Blass & Blass

Case [2022] FedCFamC1A 63

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 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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.

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AGLC
Blass & Blass [2022] FedCFamC1A 63
Case
[2022] FedCFamC1A 63
Decision Date

CaseChat Overview and Summary

The case of Blass & Blass involved an appeal against final orders made by the Federal Circuit Court of Australia, which involved the division of parental responsibilities and living arrangements for the children of the parties. The appellant, Ms Blass, had raised allegations of family violence against the respondent, Mr Blass, and had also alleged problematic and harmful sexual behaviour by one of their children. The primary judge had found in favour of the appellant on the basis of family violence, and ordered that the children live with the appellant while spending time with the respondent. The primary judge also found that the appellant had a history of non-compliance with the previous final orders, which had resulted in her being placed on a bond. The respondent and the Independent Children’s Lawyer sought to reverse the residence order that was made by the primary judge.

The legal issues before the court were whether the primary judge erred in failing to accept the appellant's evidence of problematic harmful sexual behaviour, and whether the primary judge erred in finding that the appellant had a history of non-compliance with the previous final orders. The court found that the primary judge had erred in finding that the appellant had a history of non-compliance with the previous final orders, and that this error was significant enough to warrant a rehearing of the matter. The court held that the primary judge had failed to properly consider the evidence of the appellant, which included a statement by the appellant that she had come to understand the risks associated with failure to comply with the orders, and that she would endeavour to comply in the future. The court also held that the primary judge had failed to properly consider the evidence of the respondent and the ICL, which included evidence that the children's ongoing relationship with the respondent was prejudiced whilst the appellant retained primary care.

The appeal was allowed, and the orders of the primary judge were set aside. The matter was remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge. Costs certificates were granted to all parties in accordance with the Federal Proceedings (Costs) Act 1981 (Cth). The court held that the appellant had succeeded on a question of law, and that it was appropriate to grant costs certificates to all parties in respect of the costs incurred in relation to the appeal and the re-hearing. The court held that the appellant had made the relevant applications, and that the respondent and the ICL were not employees of the Legal Aid Commission. The court held that it would be appropriate for the Attorney-General to authorise payments under the Act to the appellant, the respondent and the ICL in respect of the costs incurred in relation to the appeal and the re-hearing.

Orders

Orders of the court

EAA 87 of 2021

NCC 2831 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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