Bobal & Bobal
[2021] FedCFamC1A 97
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bobal & Bobal [2021] FedCFamC1A 97
Appeal from: Bobal & Bobal [2021] FCCA 1851 Appeal number(s): NAA 9 of 2021 File number(s): BRC 14871 of 2018 Judgment of: AUSTIN J Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – APPEAL – FAMILY VIOLENCE – Parenting orders –Where the father challenges findings made about his perpetration of family violence against the mother, contending that various factual findings were mistaken causing a miscarriage of discretion under Pt VII of the Family Law Act 1975 (Cth) – Where the primary judge’s findings were well open – Where there was no material error of fact – Where the father contended the primary judge failed to consider evidence given by the Family Consultant – Where the primary judge referred to such evidence repeatedly in the reasons for judgment – Adequacy of Reasons – Where the ground of appeal was confined to an asserted insufficiency of reasons given for factual findings expressed – Where the reasons are clear and sufficient to explain the outcome – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 51, 56, 57
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CC, 60CG, 61DA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 3, r 12.17(1)(a)
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Number of paragraphs: 67 Date of hearing: 17 December 2021 Place: Newcastle (via video link) Counsel for the Appellant: Ms Horsley Solicitor for the Appellant: Simonidis Steel Lawyers Counsel for the Respondent: Ms Minnery Solicitor for the Respondent: Stone Group Lawyers ORDERS
NAA 9 of 2021
BRC 14871 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BOBAL
Appellant
AND: MS BOBAL
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $15,000.
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 Bobal & Bobal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This is an appeal by the father from parenting orders made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit Court of Australia (as the Court was then known) on 11 August 2021.
The appeal was opposed by the mother and, for the reasons which follow, the appeal is dismissed with costs.
BACKGROUND
The parties were married in 2013 and their only child was born in 2015. They separated in December 2018, when the mother and child departed the former family home to initially stay in a women’s refuge. The child was then three years of age.
The father commenced proceedings about a week later, seeking a recovery order in respect of the child. At about the same time, the mother applied to the State Magistrates Court to vary the terms of the family violence order earlier made in her favour against the father during their marriage in February 2018. Each party resisted the application made by the other.
The father’s application was not heard until March 2019, at which time interim consent orders were made for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for him to spend time with the father, with the regime increasing rapidly to “equal time” by May 2019.
The mother’s application to vary the family violence order was adjourned for hearing until June 2019 but, at the hearing before the magistrate, the father consented to the variation sought by the mother. The order was therefore extended until 2027 and its terms were expanded.
Contemporaneously with the variation of the family violence order, the mother applied to vary the interim parenting orders made some months before in March 2019. Her application was granted in December 2019, when the child’s time with the father was reduced from seven nights per fortnight to three. Such orders were made largely in accordance with the recommendation of the Family Consultant, who opined in the first family report that the orders formerly made in March 2019 had increased the child’s time with the father too quickly. Those revised orders then applied up to the trial and until the appealed orders were pronounced.
The trial commenced in July 2020 and, spread over four days, ended in December 2020. Judgment was reserved and then delivered in August 2021. The orders essentially provided for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial and significant time with the father (amounting to three nights each alternate weekend, portions of school holidays, and other special occasions).
The two contentious issues at trial were the child’s primary residence and the allocation of parental responsibility for him, which each party wanted. It was uncontroversial that the child should spend substantial and significant time with the non-residential parent and the parties were unable to share parental responsibility.
Two factual issues dominated the dispute: first, the mother’s allegations of family violence against the father and the extent to which the parties’ co-operation was thereby compromised; and secondly, the father’s allegation the mother was unwilling to foster or support the child’s relationship with him. The mother’s allegations were sustained, but the father’s were not.
THE APPEAL
The grounds of appeal were as set out in the Notice of Appeal filed on 8 September 2021, though Ground 4 was abandoned.
Grounds 1, 2, 3, 5 and 6 – the findings of family violence
These five grounds of appeal, in one way or another, challenge the findings made by the primary judge about the father’s perpetration of family violence and the effect those findings then had upon the ultimate exercise of discretion under Pt VII of the Act.
The relevant factual findings were made by the primary judge in these terms:
17.The mother’s allegations of family violence cover 28 pages of her trial affidavit and she relies on affidavits of seven witnesses. The father also makes many allegations and raises many concerns in relation to the mother to support his case that she has not, and will not, support [the child’s] relationship with him moving forward. As mentioned earlier the trial of this matter was heard over four days. I do not intend nor is it necessary in my view to make findings about each and every allegation made by the mother and her witnesses against the father and the father against the mother …
…
24.In relation to the father’s denials of family violence, it is important in deciding this issue to note that it is not in dispute that a domestic violence order was made in favour of the mother prior to separation and varied after separation. The police applied for a protection order naming the mother as the aggrieved on 13 February 2018 after she called DV Connect following an altercation between her and the father…
…
26.After the mother’s telephone call to DV Connect the police attended at their home and removed the father from the home taking him to the police station and then immediately applied on her behalf for a protection order. That order included the two standard terms and was made by consent without admission for five years so that it is not due to expire until 13 February 2023.
…
28.As mentioned in the background of these reasons, after separation on 20 December 2018, the mother filed an application to vary the domestic violence protection order to prohibit the father from contacting her and including [the child] as a named person to the order. That application was listed for a final hearing on 20 June 2019 when an order was made by consent but not made on a without admission basis. That order provides protection for the mother and [the child] until [the child] attains the age of 12 and has eight conditions. It is not due to expire until 8 August 2027 and includes eight others as named persons including the mother’s father and mother, her brother, her cousin’s husband, a friend, an uncle, a former employee.
29.I also note in relation to this issue that whilst the father acknowledges and accepts most of what the mother detailed in her affidavit of the incident between he and the mother on 13 February 2018, he does denies that he strangled her. …
…
31.At paragraph 83 of his trial affidavit he describes apologising to the mother for his actions on the night of 13 February 2018 and that he suggested counselling. Within a short time however on 30 November 2018 the police came to their home for the second time after the mother had made an allegation that he had allegedly gone through her phone. The father explained to police that the mother had told him her phone was not working and that he had provided her with an old phone and taken her phone to be repaired, although after being told that the repairs would cost the same if not more of the value of the phone, he decided it would not be worthwhile having the phone repaired.
…
33.Under cross-examination from [counsel] the father acknowledged that the particulars of the mother’s allegations referred to in her trial affidavit were not new allegations and that they had also been detailed in her application to vary the domestic violence order. He also repeated his belief, as mentioned earlier, that her allegations were litigation-induced, insincere, disingenuous and not genuine. When asked specifically “And you’re saying that you don’t accept for a minute that you’ve perpetrated a single act of domestic violence, aren’t you?” His response was “Yes”. When asked if it was a complete lie, again his response was “Yes”.
34.When asked when he refers in his affidavit to the incident on 13 February 2018 and acknowledges that he pushed the mother and was asked whether that was an act of domestic violence, his response was:
As far as I know the evidence hasn’t been actually tested. … I have to say, essentially, they’re allegations. So it hasn’t been proved yet that there is an act of domestic violence.
35.He then went on again to suggest that until a judge decided that he had committed domestic violence he does not accept that he was ever violent towards the mother.
36.In response to the father’s denials of domestic violence towards the mother, I note that at the hearing for the final protection order on 20 June 2019 that the father informed the magistrate that he had completed a Men’s Behavioural Change course over 16 weeks. This evidence however was not included in his trial affidavit in these proceedings. In that regard I accept the submission made on behalf of the mother that it is open for me to draw an inference from his failure to include that evidence that he did not wish to acknowledge his attendance at that course in circumstances wherein the proceedings before me he denies any act of family violence towards the mother.
37.The father in his trial affidavit other than providing his version of events of the altercation between him and the mother on 13 February 2018 did not respond to many if not most of the specific allegations made by the mother in her trial affidavit. At paragraph 21 through to and including 28 of his affidavit filed 3 June 2020 the father claims that the mother’s allegations of family violence both prior to and after separation were fabrications. …
…
46.I accept as submitted on behalf of the mother that it is concerning taking into account:
(a)the efforts the father argues he has made to assist his communication with the mother and co-parent with her;
(b)in circumstances where the father consented to an eight year protection order with eight conditions including no contact conditions where [the child] and eight other named persons are included in the order;
(c)That the protection order was on an admission basis;
(d)where he admits in his own evidence to pushing the mother,
that the father continues to maintain that he did not perpetrate a single act of domestic violence against the mother but rather argues that she has fabricated evidence against him and stone-walled any attempts at improving communication to convince the court she is unable to co-parent [the child] and does not feel safe communicating with the father.
…
70.It is my view for reasons already explained however that the father did perpetrate acts of domestic violence towards the mother both prior to and after separation and that this has made the mother feel unsafe and impacted on her ability to communicate and co-parent with the father. It is also my view that [the child] is at risk of exposure to family violence particularly if I was to make an order that [the child] live with the father or spend equal time with him. My concern in this regard is not that the father would be violent in any way toward [the child] but that he may be exposed to the father’s violence towards the mother.
…
76.I have already made a finding in relation to family violence in this matter.
77.… I have also found that the mother’s allegations of family violence were not as the father claims false allegations to convince me to make the orders she seeks for [the child] to live with her, but in fact a true reflection of her experience of the father’s violence towards her during the relationship and after separation.
(Bold emphasis added)
The grounds of appeal relevantly contend that:
(a)the recitation of the evidence at [31] was “wrong”, which then infected the findings which followed at [70] and [76] (Ground 5);
(b)the finding at [37] was “wrong” and “not open” (Ground 6); and
(c)the exercise of discretion miscarried and the primary judge made an error of law in the application of ss 60CC and 61DA of the Act because:
(i)the finding at [70] was wrong as it was made “without any basis” (Ground 1) and there was nothing at all to “support the finding” (Ground 3); and
(ii)the finding at [76] was wrong (Ground 2).
The underlying premise of these grounds, therefore, is that various factual findings expressed at [31], [37], [70] and [76] in the reasons for judgment were mistaken, but if that premise is unsustainable then the allied complaint about the miscarriage of discretion must fail.
The finding at [31] is factually correct, as it draws on the father’s admission of apologising to the mother for his conduct, which he confirmed during cross-examination. It was this incident which led to the first family violence order being made against him in February 2018, pursuant to an application brought by the police. The father described his apology to the mother in these terms:
83. … I went in and got on my knees on the floor and apologised to her profusely.
…
233.I have asked forgiveness from [the mother] regarding this incident and I have told her numerous times that I never intended to hurt her. …
(Affidavit of the father, sealed 3 June 2020)
The father’s counsel conceded in the appeal that the apology related to the incident in February 2018. Evidently, the father had no need to apologise to the mother unless he felt remorseful for his behaviour. His sense of remorse must have been because he realised he acted reprehensibly.
The remainder of [31] is devoted to an accurate recitation of the parties’ different versions of the event in February 2018, as were related to the attending police officers, and entails no further factual finding. Ground 5 is therefore rejected.
The finding at [37] is also correct because the father did not respond specifically in his trial affidavit to the mother’s multiple allegations of his conduct amounting to “family violence”. True it is the father’s trial affidavit was filed two days before the mother’s trial affidavit was filed, but that did not deprive him of the opportunity to respond because the mother’s allegations of family violence were not new. She made detailed allegations in statements and affidavits prepared for use in the separate proceedings conducted before the State Magistrates Court, which were concluded in June 2019. Those statements and affidavits, which were annexed to the mother’s trial affidavit, were furnished to the father long before the trial of the proceedings began in July 2020. The mother also discussed the father’s alleged family violence with the Family Consultant, who alluded to the issue in her two reports, also published well before trial.
The father well knew the issue of his alleged perpetration of family violence was pivotal in the proceedings and, aside from giving his version of the frank incident in February 2018 and denying the mother’s need to have again summoned police help in November and December 2018, he just baldly denied committing family violence. The father’s trial affidavit was his chance to give comprehensive evidence-in-chief to refute the many specific historical allegations made against him by the mother. Ground 6 must therefore be rejected.
The reasons expressed at [70] entail several separate findings, namely: the father perpetrated acts of “domestic violence” towards the mother before separation in December 2018; the father perpetrated acts of “domestic violence” towards the mother after separation; the mother felt unsafe by reason of the family violence; the mother’s sense of vulnerability affected her ability to communicate and co-parent with the father; and the child is at risk of exposure to family violence committed by the father towards the mother.
Ground 3 was revealed to be a confined attack upon the single finding that the father perpetrated acts of “domestic violence” towards the mother after their separation in December 2018.
Although the primary judge referred generically to “domestic violence”, which term is not referred to in the Act, it was undoubtedly an intended reference to “family violence”, which is specifically defined (s 4AB). No point was taken in the appeal that, for present purposes, there was any material distinction between the two labels. The statutory definition of “family violence” embraces any “violent, threatening or other” behaviour which “coerces or controls” a family member or “causes the family member to be fearful”, with examples provided to demonstrate the expansive breadth of the concept.
The primary judge found the father’s conduct, including after their separation, amounted to family violence and then utilised that finding when exercising discretion, as various provisions of the Act required (ss 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG(1)).
With regard to the finding about the father’s commission of family violence after separation, he submitted:
25.It is to the finding of after separation in paragraph 70 that this Ground [Ground 3] relates.
…
27.The learned Judge made no findings, whatsoever in the preceding paragraphs to ground a finding that the Appellant had ‘perpetrated domestic violence towards the Mother post separation’. …
28.The closest that the learned Judge comes to referencing events post separation is found at paragraph 20 wherein the learned Judge recites ‘from paragraph 27(a) through to 27(ff) and paragraph 28 she provides evidence of family violence after her making an application to vary the protection order on 20 December 2018 and the final protection order was made on 20 June 2019’.
29.Again that statement are not findings that each and every or even any of the deposition of the Mother are findings of fact made by the learned judge.
30.… The relevant paragraphs referred to things told to the Respondent by other people, attempts to resolve the Protection Order Application, attempts to obtain the Respondent’s belongings, recitation of Orders made by the Court and veiled allegations against the Appellant that he was using social media to send messages about the Respondent.
(Footnotes removed) (As per the original) (Bold emphasis added)
Contrary to the father’s submissions, the mother gave detailed evidence-in-chief about various instances of his behaviour after their separation which, if accepted as being reliable, did indeed fall comfortably within the very broad definition of “family violence” in the Act. The mother did not allege her frank physical assault by the father after, unlike before, their separation. Rather, her case about her inability to deal with the father was principally built upon his alleged coercive and controlling behaviour.
The mother deposed to the father’s conduct directly towards her in December 2018, January 2019, March 2019 and January 2020, which she found intimidating and caused her to be fearful, which evidence was certainly capable of enabling the father’s conduct to be construed as family violence. She was challenged only selectively in cross-examination about the truth or accuracy of some aspects of her evidence concerning the father’s post-separation conduct and her subjective reaction to it.
In the appeal, the father’s counsel conceded there was indeed a sufficient evidentiary basis for the primary judge to have found the father did perpetrate family violence after the parties’ separation, but simply contended for the failure to make such a finding. The submission is rejected. As was open, the primary judge accepted the mother’s evidence as being a “true reflection” of her experience and found the father perpetrated family violence after separation (at [70] and [77]).
As it transpired, the father’s contention about the factual error at [70] of the reasons hinged substantially upon the introductory words of that paragraph, which referred back to preceding paragraphs of the reasons. He asserted the reasons to explain the findings at [70] could not be found in the preceding paragraphs and, further, those findings could only be predicated upon the preceding rather than the following paragraphs. But the submission is rejected as an artifice. The soundness of the findings and the sufficiency of the explanation given for them should be discerned from the entirety of the reasons. To do otherwise would be to wrongly embrace, rather than properly avoid, an unduly pernickety analysis of the reasons (AMS v AIF (1999) 199 CLR 160 at [150]). Here, the content of [70] was buttressed by what was said at[77]. Her Honour expressly found the mother’s evidence was to be preferred.
The abundant additional hearsay evidence the mother gave about what she was told by other family members and friends concerning the father’s behaviour and denigration of her to them was admissible and probative, despite the father’s attempt in the appeal to trivialise it, and, even though aspects of that conduct may not have amounted to family violence of itself, still tended to corroborate the mother’s evidence about her own experience of the father.
After the parties separated in December 2018, the mother applied to the State Magistrates Court to vary the family violence order first made in February 2018. Her variation application was granted by the court in June 2019, after the father affirmed his consent to the order through his counsel, which he explicitly acknowledged in cross-examination before the primary judge in this way:
[COUNSEL FOR THE MOTHER]: You accept that the order made by the Magistrates Court of Queensland on 20 June 2019 was made on an admission basis, don’t you?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: And do you admit that in the order being made, you admitted both that you had been domestically violent and that an order was necessary and desirable to protect my client and [the child], didn’t you?
[THE FATHER]: As for the order, yes.
(Transcript 1 July 2020, p. 73 line 35 to p. 73 line 3)
While the father did not admit the multiple factual allegations made against him in the proceedings before the State Magistrates Court, his admission was of the statutory factors which were elementary to the variation of the family violence order.
In the appeal, the parties’ counsel engaged in debate about the legal effect of the father’s admission under the operative provisions of the Domestic and Family Violence Protection Act 2012 (Qld) (and in particular ss 37(1), 51(1)(b), 51(7), 56 and 57(1)(c) thereof), but there is no need to settle that dispute to decide this ground. At the very least, when ready to prosecute her allegations of “domestic violence”, the father belatedly resiled from his defence of the application and consented to the order, which was then extensively varied as to both duration and conditions. The primary judge was entitled to rely upon those facts when determining whether to accept the mother’s evidence about the father’s family violence and to find such evidence was a true reflection of her experience, both during the relationship and after separation (at [70] and [77]).
Unlike Ground 3, which was confined to the single finding of post-separation family violence, Ground 1 attacked the entirety of the findings expressed at [70], to which end the father submitted:
8.The Reasons of the learned Judge in the preceding paragraphs are respectfully nothing more than a recitation of the cases of each of the parties, and none of the preceding paragraphs make any actual findings as to the allegations made of family violence by the Respondent.
…
10.… Paragraph 70 is a summary paragraph but the requisite findings to ground it had not already been made by the learned Judge by the time she made the finding she did at paragraph 70.
…
13.In this case there are no previous findings made by the learned Judge necessary to ground the finding she makes at paragraph 70 of her Reasons. Her Reasons are entirely inadequate it is submitted.
(As per the original) (Bold emphasis added)
The submissions are rejected. Shortly stated, at the very least, the father admitted pushing the mother and wrenching the child from her clasp during a physical confrontation between them in February 2018 and then, in June 2019, he consented to the family violence order being made against him for the mother’s protection for a period approximating eight years until 2027. Against those facts, and particularly given the father’s admission that the child was emotionally distressed by his direct involvement in the physical tussle in February 2018, the consequent finding that the child was at risk of harm by exposure to family violence committed by the father towards the mother was quite unexceptional. While there was room for argument before the primary judge about the extent of the risk, it could not be contended the evidence foreclosed any finding of risk at all.
The father’s evidence was confounding because, despite his explicit and implicit admissions about some aspects of his conduct, he staunchly maintained his denial at the trial of committing any family violence, which denial tended to eloquently endorse his lack of insight and the mother’s continuing apprehension about him.
The father deposed in his trial affidavit:
28.I do not consider the allegations levelled against me to be genuine. Rather, I believe that the conflict has been created by [the mother] and litigation induced. I believe that a lot of this positioning has to do with our culture and values.
(Emphasis added)
Then, during his cross-examination at trial, the father said:
[COUNSEL FOR THE MOTHER]: Most of my client’s evidence about what she says are the acts of domestic violence are not new to you, because you’ve read it before in the domestic violence proceedings, that’s true, isn’t it?
[THE FATHER]: Yes.
…
[COUNSEL FOR THE MOTHER]: And you’re saying that you don’t accept for a minute that you’ve perpetrated a single act of domestic violence, aren’t you?
[THE FATHER]: Yes.
…
[COUNSEL FOR THE MOTHER]: You say everything that she says about acts of domestic violence is a complete lie?
[THE FATHER]: Means whatever the allegation, yes.
[COUNSEL FOR THE MOTHER]: So where you agree that you pushed her, that wasn’t an act of domestic violence, is that what you’re saying?
[THE FATHER]: As far as I know … evidence has been actually tested. So – so … like of the law, I have to say, essentially, they’re allegations. So it hasn’t been proved yet that there is an act of domestic violence.
[COUNSEL FOR THE MOTHER]: You have admitted to pushing her … in your own affidavit?
[THE FATHER]: We were both pushed each other. She slapped me as well.
…
[COUNSEL FOR THE MOTHER]: … are you seriously saying that until a judge says that what you did was domestic violence, you don’t accept that there was any domestic violence?
[THE FATHER]: Okay. So you are actually …
[COUNSEL FOR THE MOTHER]: No, no. Answer my question, please. Answer my question please?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: Are you seriously saying that until a judge says that what you did was domestic violence, that you did not do any domestic violence to my client?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: You’re denying all wrongdoing at all?
[THE FATHER]: Yes.
(Transcript 1 July 2020 p. 88 lines 20–22, 36–37 and 46, p. 89 lines 1–10 and 22–31)
(Bold emphasis added)
The primary judge therefore had little scope to find the father had developed any insight or that the risk he would commit more family violence was materially diminished, despite the parenting courses and counselling he said he had completed.
In that regard, the primary judge accepted the evidence given by the Family Consultant, saying this in the reasons for judgment:
45.In relation to any insight that the father displayed in interview for the second family report and after attending at various courses including a […] parenting course, a parenting order program and counselling with Ms E, [the Family Consultant] said this at paragraph 7.12 of the second family report:
7.12 While [the father] demonstrated a sound understanding of the theory behind the courses he has undertaken, the afore-mentioned behaviour suggests that he has not necessarily been successful in linking the theory to meaningful insight. [The father] was keen to demonstrate to the writer what a child-focused father he is. Time will tell if this desire translates into a sound ability to respectfully co-parent with [the mother]. I note that a key learning from POP for [the father] was that children have a right to spend time equally with their parents. What he ought to he learnt was that parents have a responsibility to parent in a functional child-focused manner. [the father’s] unwavering emphasis on [the child] spending so-called equal time in detracting from the correct information-[the child] has a right to have an equally loving relationship with both parents. It is hoped that someone can explain this to [the father] in such a manner that he can feel less burdened by his quest and become more focused on more salient matters.
If validly found the father did perpetrate family violence upon the mother (as it was), but that he continued to falsely deny the fact (as he did), then it was perfectly open for the primary judge to find the father’s attitude as a parent was “concerning” (at [46]). Given the finding about the father’s attitude, it was also well open to her Honour to accept the mother’s evidence, partly verified by the evidence of the Family Consultant, of her feeling unsafe and vulnerable in having to deal with the father (at [70]).
The content of [76] was not so much a finding itself, but a statement positively affirming the findings made about family violence at other points in the reasons for judgment. Ground 2 therefore has no work to do beyond Grounds 1 and 3.
The father’s advertence in the grounds of appeal to the misapplication of s 61DA of the Act was misconceived. That provision, subject to various exceptions, imports the presumption that parents should be allocated equal shared parental responsibility for their children. Before the primary judge, the father’s counsel conceded the evidence rendered it impossible to make an order for equal shared parental responsibility, as her Honour recognised in the reasons for judgment (at [79]). It was then inevitable the party designated as the primary residential parent would be allocated parental responsibility. Acceptance of that reality guided the parties’ respective proposals for sole parental responsibility, as summarised in the reasons (at [2]–[3]).
Once accepted that the findings expressed within [70] and [76] were open, there was no material error of fact. There could then be no foundation for maintaining the dual complaints that an alleged error of fact within those paragraphs caused the misapplication of ss 60CC and 61DA of the Act or the broader miscarriage of discretion under Pt VII of the Act. It follows that Grounds 1, 2 and 3 must also be rejected.
Ground 7 – the evidence of the Family Consultant
This ground contended the primary judge failed to consider the evidence given by the Family Consultant with respect to the time the child should spend with the father and gave no reasons why such expert opinion evidence was rejected.
The first contention – that the primary judge “failed to consider” that aspect of the Family Consultant’s evidence – is patently incorrect and can be immediately rejected. Her Honour repeatedly referred in the reasons for judgment to such evidence affecting the contested issues of the child’s primary residence, the time he would spend with the non-residential parent, and the allocation of parental responsibility for him. More specifically, the primary judge noted how the Family Consultant:
(a)at an early point in the proceedings, recommended that the time the child was then spending with the father under the consent orders made in March 2019 should be reduced, which expert advice the primary judge accepted and acted upon when making revised interim orders in December 2019 (at [14]–[15] and [74]);
(b)affirmed that the father minimised and deflected the mother’s allegations of family violence, which would likely impede any improvement in the parental relationship (at [22]–[23]);
(c)considered none of the parental courses attended by the father had improved his insight into the source of the parental acrimony (at [45] and [47]);
(d)confirmed the family violence allegedly suffered by the mother, if substantiated, was significant and would undoubtedly compromise her ability and capacity to co-parent the child with the father (at [21]);
(e)rejected the father’s claims that the mother either had or attempted to alienate the child from him (at [63]);
(f)considered the child was settled in the mother’s primary care (at [74]);
(g)recommended against an “equal time” arrangement (at [74]–[75] and [82]), which neither party sought in any event (at [2]–[3], [77] and [81]);
(h)more recently, considered it was not in the child’s best interests to spend more time with the father than was then occurring (being three nights per fortnight; two in one week and one in the next) until the mother felt safe (at [47]); and
(i)endorsed the parenting orders proposed by the mother (at [83]).
The second contention within this ground – that the Family Consultant’s recommendations were “rejected” – is also false, aside from being inconsistent with the first contention. To be rejected, evidence must first be considered, a point the father’s counsel was impelled to concede during the appeal hearing. In fact, on the contrary, the primary judge actually accepted and acted upon the general tenor of the Family Consultant’s evidence.
This ground was argued on the implied, but false, premise that one small part of the Family Consultant’s evidence was dispositive. In his Summary of Argument, the father recited and relied upon once small portion of the oral evidence given by the Family Consultant during cross-examination, which he (at least inferentially) contended formed the evidentiary construct confining the exercise of discretion and compelling the primary judge to make orders requiring the child to spend more expansive time with him. So construed, this ground of appeal really devolved to a complaint that the primary judge failed to give sufficient weight to one small part of the Family Consultant’s evidence.
Aside from the high hurdle the father must surmount to sustain a complaint about the attribution of inadequate weight to a piece of evidence which he found attractive (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 518 at 519–520), two significant caveats attend his reliance upon that section of the evidence.
First, it was selectively chosen and not genuinely representative of the entirety of the single expert’s evidence. The primary judge’s impression of the Family Consultant’s evidence was expressed in the reasons this way, which summary was not said to be factually mistaken:
74.[The Family Consultant] in her first report was of the view, which I accept, that the March 2019 orders for equal time by May 2019 moved [the child’s] time with his father too far too soon. [The Family Consultant] was clearly also of the view expressed in both her second report and under cross-examination that it is important for [the child] at his age to have a stable environment and that [the child] is settled in the primary care of his mother. It was also her view which I accept that it would be unsettling for [the child] to make an order that [the child] move to his father’s primary care or to live equally between his parents.
Secondly, the concession made by the Family Consultant to the father’s counsel in the trial about the child being able to cope with spending more time with the father was couched only as a potentiality, not as a probability, and certainly not as a recommendation. The Family Consultant conceded the child might be able to cope with spending up to five days per fortnight with the father, but she prefaced that by saying she thought that was too much time and followed it by saying the child was doing quite well under the current orders, which entailed him spending only three nights per fortnight with the father. The Family Consultant’s quite reasonable acknowledgement of mere potentialities did not undercut the force of, nor foreclose the primary judge’s reliance upon, her firm contrary opinion.
The father’s contention fell well short of establishing that the primary judge’s exercise of discretion miscarried. Ground 7 fails.
Ground 8 – sufficiency of reasons
This ground merely contended the reasons for judgment were “inadequate and insufficient”, however no submission was made to elaborate the assertion in the father’s Summary of Argument.
The mother presumed that meant the ground was abandoned, which the father’s counsel confirmed as the appeal hearing began, but the father later sought leave to revive the ground. After much debate, as I understood the submissions, the ground was confined to the asserted insufficiency of reasons given for the factual findings expressed at [70] and was therefore an extension of Grounds 1, 2 and 3. On that confined basis, the grant of leave was not opposed.
The primary judge noted how the parties agreed no order could be made for them to equally share parental responsibility for the child (at [79]–[80]), making it a formality for one of them to have exclusive parental responsibility. The primary judge found the child should continue to live primarily with the mother (at [77]), as that would entail no disruption to the existing arrangements and there was no substance to the father’s complaint about the mother alienating the child from him. With the residential dispute resolved, attention then turned to the amount of time the child should spend with the father.
The prospect of the child spending equal time with the father was rejected (at [81]–[82]) and instead the primary judge ordered the child to spend substantial time with the father (being three nights per fortnight, near equal amounts of school holidays, and other special occasions) in accordance with the Family Consultant’s view. The appealed orders represent much the same outcome as the father had proposed for the mother in reverse (at [83]).
As argued orally, the substance of this ground appeared to be that the reasons for judgment did not explain how the findings of family violence made against the father were used to reject an “equal time” arrangement and instead justify the child spending “substantial and significant time” with him, but the father’s asserted puzzlement is dispelled by analysis of the reasons.
As a result of the findings made about family violence, the primary judge accepted the Family Consultant’s evidence to the effect that, before the child could spend any more time with the father than was then occurring, the mother would need to feel safe (at [46]). Her Honour found she did not then feel safe. On the contrary, the mother felt vulnerable and unable to co-parent with the father (at [70]). The significance of the findings about family violence therefore reflected principally in how the father’s conduct had affected the mother’s capacity to interact with him. That being so, the pre-condition the Family Consultant recommended be imposed to any order expanding the child’s time with the father was not fulfilled.
But other factors also affected the decision about the time the child should spend with the father. The primary judge found it was important for the child to have a stable environment in the mother’s primary care (at [74]), the father did not make any alternate proposal about the amount of time the child should spend with him if the child remained living with the mother (at [81]), and the Family Consultant’s evidence supported the mother’s proposal for the amount of time the child should spend with the father (at [83]). The appealed orders reflected the mother’s proposal and the Family Consultant’s advice.
Such reasons are clear and sufficient to explain the outcome, which is all that reasons for judgment need do (Bennett v Bennett (1991) FLC 92-191 at 78,267). Ground 8 fails.
DISPOSITION
The appeal is dismissed.
The mother sought the father’s payment of her costs of the appeal in the sum of $37,914.25 because the appeal was wholly unsuccessful. The father opposed any liability for costs, but in the alternative, cavilled with the sum claimed.
The father’s opposition to the costs order was based entirely upon what was contended to be his parlous financial situation, which he sought to verify by filing a financial statement on 14 December 2021. He deposed to self-employment on modest income, with liabilities which exceed the value of his few assets. However, he admitted borrowing more than $30,000 to fund this appeal, which loans he asserted he must repay.
Unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor (Northern Territory v Sangare (2019) 265 CLR 164 at [27]). The father decided to take a risk in running a speculative appeal, the financial burden of which he cannot easily minimise by claiming the risk he voluntarily took exacerbates his penury. The mother’s financial circumstances, verified by her financial statement filed on December 2021, are really no better than his and she should not bear the cost of defending an unmeritorious appeal.
The father should pay costs because the appeal was wholly unsuccessful and, given neither party enjoys a position of financial superiority over the other, his financial circumstances do not militate against an order in the mother’s favour. That leaves the quantum of the order to be determined.
The mother’s filed schedule may have been costed according to the scale fees prescribed within sch 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), but its quantum bears little resemblance to a reasonable claim, itemised on a party/party basis, for legal work necessarily incurred to defend the appealed orders on the rather narrow grounds advanced.
To avoid the further controversy of a costs assessment, the parties conceded a fixed sum could be prescribed for the costs pursuant to r 12.17(1)(a) of the Rules. The father admitted around $12,000 would be a fair sum for the mother’s party/party costs, but such costs are instead fixed in the sum of $15,000, which sum correlates more readily with the modest complexity of the issues and the time which should have reasonably been devoted to resistance of the appeal.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 22 December 2021
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