BEATTIE & DEMYAN
[2012] FamCAFC 112
•28 June 2012
FAMILY COURT OF AUSTRALIA
| BEATTIE & DEMYAN | [2012] FamCAFC 112 |
| FAMILY LAW – APPEAL – appeal on basis of weight – appeal dismissed. FAMILY LAW – CHILDREN – best interests – with whom a child spends time – mother made an interim application for a stay of parenting orders following an incident of violence against her and involving the child – stay not granted – held on appeal that first instance judge, in not staying the orders, afforded proper weight to the need to protect the child from physical or psychological harm – final hearing in four months – mother not complying with orders – issues to be aired and determined at final hearing. FAMILY LAW – CHILDREN – family violence – once family violence is established, Family Law Act 1975 (Cth) does not automatically proscribe contact between a child or children and the perpetrator – best interests of child or children are paramount. |
| Family Law Act 1975 (Cth) s 60CC |
| Goode & Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Ms BEATTIE |
| RESPONDENT: | Mr DEMYAN |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | NCC | 2026 | of | 2009 |
| APPEAL NUMBER: | EA | 147 | of | 2011 |
| DATE DELIVERED: | 28 June 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Strickland & Murphy JJ |
| HEARING DATE: | 28 June 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 December 2011 |
| LOWER COURT MNC: | [2011] FamCA 1065 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Beattie in person |
| FOR THE RESPONDENT: | Mr Demyan in person |
| INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The mother’s appeal, filed 22 December 2011, be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beattie & Demyan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 147 of 2011
File Number: NCC 2026 of 2009
| Ms BEATTIE |
Appellant
And
| Mr DEMYAN |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
BRYANT CJ
We have determined that we will not allow the appeal and the appeal will be dismissed. These are the reasons for our decision.
This appeal is brought by the mother against a decision made by Austin J on
12 December 2011 in which his Honour heard an interim application by the mother to effectively suspend previous orders made by him in circumstances which I will describe shortly. The mother’s application, filed on 25 October 2011, was also for final orders as well as the interim orders she sought.
His Honour dismissed her application for interim orders but gave directions in relation to the further progress of the matter to a final hearing.
We have been informed by the parties that the final hearing is to take place on 17 October 2012 before Austin J in Newcastle. The Bench raised with the parties whether in all the circumstances, given that the matter would be heard by Austin J so soon, there is utility in proceeding with the appeal today. However, we have been told that contact is not presently taking place between the father and the child, and we accept that, from the mother’s point of view, if we allowed the appeal it would mean that the orders would not have been in force since the lodging of her application on 25 October 2011. That might in turn have some impact on what we are told is an application by the father for contravention of the orders. So despite the apparent closeness of the hearing, we accept that there is some need from the mother’s point of view to proceed with the matter today.
Background
The parties have one child, born April 2009. He was just over two and a half at the date of the hearing before Austin J. He is now three. Prior parenting proceedings between the parties were determined in the Family Court when Austin J pronounced final orders on 9 March 2011. In summary, those orders provided that the mother have sole parental responsibility for the child and the child live with the mother.
The child was to spend time with the father initially for two hours two days a week, eventually increasing to two consecutive nights per week from
16 April 2012 until the child commences school, and thereafter to include half school holidays, with specified variations on special days. For the first
12 weeks, the father’s time with the child was to be supervised by the paternal grandmother or the staff of the children’s contact service stipulated in the orders. The orders also made provision, when on overnight time with one parent, for the child to communicate by telephone with the other parent.
There were a number of other orders made but I do not need to detail those for the purposes of the proceedings today. The orders provide that from
16 April 2012 the changeover for the parties was to be at the local Police Station. Previously the changeover was at the children’s contact service. The father informed us today that he is still communicating with the children’s contact service whereas the mother indicates that it is her view that the changeover place should now be the local Police Station.
That difference between the parties, however, is academic because it is conceded by the mother that she has not been making available the child for contact for some considerable time.
Neither party appealed the orders of Austin J made on 9 March 2011. However, the father subsequently filed a contravention application, on 24 March 2011. That application was adjourned for mention before Austin J on 12 December 2011. On that day, which became a hearing of the mother’s interim application, his Honour indicated that the father’s contravention application had been overtaken by subsequent events.
Again, the father has informed us that as a matter of practicality, the matter will be proceeding to trial on the basis that there are contraventions, without him having made a plethora of applications in the meantime. The material facts which are relevant to the non-contact between the child and the father will be put before his Honour by both parties. That seems to me an entirely sensible manner of proceeding.
On 30 September 2011 the mother filed a notice of child abuse or family violence, and a supporting affidavit. On 25 October 2011 the mother filed an initiating application in which she sought various final and interim parenting orders, and sought that the Court conduct a fresh hearing about those parenting orders. In particular, in relation to the interim orders, the mother sought that the orders of 9 March 2011 be stayed, to use her terminology. The effect of interim orders sought was that all contact between the father and the child would cease.
The father filed his response to the mother’s application on 21 November 2011, proposing both final and interim parenting orders. He also wanted the Court to conduct a further hearing to review and effectively reverse the orders made on 9 March 2011. The matter came on before Austin J on 12 December 2011 for the hearing of the mother’s application for interim orders contained in her application. His Honour made orders and delivered ex tempore reasons for judgment dismissing the mother’s application and leaving in place the orders of 9 March 2011. It is against that decision that the mother now appeals.
Appearances by the Parties
I should record that each of the parties appears in person before us on this appeal. As part of the directions for the final hearing, Austin J made an order for appointment of an independent children’s lawyer. That order has been put into effect. The Court was contacted by the independent children’s lawyer who sought leave not to appear in relation to this appeal because he was not party to the interim proceedings before Austin J on 12 December 2011 which gave rise to the appeal. That leave was given.
Grounds of Appeal
The grounds of appeal are drawn by the mother. There are four grounds of appeal, which in my view all relate to matters of weight:
·Ground 1 asserts that his Honour failed to give sufficient weight to a serious allegation of family violence against the mother, which I will detail.
·Ground 2 asserts that his Honour, in failing to suspend the existing orders, failed to take a cautious approach or protective measures.
·Ground 3 is somewhat discursive in nature but in summary asserts that his Honour failed to give adequate weight to the allegations of assault and risk.
·Ground 4 asserts that his Honour failed to consider the serious and weighty nature of the issues of domestic violence intended by the legislative path set by Parliament.
It is therefore, in my view, apparent that the grounds all relate to matters of weight. This is confirmed by the submissions put to us this morning by the mother as to the matters that his Honour took into account and what she says was the inadequate weight his Honour gave to them.
Having set out in his Honour’s reasons for judgment the background to the matter, his Honour then dealt with the gravamen of what was before him.
His Honour says at [18] of those reasons for judgment that:
The sum total of the evidence adduced by the mother on the issue goes to prove that, [in] September 2011, the father assaulted the mother in the presence of the child, which event resulted in the prosecution and conviction of the father for the offence of “assault occasion actual bodily harm”, for which he was sentenced … The sentence comprised a fine of $1000 and a good behaviour bond for a period of two years, conditioned that he comply with the terms of any current apprehended domestic violence order. Concurrently with that conviction, a fresh apprehended violence order was made against the father for the protection of the mother for a period of two years.
His Honour noted at [19]:
Although it is common ground that the father has appealed against his conviction and sentence, and also apparently about the imposition of the apprehended violence order, as the evidence currently stands, the following facts are incontrovertible – the father assaulted the mother [in] September 2011; that assault occurred in the presence of the child; and the father has been convicted, which means that another court has found the allegation proven beyond reasonable doubt.
His Honour found that it was apparent from the affidavit material adduced by the mother that the assault was more than trifling, and that it resulted in lasting injury to her in the form of gross bruising and abrasions. His Honour noted that the father was aware of the mother’s affidavit material and had not made any mention of it in his own affidavit. As a consequence, his Honour said at [20] that “as things presently stand, there is no contest at all about the occurrence of the incident [in] September 2011”.
His Honour then went on to indicate that the mother’s case was, effectively, that the occurrence of the serious incident in September 2011 should operate to suspend the parenting orders made on 9 March 2011. His Honour noted that the submission was predicated on the provisions in ss 60CC(2)(b), 3(j) and 3(k) of the Family Law Act 1975 (Cth) (“the Act”), which influence the Court’s determination about the child’s best interests. Those sections make particular mention of family violence and the importance of protecting children from harm and risk of harm.
His Honour also noted that just as the assault in September 2011 was not the subject of controversy, nor was the fact that the mother had not diligently complied with the orders made on 9 March 2011. He noted that the father’s allegations about the mother’s intermittent and unsatisfactory compliance with the orders remained unchallenged.
However, his Honour went on to say, at [23]:
At this point, having regard to the paucity of affidavit evidence, I draw no nexus between the commission of the father’s assault upon the mother and the father’s continuing frustration at the mother’s refusal to faithfully comply with the orders made in March 2011. There may be some causal nexus, but there is insufficient evidence presently before the Court to demonstrate it.
His Honour then referred to the Full Court decision in Goode & Goode (2006) FLC 93-286 as setting out the way in which an interim proceeding should proceed. His Honour applied those principles together with the provisions of the Act, and determined that he was not satisfied that the orders made on
9 March 2011, following a thorough and comprehensive contested hearing, ought to be disturbed on an interim basis.
It is, I think, important to note that following those comments, his Honour went on to say at [28]:
… that is not to excuse the father’s commission of the assault committed upon the mother [in] September 2011, which will no doubt feature significantly as an issue in the re-contested proceedings for further final orders.
It is in the context of those orders that I turn to consider the grounds of appeal as raised by the mother. As his Honour noted, s 60CC(2) of the Act provides for two primary considerations when a court is considering what is in a child’s best interests. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act, as it stood at the time his Honour heard the matter, requires a court to consider and weight the two primary considerations in s 60CC(2), as well as consider any relevant factors outlined in s 60CC(3). His Honour noted that he was required by s 60CC(3)(j) to take account of any family violence involving the child or a member of the child’s family, and by s 60CC(3)(k) to take into account any family violence order that applied.
I should state that, as a result of amendments to the Act which came into effect in June this year, there has been an amendment to s 60CC(2). The amendment makes it clear that, in considering the primary considerations, where there is a clash between the two, the need to protect a child from harm or risk of harm overrides the child’s right to a meaningful relationship with both parents.
The federal government found it necessary to amend the legislation for reasons that are well documented in a number of reports commissioned by the government over the last few yeas. For my own part and in my view, it is clear from the legislation as it was prior to the recent amendments that a child is to be protected if necessary and that the Court will do whatever is necessary to ensure that that protection takes precedence over other imperatives. However, that is not to say that in every case where there is some family violence, the result will necessarily involve a cessation of all contact, as is sought here.
What the Act requires is that there be a weighing up of the evidence about the violence alleged and about the benefit of a meaningful relationship, in the context of existing orders. That is so that consideration can be given to whether there needs to be any change to existing orders, or new orders made to protect the children and, if so, what form those orders should take. The Act does not prescribe what orders are to be made where findings of family violence are made and does not, in particular, proscribe any orders for contact at all; it simply requires that the Court ensure that in each case, the child’s interests are protected in the context of the facts of the case.
In this case, there was no contest about the facts that had occurred. The background context that his Honour had to take into account was the orders that his Honour had made on 9 March 2011 after a final hearing. Despite the mother’s assertions that his Honour did not give proper weight to the risk to the child of ongoing contact with the father, this is certainly not borne out by consideration of the transcript.
First, it is clear from looking both at the transcript and the mother’s initiating application of 25 October 2011 that there was no doubt in the minds of the parties and his Honour that the mother’s case was for cessation of all contact between the father and child prior to the final hearing.
The mother was represented before his Honour. His Honour said to counsel for the mother:
… Well, occurrence of family violence is a very serious thing and it’s something that I’m not just advised to take into account but obliged to do so by the Act. But is the mother’s case that because the father assaulted her …, that necessarily means that the orders I made following a highly contentious hearing involving all of the evidence concerning the partys [sic] history ought to be suspended?
(transcript 12 December 2011, page 9, lines 1 – 6)
Counsel for the mother said that was the mother’s case.
I think it is important to say that it is very clear from that passage that
his Honour well understood the seriousness of the allegations and the task that was before him. In other words, to take the allegations into account in the context of the original orders and what his Honour was then being asked to do by the mother. In the exchanges with the father, during the course of the interim hearing, in my view, his Honour made it abundantly clear that he understood, and was concerned about, the extent of the violence that had occurred. His Honour observed:
There’s no evidence that [the child] was injured. I’m not talking about physical injury. I’m talking about the emotional harm he would suffer as a consequence of seeing his father bash his mother up.
(transcript 12 December 2011, page 10, lines 45 – 47)
His Honour further said to the father:
You can take it as read that I would find or infer that a child would be emotionally disturbed by witnessing such an incident between his or her parents.
(transcript 12 December 2011, page 11, lines 4 – 5)
His Honour then said:
I’m prepared to regard that as a certainty.
(transcript 12 December 2011, page 11, line 9)
And his Honour further said:
… She said you were arrested. She has attached photographs of the injuries she said she sustained from what you did to her on that occasion. I know you have been charged and convicted and sentenced in respect of that event.
(transcript 12 December 2011, page 11, lines 22 – 25)
His Honour pointed out to the father that the uncontested evidence before
his Honour was that everything the mother alleges is true and correct.
As I have indicated, it is clear that the mother’s appeal is against the weight given by his Honour to the evidence. I am satisfied, from his Honour’s reasons and from the transcript where his Honour discussed the evidence with the parties, that his Honour was both aware of the seriousness of the assault and the likely effect on the child, and that his Honour also understood the imperative in the Act to consider whether continuation of the orders, as they were, was going to protect the child from physical or psychological harm.
The mother contended before us that the child was involved in the assault and was witness to it, that the assault occurred at home, which should be a sanctuary, and that the assault was not provoked. It is clear, in my view, that his Honour understood all of those facts. The mother contended as well that his Honour recognised the existence of the conviction and the possibility of harm, including emotional harm, to the child, but chose not to vary the orders or, as she put it, take protective measures.
Those concessions, I think, indicate the difficulty in appealing against a discretionary order where, effectively, the mother concedes, and as appears, in any event, from his Honour’s reasons and the transcript, that his Honour did have regard to the seriousness of the assault and possible risk to the child. However, weighing up those matters, his Honour clearly determined that the benefit to the child of having a meaningful relationship with both of the child’s parents, notwithstanding the assault, required him to dismiss the application and to leave in place the existing orders.
The difficulty in overturning a discretionary judgment solely by reason of matters of weight is well known and understood. Before an appellate court can reverse a decision of a trial judge founded upon the exercise of judicial discretion, it must be satisfied that the trial judge acted upon a wrong principle or the decision was plainly wrong so that the decision was no proper exercise of the discretion: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.
As the High Court said in House v The King (supra) at 505:
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.
In Gronow v Gronow (supra), Stephen J said at 519 - 520:
While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In my view, having regard to his Honour’s reasons and the matters to which I have referred, no error of fact or principle has been demonstrated, nor has it been demonstrated that his Honour took into account irrelevant matters, or overlooked relevant matters. Consequently, in my view, the appeal must fail. I would dismiss the appeal.
STRICKLAND J
During submissions today, I raised with the parties the utility of the appeal, and the Chief Justice has touched upon that. I raised that in the circumstances where the orders appealed against were interim orders, where the final hearing, we were told, is listed to commence on 17 October 2012, some four months away, where we were also told that the mother is not complying with the orders that are currently in place and the father has not seen the child since
August 2011, where the father has resolved, it seems, to not file any further contravention applications, and where he, as well as the mother, is now just waiting for the final hearing to take place so that all the issues in dispute can be properly aired and then determined by Austin J.
The mother says though, that despite these circumstances, it is still important to consider whether his Honour erred in not suspending the orders in light of the assault that occurred, and she also feels that she may be prejudiced at the final hearing if she does not pursue the appeal. In other words, as the Chief Justice has said, if the appeal, for example, was allowed, then there may very well be no basis, indeed probably there would be no basis for any contravention application. The latter reason, coupled importantly in my view, with our ability to deliver an ex tempore judgment, can be the only basis for proceeding with this appeal. If, for example, we had to reserve our decision, then that, together with the circumstances that I have outlined, may well have rendered the appeal futile.
That said, as to the result of the appeal, I agree with the Chief Justice that the appeal should be dismissed and I agree with her Honour’s reasons for that outcome. This case highlights that it is a mistake to proceed on the basis that once family violence is established, the result will automatically follow that there will be no time spent between the child or children the subject of the proceedings and the perpetrator of the violence. As the Chief Justice has explained, that is not what is required by the Family Law Act 1975 (Cth), even with the recent amendments.
MURPHY J
I agree in the orders proposed by the Chief Justice and I respectfully agree with her Honour’s reasons. I also respectfully agree with the reasons of Strickland J. I wish to add comment on only one further matter.
It is important to understand that the proceedings before Austin J had a number of important contextual elements.
First, the proceedings were in respect of an application for interim relief, with all of the restrictions inherent in a hearing of that type that have been well canvassed in decisions of this Court. Secondly, the application was made some nine months after a contested trial, during which allegations of the type now raised before his Honour were also raised and, as his Honour indicated during the course of the hearing, comprehensively dealt with.
Thirdly and in addition to the matters raised by the Chief Justice relating to what was said by Austin J at [22] and [25] of his Honour’s reasons, his Honour was, as the transcript reveals, plainly alive to the context in which the current allegation ought be seen:
[SOLICITOR]: Your Honour is aware that there is a significant history of family violence alleged by the mother in this case.
HIS HONOUR: I didn’t find much of that had been established, did I?
[SOLICITOR]: No. In your judgment you did not, your Honour, but it’s the mother – the mother has alleged that your Honour hasn’t found that, but despite that the mother maintains that it’s ongoing, and that’s evident in the assault that occurred on her [in] September 2011.
(transcript 12 December 2011, page 9, lines 12 – 25)
His Honour then said, importantly as it respectfully seems to me:
Well, we’ve got to look at it in context; the mother made allegations of physical violence against the father that I didn’t find established at the time of the final hearing, and now on the face of it there’s evidence uncontested of a serious physical assault on one incident …
The solicitor responded:
Yes, your Honour.
(transcript 12 December 2011, page 9, lines 22 – 27)
His Honour then said, again importantly as it respectfully seems to me:
That’s the context I’ve got to view it in, isn’t it? I can’t assume or pretend or pay lip service to allegations that predated the final orders in March that I didn’t find established. Do you accept that?
(transcript 12 December 2011, page 9, lines 29 – 31)
The solicitor indicated that she did, in fact, accept that.
Importantly, then, his Honour was plainly alive to the fact that any risk to the child resulting from what his Honour plainly regarded as a serious incident of violence was met, at least in part, by the fact that there was an apprehended violence order extant at the time of the hearing, and that compliance with that apprehended violence order had been made a condition of the bond imposed as the sentence upon the father in the criminal conviction for the assault to which his Honour made reference.
Each and all of those matters are important in emphasising that his Honour understood two things: first, the seriousness with which this Court properly regards violence and, secondly, as both the Chief Justice and Strickland J have said, violence is but one of the factors that had to be weighed by his Honour in arriving at a decision in the best interests of this young child within the context to which I have earlier referred.
With those additional reasons, then, I respectfully agree with the orders proposed by the Chief Justice.
BRYANT CJ
The formal order that the Court will make is that the mother’s appeal, filed
22 December 2011, be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 28 June 2012.
Associate:
Date: 28 June 2012
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