the mother was that she continues to facilitate regular time between [C], [the youngest children] and their father.
95.Similarly, no evidence was adduced from the maternal grandmother [Ms O]. During the adjournment period interim orders were in place which required the mother’s time to be supervised and the maternal grandmother [Ms O] was added to the panel of supervisors who would undertake this task. Since 6 February 2023 the mother’s time with [the child] has occurred on a weekly basis at the home of the maternal great grandmother and the maternal grandmother where they provided the supervision.
96.The absence of evidence gives rise to a consideration of the principles enunciated in Jones v Dunkel, which provide that the unexplained failure by a party to adduce evidence, either through the calling of witness or the tender of a document, can lead to an inference that such oral or documentary evidence would not have assisted that party’s case.
97.The rule will have no application if the failure to call a certain witness is satisfactorily explained or readily understood but not if ‘the tribunal thinks’ that the explanation given is unsatisfactory. An explanation for the absence of a witness may be that a potential witness is unable to give evidence because of illness, death, absence overseas, or privilege.
98.However, these are parenting proceedings and in Murdock & Madden the Full Court said at [68] - [71]:
[68]… it is, we think, necessary to point out that, even in circumstances where the pre-conditions to the application of the rule [in Jones v Dunkel] are made out, a court is not compelled to draw an adverse inference. Nor can it be presumed “that the uncalled evidence would have been damaging” (LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) [1215], citing HML v R (2008) 235 CLR 334; Brandi v Mingot (1976) 12 ALR 551 at 559-560).
[69]But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
[70]The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case.… The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
[71]As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful...
[Emphasis added]
99. In Alam & Sayid, Harper J said at [184]
Nonetheless, some inferential reasoning in parenting cases, as in all litigation, cannot be avoided and must continue to play an important role. Murdock & Madden makes clear the rule in Jones v Dunkel continues to have potential application. The boundaries set by any circumspection in determining what evidence to call, referred to in Murdock & Madden, could not be fixed and will be informed by the circumstances of each case. It seems from what was said in Murdock & Madden at [70] that the point at which the Court should exercise some circumspection lay in the process of forming a view whether there is "the forensic need to answer, explain or contradict that founds its potential application". In this process, distinction between evidence which would be desirable and evidence which creates a forensic need to answer or explain must be born in mind.
100.In this case the mother agreed that she knew where [Mr B] and the maternal grandmother lived and was able to contact them.
101.On 3 February 2023 the mother was represented by [Mr Q] of counsel who told the Court that the failure to call [Mr B]:
…was the subject of legal advice, and a decision was made through legal advice. Your Honour will see that the case outline was amended.
and
The decision was made to run the case in a particular way, and part of it was – obviously, there has been huge concessions in relation to the way this matter was run, and without going into any details, that determined what witnesses would be called…
102.When the hearing resumed on 1 June 2023, the mother’s position had changed again. She now sought orders for [the child] to live with her. Her counsel [Mr R] said the failure to call [Mr B] and/or the maternal grandmother was simply an ‘oversight’. In my view neither was a satisfactory explanation.
103.These absent witnesses are persons relevant by reason of the mother’s assertion that:
(1)Her relationship with [Mr B] ended in [late] 2022, that they had not lived together since [early] 2021 and that [the child] had had no contact with [Mr B] since [early] 2021; and
(2)[the child]’s report to the ICL that the maternal grandmother had not always been present to supervise her time with the mother, was incorrect.
104.I am satisfied that an inference clearly arises that the evidence of the absent “witnesses” would not have assisted the mother’s case.
(Footnotes omitted) (Emphasis in original)
An assertion as to the incompetence of counsel is not, of itself, an independent ground of appeal. An appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial or it produced a miscarriage of justice (TKWJ v The Queen (2002) 212 CLR 124).
The principles relevant to the question of when an appellate court will allow an appeal on the basis of incompetence of a legal practitioner are set out in OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 (“OP”) at 298 as follows:
123.We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
The Full Court in Maddax & Danner [2016] FamCAFC 176 confirmed that in a parenting case the effect of OP is that an appellant would need to establish that:
·counsel was incompetent or the forensic decisions were wrong;
·those decisions affected the judgment; and
·but for those matters, a different result would have been reached.
Even if it be assumed that the lawyer’s failure to call Mr B and the other witnesses was an incompetent decision by them – which is by no means clear, and I am not so persuaded – it does not follow that calling them affected the judgment, or would have, or even may have, led to a different result. Particularly it is plain that the mother was continuing a relationship with Mr B, and was downplaying his violence. Mr B could not have denied his violence, and could scarcely have denied a continuing relationship of some kind with the mother.
Ground 2 fails.
Ground 3
This ground provides:
3.Your honour placed inappropriate weight on the child's recollection of events and the child's heavily inconsistent and fabricated "Disclosures" to the school and to the independent children's lawyer. My affidavit from [Ms M] would eliminate some of this including paragraph 140-141, however one example of the inconsistencies from the child in which your honour has used as primary considerations for judgement in paragraph 142. [The child] reported to a teacher in [late] 2021"that [Mr B] was out of jail, but he is not allowed to live with them but does come over for sleepovers". This information is incorrect as [Mr B] was not released from prison until [a month later]. I have further inconsistencies from the child that weight has been placed upon by your honour which I can provide to the court. To make a judgment on non-factual disclosures from a child is simply unjustified and unreasonable.
(As per the original)
This ground focusses upon the primary judge accepting evidence of what the child had told others as follows:
136.[In late] 2021, the day [Mr B] was released from gaol, attendance records from [AA School] show that [the child] was absent from school. She was also absent on [two other dates]. The records also indicate that the school was operating a flexible timetable during a period of COVID-19 Lockdown. [The child] did not have COVID-19 on those days and the evidence of the mother was that it was purely coincidental that [Mr B] was also released on that day.
137.On [one] evening […] the mother organised a Facetime video call between [Mr B] and [C]. Her evidence was that [the child] was in the shower at the time and did not see or participate in the call. The following day […] the mother facilitated a face to face visit between [Mr B] and [C] at [Mr B]’s mother’s house in [City L]. The mother’s evidence was that she accompanied [C] to that visit but dropped [the child] to the home of [Ms M] so that she did not come into contact with [Mr B].
138.This evidence was inconsistent with the CIC memorandum dated 21 October 2021, where she was reported to say:
……..that [C] has only had phone communication with [Mr B] since his recent release from prison […], and that [C] has not seen [Mr B] since his incarceration.
139.When interviewed by the Court Child Expert [Mr B] also denied having seen [the child] since his incarceration other than for the family photo in [late] 2021. He questioned ‘where such an allegation has come from and would like to see any proof of this, insisting that this has “never” happened.’
140.The mother’s evidence is also inconsistent with [the child]’s disclosure to the Court Child Expert at the time of the family report interviews in August 2022. At [113] the Court Child Expert recorded:
[The child] reports having last seen [Mr B] at family photos at the beach. She indicated, clearly in this writer’s opinion, that she had visited [Mr B] at [Mr B]’s sister [Ms M]’s house on occasions prior to these family photos and expressed believing that [Mr B] may have gone to gaol after these family photos were taken. This writer would be able to provide further details of [the child]’s reporting of this at a later date as required.
141.In his oral evidence and with reference to his contemporaneous notes, the Court Child Expert explained:
When asked when the last time she saw [Mr B] the response from [the child] was family photos at the beach. I asked when and where that might have been and she suggested it was [Ms M], [Mr B]’s sister and someone else getting married and then I asked the last time she had seen [Mr B] before family photos and she mentioned when she went to [Ms M] to see how [Ms M] was going and to see [Mr B] and [Mr B] was living with [Ms M]. Not too long after I asked how many times she had seen [Mr B] before those family photos and she said not too many times because she knew she wasn’t supposed to but estimated 4 or 5 times all at [Ms M]’s and I asked where does [Ms M] live and she said [City L].
142.The mother’s evidence is also inconsistent with records produced by DCJ which include the following notification [in late] 2021 from [AA School], the school then attended by [the child]:
On the first day of school the class were asked to draw a picture about what they had been doing and [the child] (6) drew a picture of her family at the beach. She then crossed out [Mr B] (partner of [Ms Barbir], mother) and explained that [Mr B] had held her mother down by the neck and there was a big argument. In [early 2021] it was noted there was a change in [the child]’s behaviour, she became controlling. [The child] then mentioned that [Mr B] had gone to jail which was concerning because [Ms Barbir] had not mentioned it. [The child] then visited her father and she must have told him what was going on because he then withheld [the child] and [Ms Barbir] had to get a recovery order. [Ms Barbir] then reported that [Mr B] did go to jail but this was for [an unrelated incident]. In [mid-2021] the family moved and [the child] would say things like ‘I am not allowed to tell anyone where we live because the bad people will find us’. Her parents are also going through court to fight for custody. [The child] reported in [late 2021] that [Mr B] was out of jail but he is not allowed to live with them but does come for sleepovers. She later said ‘mum told me not to say anything because if she does one more thing wrong she will go to jail’. [The child] spoke about not wanting to have any friends and said she liked not having people around, it makes her feel free. She asked her teacher last week if she was a reporter and then said there were bad things happening at home but she is not allowed to tell. Asked if [the child] was she safe and she said ‘sort of’. [The child] was asked if anyone was hurting her or her mother and she said ‘no, but we are just not safe’ gave [the child] a list of people she can talk to and [the child] said ‘no, you are all reporters’. [The child] said she was seeing her dad on the weekend but couldn’t tell him anything because he would tell the police and she would have to live with him. [The child] said she is naughty at school because she has to be so good at home, she wants to keep her mum and sister together. There was another time when [Ms Barbir] picked [the child] up from school and took her to her sister in laws house and they stayed overnight. The next day [the child] said she had a lunch order because they couldn’t go home last night. [the child] is described as being very well articulated and mature for her age, possibly as a result of her home environment.
[Emphasis added]
143.[In late] 2021, the day of [Mr B]’s release, a final apprehended violence order was made in terms of condition 1, 4 and 9 which prevented him from going within 500 metres of the mother’s residence.
144.The mother says that after [Mr B]’s release, she facilitated face to face, daytime visits and telephone calls between [Mr B] and [C] on weekends when [the child] was in the care of her father. After a few months, this arrangements progressed so that the mother was dropping [C] to the residence of the paternal grandmother and [Mr B] was spending unsupervised time with her.
145.On 21 October 2021 the parties and [the child] attended upon Court Child Expert [Mr T] for the preparation of a Child Inclusive Conference Memorandum. The mother denied:
………being in an ongoing relationship with [Mr B], denies having contacted [Mr B] while he was in prison, and denies any intention of recommencing a relationship with him. She only reports intending on agreeing to some sort of parenting plan with [Mr B] that will allow him to have a relationship and spend time with [C].
146.As previously noted on 22 November 2021 [Mr B]’s sister posted a photo on her social media account of her family which included the mother, [Mr B], [the child] and [C] and taken on or around 17 November 2022. In the photo the mother and [Mr B] are sitting next to each other and the mother has her hand on his knee. When I asked the mother what benefit she saw in [the child] attending the photo shoot she answered:
My thinking was that these are people that she was very close with that she had known for quite a few years, and I thought, you know, if she was to ever see that photo and see that she, you know, wasn’t included or anything like that, I just believed that she would have felt excluded. And it was terrible thinking at the time, I admit. But, yes, I – I think it was more of a – an emotional decision that I made rather than a – a proper decision.
(Footnotes omitted) (Emphasis in original)

The mother makes the point that the reference to “[late 2021]” in the school record quoted in [142] is at odds with Mr B’s release not having been until a month later, as the primary judge noted at [143].
Further, the mother says that the reference by the primary judge in [146] to the photograph taken by Mr B’s sister in late 2022 could have somehow been explained by evidence from that sister, but precisely how was unclear.
Whilst it is true that there is some incongruity between the child’s reference to late 2021, and the prison release date a month later, little turns on that. I am not persuaded that any such inconsistency precludes the finding that the mother continued a relationship with Mr B – the fact that he is the father of the younger children is sufficient to demonstrate that they continued to be in an intimate relationship of some kind.
In any event, weight challenges are nigh invariably forlorn, as the weight given to competing evidence is quintessentially a matter for a trial judge.
Ground 3 fails.
Ground 4
This ground provides:
4.Your honour placed insufficient weight on the child's wishes and completely disregarded the court child experts' evidence at trial. On the 01/06/2023 court child expert [Mr T] explained to your honour that [the child] living with her mother carries a potential risk factor, that's the child living with the father carriers the same potential risk but additionally the child may wonder why her voice is not being heard see paragraph 202 of your honours reasons for judgement, he said if the mother continued supervised visits with family, the child will wonder why the mothers time with her needs to be supervised and thus could seriously undermine the mothers position and be emotionally damaging to the child. When your honour asked the court child expert his thoughts on supervised time at a contact centre, [Mr T] was quick to state that such an arrangement would carry several risks for the child and is something he would not recommend, he also questioned why supervised visitation would continue considering there has been no breach of court orders in almost 2 years. (You can find this evidence in the trial transcript 01/06/2023) and see paragraphs 109, 110 of your honour's judgment. However regardless of the recommendations your honour has ordered indefinite supervised contact between me and [the child] supervised by a contact centre. And regardless of there being no reported issues by the child or the father in regard to my weekly visits [see paragraph 53 of the family report], your honour has given me a reduction in time and frequency in visits. I have gone from 7 hours 1 day a week visits, to 3 hours once a month visits. [please see paragraph 89 of your honour's reasons for judgement where the father states [the child] would be saddened by a reduction in time with her mother]. Under section 60cc your honours orders are not compliant with the best interest of the child. Furthermore, the court child expert indicated that supervised time was not in the best interest of the child. Your honours order for indefinite supervised time at a heavily reduced and costly rate is severely unreasonable and unjustifiable.
(As per the original)
It can be seen that it therefore contends, in substance, that the primary judge gave inadequate weight to the expressed wishes of the child to live with the mother, and the expert evidence about the risk to the child of not living with the mother. My comments above about weight challenges therefore apply equally here.
It is plain that the primary judge was well aware of both pieces of evidence. Thus at [109]–[113] the primary judge said:
109.The Court Child Expert expressed with clarity the balance of risks for [the child] who strongly wishes to maintain contact with her mother, half-siblings and maternal family members.
110.He said that [the child] needs to maintain a close relationship with the mother as she was her primary carer and attachment figure in the initial stages of her life and still has a very strong attachment to her and a genuine desire to spend time with her. He said:
[The child]’s affinity with her mother and her seemingly genuine wish to be a significant part of the maternal siblings lives whether that be because she is the oldest or has a genuine interest there is a clear longing there for [the child] to be part of her siblings lives and that is a bit of a pull factor.
111.However, if the mother was found to be untruthful about her relationship with [Mr B] he would hold significant concerns about the disclosure of any future harm whether it be incidents of family violence or anything else that happens in the mother’s household that is of an adverse nature for [the child] or the maternal siblings.
112.The Court Child Expert went on to say that whatever her final living arrangements, if [the child] was well supported by both parents and given the opportunity to spend time with her mother and her maternal siblings, it would provide [the child] with the most stable arrangement into the future.
113.The Court Child Expert did not waiver in his opinions and proper weight and cogency should be given to his evidence.
Later at [121]–[122] her Honour continued:
121.[The child] also has a meaningful relationship with her mother, that is, one which is significant, important and of consequence to her. This is the case notwithstanding the substantial disruption caused by the change of residence and the reduction in the amount of time they are able to spend together.
122.Subject to risk, there is clearly a benefit to [the child] in maintaining the meaningful relationships she has with both parents.
Moreover the primary judge extensively considered the child’s wishes when addressing s 60CC(3)(a) of the Family Law Act 1975 (Cth) (“the Act”), including [184]–[187] as follows:
184.In assessing the weight to be attributed to these views the Court Child Expert said at [127] of his report:
127. The child expressing a clear wish to live with the mother could be considered unsurprising given she lived primarily with the mother for her entire life until [late] 2021, given she probably misses the maternal sibling [C], and given her apparent loyalty to and protectiveness of the mother (which the child’s interviews and independent material suggests). However, it may also be that the child’s expressed preference to return to living with the mother has been promoted over time by certain messaging, influence and emotional coercion or manipulation by the mother (e.g. the mother recently buying the child a [pet], the child believing that the mother will buy her [another pet], the mother telling the child that she believes things will go “back to normal”). Thus, given the child’s young age and developmental level, the seeming level of influence and emotional manipulation of the child by the mother, and the child’s seeming lack of clarity regarding why [Mr B] has been mostly absent from her life since [early] 2021, a determination of the child’s primary living arrangement should place more weight on some of the key risk issues and considerations in the matter rather than placing significant weight on the child’s expressed wishes regarding her parenting arrangements.
185. In cross-examination the evidence of the Court Child Expert was:
•If, as [the child] had reported to the ICL, her mother had promised to buy her [a pet] when she returns to live with her, to take her to […] shows with the [other pet] her mother had bought for her and that they would go to the beach and to shows when she returned to live with her, it would suggest that the mother has engaged in aligning behaviours.
•If, as [the child] had reported to the ICL, her mother had told her that they were going to live together soon it would be concerning because such statements demand her loyalty to the mother.
•If, as described by the ICL in her second interview with the child on 30 May 2023, [the child] became quieter and lowered her voice when talking about the living arrangements, the change of demeanour would be concerning. [The child] believes she is responsible for and has some control around her living arrangements which is reflected in her freely expressing her views at different times to different people. This is problematic because ‘she is a child who needs the adults in her life to make those decisions for her and for that responsibility to fall on her is inappropriate.’
•Some of [the child]’s expressed wishes are genuine because she has lived with her mother most of her life and she has a connection with the maternal siblings and wants to be there for them but it is also the promise of more material things that would probably have swayed her views.
•Given her age and level of maturity at the time of interview and her inability to understand what change of residence would mean for her, little weight should be placed on her expressed wishes.
186.The mother denied enticing or bribing [the child] into wishing to live with her but that is precisely what she has done. The mother’s discussions with [the child] around her living arrangements are clearly contrary to order 4(d) of the interim orders made on 19 January 2022. The mother’s position, to my mind, demonstrates a lack of insight into the needs of her child and an inability to separate [the child]’s needs from her own. Conversations with [the child] that compete for her loyalty with promises of presents and fun times, draw her into the litigation between her parents and is damaging to her emotional and psychological wellbeing.
187.The presence of her half-siblings in the mother’s household must be a tremendous pull for [the child], and I accept that she would not wish to be separated from her sister [C]. However, for the above reasons I give limited weight to [the child]’s views in terms of returning to live with her mother.
(Footnotes omitted) (Emphasis added)
As I have noted in discussing the previous ground, the weight given to evidence is quintessentially a matter for the primary judge, and given that the outcome was not plainly unreasonable, nor is any other House v The King error demonstrated, this challenge cannot succeed.
This ground fails.
Ground 5
This ground provides:
5.Your honour has erred in ordering indefinite supervised time between myself and my daughter, your honour has not ordered a 'review mechanism' or a review in future. I have been compliant with all orders since [late] 2021 and the current restraint on myself bringing the child in to contact with [Mr B] has been complied with and is proven successful in eliminating any exposure to family violence risk.
(As per the original)
I have already recited [247], [249] and [250] of the primary judge’s reasons above. Whilst it is true that indefinite supervision has been the subject of adverse comment by previous Full Courts (see for example Moose & Moose (2008) FLC 93-375 and Slater v Light (2011) 45 Fam LR 41), more recent cases accept that it nonetheless remains an available option if the circumstances of a particular case require it (as discussed in Bielen & Kozma (2022) FLC 94‑123).
Moreover it must be remembered that although great prominence was given to the risk of harm from exposure to family violence posed by Mr B, that was not the only risk which the primary judge concluded justified supervision, but rather the mother’s emotional manipulation of the child was also at play, and significantly so (see particularly [186], [214]–[217] and [239]).
The primary judge clearly was mindful of the oppressive impact of supervision (at [249]), but nonetheless concluded it was the only safe option for the child (at [247]). Particularly her Honour was persuaded that the mother could not achieve insight (at [246]) and was not satisfied that the mother would comply with orders restraining her from specified conduct (at [169]).
As I explained to the mother during the course of the hearing of the appeal, I am acutely conscious that she was the victim, not the perpetrator of family violence, and apart from her lack of insight and emotional manipulation of the child, was not a bad parent, and that generally a regime of permanent professional supervision might usually be reserved for persons whose conduct has been far more egregious.
Yet her Honour carefully explained why nonetheless such restrictions on the mother’s time with the child were necessary to keep her safe. Whilst others may have fashioned a different regime of orders to those preferred by the primary judge, that is insufficient to establish error, as it cannot be said that the result was plainly unreasonable or otherwise wrong.
Now it appears that perhaps the primary judge did not, in fact, include an order of the kind contemplated by her Honour in [249], namely “the inclusion of an overriding clause that the mother’s time is subject to the parties’ agreement” but given that the father has sole parental responsibility for the child, that is the reality in any event. If the parties want something more concrete, then they should seek to include such an order by asking the primary judge to correct the omission under the slip rule.
Ground 5 fails.
Ground 6
This ground provides:
6.Your honour has erred by not properly addressing the risk matrix. There has been no mental health, drug or alcohol issues regarding me identified by the court. The emotional and psychological issues identified have been from disclosures by a young child and your honour has not labelled me as an "unacceptable risk".
(As per the original)
It is true that the primary judge does not describe the risk posed by the mother’s household as “unacceptable” but that is plainly what her Honour was persuaded of when discussing the need to protect the child from exposure to family violence at [168] quoted earlier.
Further at [172] the primary judge said:
172.There is another aspect to the mother’s behaviour that is of concern to the Court. The mother herself has demonstrated that within her own family, she has a capacity to be hostile, and aggressive. The relationships within the extended maternal family also appear to be fraught.
Whilst not beyond criticism, in that the primary judge did not specifically address the likelihood of the child being again exposed to family violence in the mother’s household, nor the magnitude of harm to the child were that risk event to occur (which Isles & Nelissen (2022) FLC 94-092 explained is the proper approach to risk assessment in cases such as these), that is nonetheless what in fact her Honour in substance did at [243] and elsewhere, and one need not explain why a child’s exposure to events such as those of 1 April 2021 would be likely highly damaging to them.
This ground fails.
Ground 7
This ground provides:
7.For reasons somewhat unknown to me, [the child] has severely fabricated stories to her school and in particularly the independent children's lawyer about myself which has severely damaged my credibility to the court. The court has placed considerable weight on this inconsistent evidence where [the child] states that I have told her certain things {eg, that I apparently told [the child] that we will live together soon, or that I will buy [the child] [pets] ect} I gave evidence at trial in February 2023 that I had already purchased [the child] [pets] well before these proceedings begun. I can go into more detail for the court if needed. The court failed to take in to account the child's history of lying. Please see paragraphs 51, 55, 60 and 120 in the family report and ICL memorandum may 2023 paragraph 3 which documents the child's history of lying.
(As per the original)
The primary judge’s reasons recognise that the child has acknowledged past lies. However the unchallenged evidence included a “Memorandum of Interview” with the child on 31 January 2023 (exhibit E) which included the following:
I spoke with [the child] about the Court hearing, and said to her words to the effect “you know that the Judge is going to make a decision about where you are going to live”, to which she said “yes”. Her demeanor changed and she became less freely spoken when the topic of the court matter came up. She was much more critical of her father and partner and her son. [The child] told me the following information in respect of the relationship with her parents:
1. That she wants to live with the mother and spend time with the father,
2. That her mother is going to buy her [a pet] when she goes with her, and she described activities that they were going to do, such as going to the beach and to shows,
3.She said that she will go to […] shows with the [other pet] that her mother has purchased for her,
4.She stated that her friends in [City L] are much better than her friends in [City U],
5.She stated “I love my biological mother; [Mr B], my step dad; [C] and my brothers more than my biological father, [Ms J] and [F]”,
6.She stated that she sees [Mr B] “is more my father than my biological father”,
7.She stated that “Mun and [Mr B] have a really good relationship”,
8.She stated that she wants to live with her mother, siblings and [Mr B] in a unit.
9.She stated that said “mum said that we are going to live together soon”,
10.She stated that said “[Mr B] went to jail because my mum let me see him”,
I assured her that the Judge would consider all of these things. She returned to her Father without any difficulty and they all left happily together.
(Emphasis added)
As I say, that evidence was not challenged, nor was the ICL required for cross-examination. The fact that the mother may be able to proffer some explanation or context for the child saying such things does not mean that the child’s statements must, or even should, be rejected.
Ground 7 fails.
Ground 8
This ground provides:
8.Your honour erred Under section 60cc(3)(b) and section 60cc(3)(d) see paragraph 190 and 197 in your honour's reasons for judgement. These orders will significantly damage [the child’s] relationship with her maternal family as thy are not permitted to visit […]. All of whom [the child] has consistently expressed are important to her. At paragraphs 109, 110, of your honour's reasons for judgement, court child expert gave evidence regarding the importance of time [the child] should spend with her mother and siblings. At paragraph (21) of the CIC report the father identifies the maternal grandmother ([Ms O]) as a very important person to [the child]. Please also see paragraphs 102, 106, 109, 110, 112, 116 & 117 of the family report. These orders will severely damage [the child’s] close relationship with her maternal family and siblings and could diminish or cease my relationship with [the child] altogether. Under section 60cc(2)(a) please see paragraph 217 of your honours judgement which does not support the orders which have been given.
(As per the original)
Again this ground contends error in the weight which the primary judge gave to the considerations articulated in ss 60CC(3)(b) and (d) of the Act.
It is said that the orders will “significantly damage” the child’s relationship with the maternal family generally. However at [179] and [251] the primary judge said:
179.For his part, the father has been willing to facilitate the relationship between [the child] and her extended maternal family. She was a flower girl at her maternal uncle’s wedding [in early] 2023, and arrangements including for [the child]’s dress were all made through the father. The father clearly realises that these relationships are significant and important for [the child]. Despite the mother’s allegations, which I find have been unnecessarily exaggerated in order to seek some advantage in these proceedings, there is no evidence of [the child] being at any risk of harm with her maternal aunts, uncles or cousins.
…
251.I am satisfied that the father understands how important it is for [the child] to have her mother and siblings in her life and that he has a superior capacity to provide for all of [the child]’s needs, emotionally and intellectually.

More, at [259] her Honour continued:
259.I am not satisfied that the maternal grandmother is an appropriate supervisor and I have no indication that the maternal aunt [Ms V] (nominated by the father) is prepared to take on the responsibility of supervision and I understand that the mother and her sister currently have a very strained relationship. The maternal great grandmother has previously been a supervisor but since the death of her husband in late 2022 has found the responsibility burdensome. She may however be prepared to supervise the mother’s time on Christmas Day every 2 years which is the order I propose to make because otherwise [the child] will never have the opportunity to spend Christmas with the mother and her family.
No error of a House v The King kind is made out, and this ground fails.
Ground 9
This ground provides:
9.Your honour has erred Under section 60cc(3)(i) in her reasons for judgement in paragraph 222, please see paragraph 87 of the family report which details how I initially told the father in [early] 2021 that I was having problems with [Mr B]. Your honour erred at paragraphs 223 as [the child] has never been exposed to family violence and it Is undisputed that [the child] was not home at the night of the incident in [early] 2021. And your honour's opinion that it was not the only incident is a bias assumption as no evidence has been provided that suggests previous domestic violence.
(As per the original)
At [222] of the primary judge’s reasons her Honour said:
222.Many of the father’s suspicions of the mother not being completely candid with him are unfortunately well founded. Her failure to explain or admit to the father she was having serious issues in her relationship with [Mr B] was a serious error of judgement on the mother’s part.
It is not to the point that the mother may have told the father prior to early 2021 that she was having problems with Mr B; it was her failure to tell the father of the early 2021 violence which was critical, as the primary judge made clear at [129] recited earlier. On no view did s 60CC(3)(i) loom large in this case.
In any event the primary judge’s risk assessment was prospective, and was based on the ongoing prospect of the mother maintaining or rekindling a relationship with Mr B. That was a substantial foundation of her concerns.
This ground fails.
Ground 10
This ground provides:
10.Your honour has erred under section 60cc(3)(e) please see paragraph 207 in reasons for judgement. The current orders that your honour has imposed would quickly put me at severe financial distress, with visitation costs set towards $4000 per year for the next 10 years. These orders could also put the father and his family at financial stress, compared to our previous arrangements for the last 2 years which bared no visitation costs for me or the father. Please see paragraph 205 of your honours reasons for judgement which supports my claim.
(As per the original)
At [205] the primary judge said:
205.There are significant practical difficulties and expense in the child spending time with each parent. [The child] currently spends supervised time with her mother at the home of the maternal great grandmother every Sunday. The mother lives in [City L], the maternal great grandmother in [Town W] and the father in [City U]. Since [early] 2022 the father has been driving [the child] from [City U] to [Town W] every Sunday, a round trip for [the child] of [over 150kms] and for the father [over 300kms]. He says that in the cost of petrol is expensive. His family has not been able to go away for more than a week’s holidays and the weekend travel means that neither [the child] nor [F] have been able to commit to extracurricular or sporting activities. This arrangement is not sustainable.
(Emphasis added)
Later at [207]–[209] the primary judge continued:
207.[S Region] Support Services is a professional supervision agency that operates in [City L] and [City U]. They provide minimum 3 hour visits and are available 7 days a week. Fees are on a sliding scale depending on whether they are weekday or weekend visits. Weekdays start at $80.60 per hour and the fees increase to $124.40 on a Sunday. The Court has limited information about the parties’ financial circumstances but notes that the mother is currently on maternity leave and has the primary care of three children under the age of 5. Travelling with young children can be challenging but not impossible.
208.Until recently the father was working and his partner is employed full-time in the retail sector. They also have the primary care of two children.
209. I am satisfied that both parties should contribute to the supervision costs.
(Emphasis added)
It is plain that the primary judge recognised there were practical and financial difficulties in professionally supervised time, and hence it cannot be said that her Honour did not take into account a relevant consideration. Moreover, the father is required to equally contribute to the costs.
The agreed fact that the mother has recently spent $1,213.74 for five supervised visits does not point to error, as it is consistent with what the primary judge anticipated at [207].
This ground fails.
Ground 11
This ground provides:
11.Under section 60cc(3)(1) your honour is obligated to make orders that are in the child's best interests and are doable to prevent further litigation. Please see paragraphs 229,230, 231, 249. in your honour's reasons for judgement where your honour admits that with these orders there is a very real possibility that further proceedings will be instituted. And that such orders have the potential to destabilise [the child’s] living arrangements with her father and that [the child] could very well resist contact centre time with her mother.
(As per the original)
This ground contends that the primary judge did not properly comply with s 60CC(3)(l). However plainly her Honour did consider that matter, since she expressly said:
229.There is a very real possibility that further proceedings will be instituted. It is difficult to predict how [the child] will react to an order that she spend very limited time with the mother and her maternal siblings. According to the Court Child Expert such orders have the potential to destabilise her living arrangements with the father.
230.These orders necessarily involve expense for the parties in order to ensure that [the child] maintains a meaningful relationship with both her parents and the parties’ respective financial positions may wax and wane over time.
231.Orders for supervised time also carry with them a risk of further proceedings. The mother may not attend the visits for a whole variety of reasons including expense, incapacity or onerous caring commitments; or [the child] may become resistant to travel or time at a contact centre.
232.If the mother and [Mr B] resume their relationship and the violence re‑emerges, or the mother enters into another abusive relationship, it will not only place [C] and the [other children] at risk, but could also lead to further litigation.
(Emphasis added)
The primary judge was not obligated to make orders that avoided further litigation, only to take the desirability of that into account, which plainly she did.
This ground is without merit and fails.
Ground 12
This ground provides:
12.Your honour failed to take in to account [Mr B’s] affidavit and family report evidence at paragraphs 65, 90, 91, 92, 93, 94, 95 & 96 which contradicts the child's disclosures in interviews and also contradicts your honours claims at paragraphs 168, 223 in your honours reason for judgement. As stated previously [Mr B] was prepared to give evidence at trial but due to severe misrepresentation by my legal representation [Mr B] did not give evidence which would have helped my case greatly.
(As per the original)
Mr B was not called to give evidence and his affidavit was not otherwise sought to be relied upon by the mother. I have already rejected the claim that her lawyer’s failure to call him as a witness in her case could lead to the appeal succeeding.
As to the balance of this ground, I have recited [168] and [223] earlier in these reasons.
That there was material which was to some degree in conflict with the primary judge’s findings did not compel its acceptance.
This ground fails.
Ground 13
This ground provides:
13.Your honour erred by allowing my previous criminal charges that I was found not guilty of at trial in local court to form part of her chain of reasoning. See paragraph 172 of your honour's reasons for judgement, your honour mentions a court case between myself and my mother which after a trial I was found not guilty off (see paragraph 49) even though I was found not guilty by another judge, your honour still uses that against me in her reasoning for judgement. I find this to be extremely bias and substantial injustice.
(As per the original)
I have already recited [172] earlier in these reasons.
The primary judge was well aware that the mother had been found not guilty of criminal charges with respect to her mother (see [174]) and more, specifically said that she was not able to make a finding that the mother “has engaged in abusive and threatening behaviour towards the maternal grandmother” (at [238]).
Thus the premise upon which this ground is not made out, in that the primary judge did not use that alleged event as part of her chain of reasoning for making the parenting orders which she did.
Further, the rejection of the maternal grandmother as a permanent supervisor was explained by the primary judge at [259], and no part of that explanation involved any history of abuse of threats to her by the mother.
This ground fails.
Ground 14
This ground provides:
14.Your honour made several mistakes that contained plainly wrong information which was used as primary considerations. These can be found at paragraphs 3, 25, 41, 128, 168, 125 judge states I do not mention allegations towards the father physically discipling the child until [mid] 2022, this is incorrect please see CIC report paragraph 14.
(As per the original)
The main challenge made by this ground is not to a central issue in the case, but rather an attempt to revive a claim that the father’s household also posed some risk to the child. At [125]–[127] the primary judge said:
125.Since orders were made for [the child] to move to the primary care of her father, the mother has raised allegations of the father verbally and physically abusing the child. These allegations were first raised in her affidavit filed 16 August 2022 prepared in the lead up to the family report interviews. She had not raised them in any of her 3 earlier affidavits. The allegations became increasingly weaponised in her two most recent affidavits filed during the adjournment period in which she alleges that in a recent telephone call she believed the father was under the influence of drugs or alcohol, that he is excessively disciplining [the child] and forcing her to undertake chores with only a break for lunch and finally deposing:
I fear that one day her father will take his strict disciplinary measure too far or lose his temper so much that he will kill my little girl.
126.It is an assertion without any foundation and coming so late in the proceedings is clearly an exercise in clutching at straws by the mother. I can only assume these last minute allegations were tailored to place the father in a poor light and to bolster her own case.
127.In his affidavit filed 31 May 2023 the father denied the allegations. He deposed to a telephone conversation which took place [in early] 2023 between [the child] and her mother which he said he terminated because in his opinion the mother was ‘questioning [the child] almost to the point interrogation.’ I accept the father’s evidence on this point which is entirely consistent with the process of evidence gathering embarked upon by the mother during the adjournment period.
(Footnotes omitted)
Later at [180] the primary judge continued:
180. Again despite the mother’s allegations that the father:
•was largely absent from [the child]’s in the early stages of her life;
•has verbally abused and threatened [the child] ‘for the smallest thing’;
•robbed [the child] of her Christmas and birthday monies;
•smacked [the child] ‘very hard’;
•punished [the child] severely for the ‘smallest mistake’;
•body-shamed [the child] for having body odour;
•forced [the child] to clean the entire house and work ‘7 hours straight’; and
•neglected [the child]’s medical needs;
I find that the father has been a constant presence in [the child]’s life and there is no reliable evidence that he has caused her any physical harm or neglect, or that he has exposed her to family violence.
(Footnotes omitted)
Even if there be some error in the primary judge’s consideration as to when the mother first raised concerns about the father, it is immaterial (De Winter v De Winter (1979) 23 ALR 211).
To the extent that, under this ground, the mother contended that the primary judge erred at [41] in relation to the date of the mother’s application to vary an AVO by changing the terms of the restraint on Mr B, it is clear that her Honour was referring to the date when the variation was made, not the filing of the mother’s application.
This ground fails.
Ground 15
This ground provides:
15.Your honour erred under section 60cc(2)(a) with the orders made. Your honour erred in allowing no time between me and [the child] for Mother's Day or Easter. Your honour also did not order any time between [the child] and her siblings for her sibling's birthdays. Your honour also erred in only allowing Christmas time once ever second year. The current Christmas arrangements would see the father not being able to spend a meaningful time with his family once every second year due to driving and would see me have no Christmas time every second year.
(As per the original)
Patently no House v The King error is raised by this ground, which simply criticises the minutiae of the orders. It could not be said that these particular orders were patently wrong or plainly unreasonable. That another judge may have made different orders does not demonstrate error.
This ground fails.
Ground 16
This ground contends:
16.Whether your honour adequately considered the impact of the orders on the child and whether your honour gave no regard to the court experts evidence and no regard to the mother and fathers orders they sought and solely adopted the independent children's lawyer's orders as the fathers orders he sought gave me and the child every second weekend time.
(As per the original)
This ground has been sufficiently addressed above. The fact that the father may have been prepared to accept more regular time between the child and the mother does not establish error by the primary judge.
OUTCOME
No ground of appeal succeeds and the appeal will be dismissed.
COSTS
In the event the appeal failed, ultimately the father did not press any application for costs, as his failure to file a schedule of costs as required by the rules precluded him from so applying.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.
Associate:
Dated: 21 December 2023

NAA 270 of 2023 NCC 2284 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BARBIR Appellant
AND:	MR ERICKSON Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Erickson & Barbir (No 2) [2023] FedCFamC2F 921
Appeal number(s):	NAA 270 of 2023
File number(s):	NCC 2284 of 2021
Judgment of:	TREE J
Date of judgment:	21 December 2023
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders for indefinite supervision – Procedural fairness – Incompetency of counsel – Weight challenges – Where no error of a House v The King (1936) 55 CLR 499 kind is made out – Where the weight given to competing evidence is quintessentially a matter for a trial judge – Where the orders are not patently wrong or plainly unreasonable – That another judge may have made different orders does not demonstrate error – Appeal dismissed – Application in an Appeal dismissed – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) s 60CC Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Cases cited:	Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 De Winter v De Winter (1979) 23 ALR 211 House v The King (1936) 55 CLR 499; [1936] HCA 40 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Maddax & Danner [2016] FamCAFC 176 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155 Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs:	105
Date of hearing:	12 December 2023
Place:	Cairns via Microsoft Teams
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Willoughby
Solicitor for the Respondent:	Tony Cox Lawyers
Counsel for the Independent Children's Lawyer:	Ms Reid
Solicitor for the Independent Children's Lawyer:	Hannaway Lawyers

ORDER MADE BY:	TREE J
DATE OF ORDER:	21 DECEMBER 2023