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).
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- [2021] FedCFamC1A 97
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CaseChat Overview and Summary
In the matter of Bobal & Bobal, the father appealed against the parenting orders made by the Family Court, which determined that the child should live primarily with the mother and that the father should have substantial and significant time with the child. The mother opposed the appeal, which was ultimately dismissed by the court with costs awarded to the mother. The case involved complex issues surrounding the child's primary residence and the allocation of parental responsibility, with both parties asserting their desire to be the primary caregiver and share parental responsibility.
The legal issues at the heart of this appeal centered on whether the primary judge made any errors in the application of relevant sections of the Family Law Act, particularly sections 60CC and 61DA, and if there was a miscarriage of discretion under Part VII of the Act. The father argued that the primary judge erred in her factual findings, specifically regarding the mother's allegations of family violence and the father's alleged attempts to alienate the child from him. Another issue was whether the primary judge appropriately considered and applied the expert evidence provided by the Family Consultant.
The court thoroughly examined the evidence and found no material error in the primary judge's factual findings. The court held that the primary judge had indeed considered the Family Consultant's evidence and appropriately integrated it into her decision-making process. The court dismissed the father's appeal on all grounds, confirming the orders made by the primary judge. These orders included sole parental responsibility for the child to remain with the mother, with the father having substantial and significant time with the child as initially ordered.
In conclusion, the court's decision to dismiss the appeal and award costs to the mother reinforces the importance of considering all relevant evidence and the expertise of family consultants in making parenting orders. The court's findings highlight the significance of substantiated allegations of family violence and the need for appropriate measures to protect the child's best interests.
The legal issues at the heart of this appeal centered on whether the primary judge made any errors in the application of relevant sections of the Family Law Act, particularly sections 60CC and 61DA, and if there was a miscarriage of discretion under Part VII of the Act. The father argued that the primary judge erred in her factual findings, specifically regarding the mother's allegations of family violence and the father's alleged attempts to alienate the child from him. Another issue was whether the primary judge appropriately considered and applied the expert evidence provided by the Family Consultant.
The court thoroughly examined the evidence and found no material error in the primary judge's factual findings. The court held that the primary judge had indeed considered the Family Consultant's evidence and appropriately integrated it into her decision-making process. The court dismissed the father's appeal on all grounds, confirming the orders made by the primary judge. These orders included sole parental responsibility for the child to remain with the mother, with the father having substantial and significant time with the child as initially ordered.
In conclusion, the court's decision to dismiss the appeal and award costs to the mother reinforces the importance of considering all relevant evidence and the expertise of family consultants in making parenting orders. The court's findings highlight the significance of substantiated allegations of family violence and the need for appropriate measures to protect the child's best interests.
Orders
Orders of the court
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Background
Background to the litigation
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
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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