Blass & Blass
[2022] FedCFamC1A 63
•13 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Blass & Blass [2022] FedCFamC1A 63
Appeal from: Blass & Blass (No 2) [2021] FCCA 1588 Appeal number: EAA 87 of 2021 File number: NCC 2831 of 2015 Judgment of: MCCLELLAND DCJ, GILL & SCHONELL JJ Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – APPEAL – EVIDENCE – Effect of the failure to call a witness – Necessary foundations prior to the reliance upon such failure – Mere failure to accept a witness’s account does not permit conclusion that witness is untruthful – Establishing untruthfulness requires a further determination to be made over and above mere non-acceptance of the witness on the balance of probabilities – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to all parties. Legislation: Evidence Act 1995 (Cth) s 140
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Cases cited: ASIC v Hellicar [2012] 247 CLR 345; [2012] HCA 17
Blatch v Archer (1774) 1 Cowp 63
Boensch v Pascoe [2019] 268 CLR 593; [2019] HCA 49
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Number of paragraphs: 50 Date of hearing: 29 March 2022 Place: Sydney Counsel for the Appellant: Mr Levick Solicitor for the Appellant: Delaney Roberts Family Lawyers Counsel for the Respondent: Mr Rugendyke Counsel for the Independent Children's Lawyer: Mr Bateman Solicitor for the Independent Children's Lawyer: Emalene Gemmell Family Law ORDERS
EAA 87 of 2021
NCC 2831 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BLASS
Appellant
AND: MR BLASS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, GILL & SCHONELL JJ
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court of Australia made on 16 July 2021 be set aside on and as from the date upon which further orders as to the living arrangements of Child X and Child Y (the “children”) are made by the Federal Circuit and Family Court of Australia (Division 2).
3.The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (the “Act”) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the respondent and Independent Children’s Lawyer (“ICL”), a costs certificate pursuant to s 6 of the Act being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.The Court grants to the parties, including the ICL, a costs certificate pursuant to the provisions of s 8 of the Act being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
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 a pseudonym Blass & Blass has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, GILL & SCHONELL JJ:
INTRODUCTION
By her Amended Notice of Appeal filed 26 October 2021, Ms Blass (the “appellant”) appeals from a parenting order made on 16 July 2021 by the primary judge of the Federal Circuit Court (as it then was).
This appeal involves a challenge to a decision made by the primary judge to reverse previous final orders so that whereas the children, child X (then 11 years old) and child Y (then eight years old) had lived with the appellant, spending weekends and holiday time with Mr Blass (the “respondent”) and with the parties holding equally shared parental responsibility, it was determined that child X and child Y would live with the respondent, who would have sole parental responsibility and, after a period of supervised time, would spend weekend and school holiday time with the appellant.
For the reasons which follow, the appeal will be allowed.
BACKGROUND
The parties commenced a relationship in 2007 and married in 2008.
The appellant had two daughters from a previous relationship. She performed the role of primary carer for all the children, including the two born in the marriage between the parties.
In 2015, the parties separated on a final basis and, following contested proceedings before the primary judge, final orders were made on 12 October 2018 providing for equally shared parental responsibility and for the children to live with the appellant and spend weekend and holiday time with the respondent. In reaching that conclusion, the primary judge made findings of family violence against the respondent.
In the hearing subject to this appeal, the primary judge was confronted by further allegations of family violence against the respondent, with assertions by the appellant that child X was behaving abusively toward the appellant and in a sexually aggressive manner toward child Y (which was described as “problematic harmful sexual behaviour”). The primary judge was also faced with a history of serious non-compliance with the previous final orders of 12 October 2018 by the appellant. This non-compliance had resulted in the appellant being placed on a bond, a step that did not stop her continued non-compliance in the lead up to the trial.
The primary judge was also faced with an uncertain position advocated by the appellant. While the appellant had instituted these proceedings on 14 January 2020, then seeking heavy constraints on the time that the children would spend with the respondent, at trial she found herself unable to articulate a position as to the orders that would benefit the children. The appellant, in her trial material and evidence, described behaviour on the part of child X that was abusive of the appellant and sexually aggressive towards child Y. While the appellant had initially attributed this to child X’s time with the respondent, by the trial she had concluded that she had been wrong to lay the blame for such conduct at the respondent’s feet and, further, acknowledged positive aspects of the children’s relationship with him. This left the appellant in the position of being unable to identify what would be in the children’s best interests. She then sought, in general terms, a preservation of the then current status quo, offering through her counsel, but not through her evidence, that she had come to understand the risks associated with failure to comply with the orders, and stated that she would endeavour to comply in the future.
The respondent and the Independent Children’s Lawyer (“ICL”), both sought the reversal of residence that was ordered by the primary judge. This was largely on the basis that the children’s ongoing relationship with the respondent was prejudiced whilst the appellant retained primary care, whereas an ongoing relationship with the appellant was not prejudiced should the children be in his primary care.
Looming large amongst the matters that bore upon the primary judge’s decision were her Honour’s conclusions that she “cannot be satisfied that the [appellant] is likely to ensure that the children spend time with the [respondent] in the future” (at [186]) and, intertwined with that conclusion, that the appellant had been “abusive of the children” in subjecting them to counselling and labelling child X as a perpetrator of “problematic harmful sexual behaviour” (at [197]). Specifically, the primary judge concluded that the appellant had been untruthful in her assertions about child X’s behaviour.
The primary judge observed at [70] of the judgment that the appellant resiled from the notion that the respondent was the cause of child X’s behaviour. It was noted, however, that it remained necessary to consider whether such behaviour had “ever in fact occurred”, no doubt as a result of the respondent’s submission that such allegations were a fabrication, and the ICL’s submission that they were a malicious fabrication.
Ultimately, following careful analysis of the issue, the primary judge concluded that the appellant’s account as to the problematic harmful sexual behaviour was untruthful (at [90]). In reaching this conclusion, the primary judge relied, in part, upon the failure of the appellant to call either the maternal grandmother or her adult daughter Ms E in support of her descriptions of child X’s behaviour (at [71]).
The primary judge also relied upon denials of the behaviours made by child X and child Y to the Joint Child Protection Response Program (“JCPRP”), being a tri-agency program between the New South Wales Police Force, the Department of Communities and Justice and New South Wales Health, and the children’s failure to disclose the occurrence of the behaviours to counsellors. This was despite what the primary judge described as “extensive trying by the counsellors” (at [72]).
Further, in reaching the conclusion of untruthfulness, the primary judge rejected the proposition that a reference in the counselling records that were produced of an acknowledgement by child X on 10 August 2020 to problematic harmful sexual behaviour “validated” the appellant’s assertion (at [88]). In that respect, the primary judge observed that what child X actually said was not recorded or noted, and observed the efforts to extract support for the appellant’s claim and the associated pressure that was placed upon child X. The primary judge further rejected the notion that had been raised by the appellant that the respondent had coached the children, observing that he had been largely excluded from the counselling that the children had been exposed to by the appellant.
THE APPEAL
The grounds of appeal were set out in the appellant’s Amended Notice of Appeal filed 26 October 2021 in the following terms:
1. The Primary Judge erred in fact and law in not accepting the [appellant’s] evidence that problematic harmful sexual behaviour had occurred between the children of the relationship. (Judgment para 88)
2. The Primary Judge erred in fact and law in finding that the [appellant’s] evidence relevant to [child X’s] problematic harmful sexual behaviours was untruthful. (Judgment para 90)
3. The Primary Judge applied incorrect principle in having regard to the failure to call witnesses. (Judgment para 88)
4. The Primary Judge erred in law in her acceptance of the Family Consultant as an expert on matters of child sexual abuse. (Judgment para 81)
(As per the original)
Grounds 1 to 3 were argued together.
Ground 4 was abandoned.
All the grounds were directed to the primary judge’s treatment of the “problematic harmful sexual behaviours” issue. This was extensively dealt with at [66]–[100] of the primary judge’s reasons for judgment.
It may be observed that central to the grounds was the finding that the appellant’s evidence of child X engaging in problematic harmful sexual behaviours was untruthful. This key finding led to the conclusion that the appellant’s behaviour was abusive of child X and supported the rejection of the assertions made by the appellant that she would support the children’s relationship with the respondent and facilitate them spending time with the respondent in accordance with the orders. This finding was key to the primary judge’s conclusion that it was necessary to order the reversal of the children’s arrangements as in their best interest.
THE FAILURE TO CALL WITNESSES
It is convenient to deal with this reasonably discreet issue first.
This issue appears in the judgment at [22], [71] and [88] as follows:
22. It was somewhat odd that the [appellant] called no other witnesses. She alleged that the maternal grandmother had witnessed [child X’s] problematic harmful sexualised behaviour. She said that the maternal grandmother was ill and that was why she had not asked her to give an affidavit but she also did not call her adult daughter [Ms E]. [Ms E] lives with the [appellant] and the children and the [appellant] told authorities who investigated allegations about [child X] engaging in problematic harmful sexualised behaviour that [Ms E] had witnessed some of this behaviour. [Ms E] gave evidence on the [appellant’s] behalf during the first trial and the [appellant] offered no explanation for why she was not called this time.
…
71. The [appellant] alleged that the maternal grandmother and [Ms E] had witnessed some instances of it but they did not give evidence. Of the people who gave evidence at trial the [appellant] was the only person who has ever seen it. The [respondent] has never seen it and nor has the paternal grandmother.
…
88. I do not accept the [appellant's] evidence that the problematic harmful sexual behaviour has occurred. The witnesses who might have corroborated the [appellant’s] version of events were not called and neither child has validated it, and the one alleged disclosure by [child X] referred to by the [appellant's] counsel is not validation of the [appellant's] allegations.
Without being directly stated, it appeared that the primary judge’s reference to a failure to call witnesses by the appellant drew upon the reasoning expressed in cases such as Blatch v Archer (1774) 1 Cowp 63 (“Blatch v Archer”) at [65] and, more particularly, Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”), where a failure to call a witness may be relevant to forming factual conclusions. In Blatch v Archer, Lord Mansfield said:
65.… It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. …
Here, what attracted the primary judge’s attention was the failure of the appellant to call either her mother or her adult daughter, Ms E, in support of her contentions that child X engaged in problematic harmful sexual behaviour.
In ASIC v Hellicar [2012] 247 CLR 345 (“Hellicar”) at [165], the plurality of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ firstly observed, on the issue of the failure to call a witness, that:
Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led… And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
At [167], the plurality then referred to Jones v Dunkel, as an example of the application of such principles, quoting:
…“that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.
(Footnote omitted)
However, as in Hellicar, in this case, the necessary foundation was not established to allow inferences to be drawn favourable to the respondent’s and ICL’s cases and, specifically, the precursors were not available to permit support for the inference that the appellant had fabricated evidence of problematic harmful sexual behaviours.
In particular, it was not open to find either that the maternal grandmother or the adult daughter were able to “put the true complexion on the facts” or that there was “no sufficient explanation” for their absence as referred to in Jones v Dunkel.
That was because the best evidence to support the notion that either the maternal grandmother or the adult daughter might be able to give evidence as to the behaviour was contained in references in the family report to comments purportedly made by the appellant that had been recorded in third-party material, being that the maternal grandmother had observed sexualised conduct by child X upon her cousin, and that the adult daughter had also observed sexualised conduct.
None of these matters were contained as assertions in the appellant’s affidavit material, nor were they raised with the appellant when she gave evidence. She was not questioned as to whether the third party records accurately recorded what she had said, nor as to whether she asserted that her mother and adult daughter had witnessed such events. Before drawing an inference adverse to the appellant on the basis of the failure to call these witnesses, it was necessary that the matter be raised with her. It was not. In this respect, it could not be said that either the maternal grandmother or the adult daughter would be able to speak to the assertions of sexualised conduct.
To the extent that an issue was raised with the appellant regarding the failure to call witnesses, it was not directed to the problematic harmful sexualised behaviour issue. Rather, it was in relation to the appellant not calling evidence from her mother about another matter that she was said to have witnessed. In response to that questioning, the appellant explained that her mother had been ill for six months, in and out of hospital, and too ill to attend court (Transcript 27 May 2021, p.66 lines 27–31). While that explanation was addressed to another aspect of evidence that the maternal grandmother may have been able to support, it also operated as an explanation of the non-calling such as to undermine any Jones v Dunkel type usage in respect of the sexualised conduct issue.
There was therefore no adequate basis to conclude that either the maternal grandmother or the adult daughter would presumably be able to give evidence as to the problematic harmful sexualised behaviour conduct issue.
Accordingly, it was not open to use the failure to call these witnesses as a justification for discounting the cogency of the evidence of the appellant, as appeared to be the case in the judgment at [22] and [88].
FINDING THE APPELLANT UNTRUTHFUL
The primary judge formed a conclusion that the appellant was untruthful about the behaviours of child X. The reasoning process of this significant issue emerges at [90] of the judgment as follows:
I cannot be satisfied on the balance of probabilities that [child X] has engaged in the behaviour described by the [appellant] and I cannot shy away from where that leads, namely, that the [appellant's] evidence about what she observed is untruthful.
The primary judge concluded that the sexualised conduct by child X had not been established on the balance of probabilities. It should be observed that there had been scarce attention paid to this issue in the cross-examination of the appellant. It should also be observed that this conclusion was made partly in reliance on a Jones v Dunkel reasoning that was not available.
However, even on the assumption that the conclusion that the appellant had failed to establish the behaviours was correct, it was the primary judge’s use of that failure that was problematic.
This was a conclusion that was highly significant to the result in this case. Although the primary judge subsequently identified that she was not satisfied that the appellant had been malicious in doing so, the primary judge treated the appellant’s assertion of sexualised conduct as a fabrication, and thereby abusive of the children, particularly in her engagement of the children in counselling for such and in the labelling of child X as having engaged in such conduct.
Such a characterisation of abusive behaviour was well open for the primary judge’s consideration if the appellant had, in fact, fabricated the descriptions of the behaviour. However, the reasoning process for the intermediate conclusion of untruthfulness or fabrication was not available.
The terms of [90] indicate that the intermediate conclusion of the appellant’s untruthfulness was treated as the corollary of her failure to establish the behaviours on the balance of probabilities. It was not.
The grave allegation of untruthfulness and its concomitant finding of abuse of child X as essential aspects of the determination of the case constituted, in accordance with s 140 of the Evidence Act 1995 (Cth), a factual conclusion that required persuasion, itself, on the balance of probabilities. It was not established on the mere failure by the appellant to prove that the behaviours had in fact occurred to that same standard.
While the failure to accept a witness’s evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.
Insofar as the primary judge’s reasoning as to untruthfulness is expressed as the result of the failure to accept the appellant’s evidence on the balance of probabilities, it is a conclusion that cannot stand.
Accordingly, the appellant has demonstrated legal error in respect of this important conclusion reached by the primary judge.
The appeal will be allowed.
FAILURE TO ACCEPT THE APPELLANT’S EVIDENCE OF PROBLEMATIC HARMFUL SEXUAL BEHAVIOUR
Although a further ground was directed to the failure of the primary judge to accept the appellant’s evidence of the problematic harmful sexual behaviour, it is neither necessary nor desirable to form a view on this ground.
It is not necessary to do so given the High Court’s observations of Kiefel CJ, Gageler and Keane JJ in Boensch v Pascoe [2019] 268 CLR 593 at [7]–[8], emphasising the importance of judicial economy in considering whether to deal with grounds that are not dispositive of the appeal. Given the views formed on the other grounds that are sufficient to dispose of the appeal, it is appropriate not to deal with this ground.
It may also be observed that it is not desirable to deal with this ground, given the necessity of remitting the matter for a rehearing that may include the consideration of the same issue, but not necessarily on the same evidence.
COSTS CERTIFICATES
As the appellant has succeeded on a question of law, and as the appellant, respondent and the ICL (who was not an employee of the Legal Aid Commission) have made the relevant applications, costs certificates are granted in accordance with ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
ORDERS FOLLOWING APPEAL
The appellant sought the immediate setting aside of the orders of 16 July 2021 pending the rehearing. The effect of such would be to reverse the living arrangements of the children for the second time in eight months, in circumstances where there remain, on the evidence at trial, good reason to doubt the appellant’s future compliance with orders, even absent the impugned aspects of the judgment.
It is preferable that any interim resolution of the children’s living circumstances pending further final hearing be on the consideration of material that speaks to the then current circumstances of the children. Such was not before this Court and, accordingly, it is appropriate that the issue of the change of arrangements be deferred to when the matter is properly before Division 2 of the Federal Circuit and Family Court of Australia on remittal, with the parties presenting evidence adequate to answer the question of what is in the children’s best interests, at least on an interim basis.
Accordingly, the orders of the primary judge will be set aside from the point at which a judge of Division 2 of the Federal Circuit and Family Court of Australia makes further orders.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Gill & Schonell. Associate:
Dated: 13 May 2022
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