FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barlow & Sellers (No 3) [2022] FedCFamC1A 105
Appeal from: Barlow & Sellers [2021] FedCFamC1F 327 Appeal number(s): NAA 15 of 2022 File number(s): ADC 3611 of 2012 Judgment of: ALDRIDGE, AUSTIN & TREE JJ Date of judgment: 13 July 2022 Catchwords: FAMILY LAW – APPEAL – Where the mother appeals from final parenting orders – Procedural fairness – Bias – Where these allegations are not substantiated – Family violence – Where the primary judge did not accept the mother’s evidence and found the issue was not relevant – Where the Independent Children’s Lawyer was under the obligation to tender only material they reasonably believed to be relevant, not all available material – Children’s views – Challenges to weight – Findings were open on the evidence – No error established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) ss 68LA Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Giltson & Basfield [2014] FamCA 319
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jess & Jess (2021) FLC 94-055; [2021] FamCAFC 159
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 70 Date of hearing: 1 June 2022 Place: Adelaide (via video link), delivered in Sydney The Appellant: Self-represented litigant Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Thomson & Associates Counsel for the Independent Children’s Lawyer: Ms Olsson Solicitor for the Independent Children’s Lawyer: Silkwoods Chambers ORDERS
NAA 15 of 2022
ADC 3611 of 2012FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BARLOW
Appellant
AND: MR SELLERS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:
13 JULY 2022
THE COURT ORDERS THAT:
1.The appeal 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barlow & Sellers (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & TREE JJ:
INTRODUCTION
This is an appeal from final parenting orders…
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- Barlow & Sellers (No 3) [2022] FedCFamC1A 105
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- [2022] FedCFamC1A 105
- Decision Date
CaseChat Overview and Summary
In the case of Barlow & Sellers (No 3), the mother appealed against a decision made by the Family Court of Australia. The primary dispute centred on the custody and care of the parties' children, with the mother arguing that the primary judge failed to properly consider the evidence provided by Dr EE, an expert psychiatrist who had assessed both parents. The mother contended that the primary judge's failure to adequately weigh Dr EE's evidence resulted in an unjust outcome for her and the children.
The court was tasked with determining whether the primary judge erred in her consideration of Dr EE's evidence. Specifically, the court needed to examine whether the primary judge had overlooked or inadequately assessed the psychiatrist's findings regarding the father's mental health and its impact on his parenting capabilities. Additionally, the court needed to consider whether the primary judge's conclusions about the mother's need for therapy were adequately supported by the evidence presented at trial.
The court found that the primary judge had indeed considered Dr EE's evidence, noting that the psychiatrist's assessment of the father's mental condition was thoroughly reviewed. The court highlighted that the primary judge concluded that the father's condition did not significantly impair his ability to care for the children, contrasting this with the evidence concerning the mother's emotional dysregulation and potential risk to the children. The court further noted that the mother's argument regarding the lack of evidence about her willingness to obtain counselling was unsupported, as there was evidence presented that suggested the need for such therapy. Therefore, the court found no merit in the mother's appeal.
The court dismissed the mother's appeal and, considering her financial situation, decided that no order for costs should be made against her. The father's request for costs was denied due to the mother's financial circumstances and the overall outcome of the appeal.
The court was tasked with determining whether the primary judge erred in her consideration of Dr EE's evidence. Specifically, the court needed to examine whether the primary judge had overlooked or inadequately assessed the psychiatrist's findings regarding the father's mental health and its impact on his parenting capabilities. Additionally, the court needed to consider whether the primary judge's conclusions about the mother's need for therapy were adequately supported by the evidence presented at trial.
The court found that the primary judge had indeed considered Dr EE's evidence, noting that the psychiatrist's assessment of the father's mental condition was thoroughly reviewed. The court highlighted that the primary judge concluded that the father's condition did not significantly impair his ability to care for the children, contrasting this with the evidence concerning the mother's emotional dysregulation and potential risk to the children. The court further noted that the mother's argument regarding the lack of evidence about her willingness to obtain counselling was unsupported, as there was evidence presented that suggested the need for such therapy. Therefore, the court found no merit in the mother's appeal.
The court dismissed the mother's appeal and, considering her financial situation, decided that no order for costs should be made against her. The father's request for costs was denied due to the mother's financial circumstances and the overall outcome of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
We do not agree that there is an absolute rule that witnesses should not be asked leading questions, but in any event, in the absence of the transcript, we are unable to see whether any such questions were asked, whether they were objected to and what, if any, the ruling on those objections was. We are unable to take this matter any further.Did the primary judge fail to consider the evidence of Dr EE? The mother submitted that the primary judge failed to consider the evidence of Dr EE, which she considered demonstrated that the father had a mental illness which would adversely impact on his ability to meet the physical and emotional needs of the children. Dr EE was the single expert psychiatrist in the case, who conducted an assessment of the parties. His evidence as to the mental state of each of the parties was extensively considered by the primary judge at [265]–[289]. Her Honour said:289.Dr EE reported that the father suffered from Condition FF, that he considered that it was under control and that it could be adequately treated by his General Practitioner. He considered that the level of Condition FF suffered by the father should not impact significantly on his parenting ability and his opinion was not shaken in cross-examination. This led to the conclusion that the children were not at risk of any form of harm or abuse on the part of the father (at [339]) and that both parents have the capacity to provide for the physical needs of the children (at [394]). Thus the evidence as to the husband’s condition was expressly considered. We add that it is clear from the finding that the low level of Condition FF from which the father was found to suffer did not significantly impact on his ability to care for the children. This is in marked contrast to the evidence in relation to the mother which was:287.He expressed the view that he thought what he had observed in court illustrated a very different behaviour on the part of the mother to that exhibited by her during the consultation in his rooms and that he had observed her in court to be emotionally dysregulated with difficulty in following guidance and being very focussed on the father’s negative traits. 288.He said that he did consider paranoia in his report and that he had probably seen evidence in the courtroom that perhaps raised that possibility. He considered the mother’s aggressive tone and her outbursts from time to time to be either part of her fundamental personality structure or that she suffered from a delusional disorder with a paranoid subtype. This, and other evidence, led the primary judge to conclude that, unlike the father, there was a need to protect the children from the risk of harm in the care of the mother. The mother also submitted that the topic of her willingness and need to obtain counselling did not feature in the trial and no evidence was produced in support of such a finding. However, the mother was cross-examined about attending therapy and “sought therapy when she thought she needed it” (at [211]). Dr EE also expressed a view that if the Court found in the father’s favour, then it would be appropriate for the mother to attend therapy (at [269]–[270]). Thus, there was evidence to support her Honour’s conclusion that the mother would benefit from therapy (at [405] and [455]).
Decision
Reasons for decision
The mother’s challenges to the evidence have been addressed above. She made no other submissions seeking to explain this ground and therefore no error is identified. CONCLUSION AND COSTS It follows that the appeal will be dismissed. The father sought an order for costs on the grounds that the appeal had been wholly unsuccessful, but having regard as to the mother’s financial position, we are satisfied that it is just in all of the circumstances that there be no order as to costs.
Ratio Decidendi
Legal Principle Established
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