Bruce & Bruce (No 2)
[2023] FedCFamC1A 226
•15 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bruce & Bruce (No 2) [2023] FedCFamC1A 226
Appeal from: Bruce & Bruce (No 2) [2023] FedCFamC1F 1012 Appeal number: NAA 327 of 2023 File number: NCC 4120 of 2020 Judgment of: ALDRIDGE, REES & BRASCH JJ Date of judgment: 15 December 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from refusal of stay of parenting orders pending appeal – Where parenting orders removed the children from the mother and placed them in the father’s care – Where a number of the grounds of appeal have no merit – Found the primary judge did not err by considering the parenting decision correct until set aside on appeal – No error in failing to accept the mother’s contentions as to violence and sexual abuse – Further evidence admitted but deemed unlikely to have a significant outcome at the parenting appeal and not accorded significant weight – Lack of compelling evidence mandating the return of the children to the mother’s care – No error identified in the primary judge’s refusal of the stay – Appeal dismissed. Legislation: Criminal Code Act 1995 (Cth) s 273B.4
Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bruce & Bruce [2023] FedCFamC1F 936
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Newett & Newett [2023] HCASL 186
Newett & Newett (No 9) [2023] FedCFamC1A 23
Number of paragraphs: 70 Date of hearing: 12 December 2023 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person The Independent Children's Lawyer: Legal Aid NSW Newcastle Family Law (did not participate, submitting notice filed) ORDERS
NAA 327 of 2023
NCC 4120 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BRUCE
Appellant
AND: MR BRUCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, REES & BRASCH JJ
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.The group chat message dated November 2023 at Annexure “[MB]-1” of the mother’s affidavit filed 22 November 2023 is accepted as further evidence.
2.The applications to admit further evidence are otherwise dismissed.
3.The appeal is dismissed.
4.Any party seeking an order as to costs is to file and serve, within 28 days, written submissions not exceeding five pages setting out the basis for such costs, along with relevant invoices. Any response to those submissions is to be filed and served within 28 days of the date of service and is not to exceed five pages.
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 Bruce & Bruce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, REES & BRASCH JJ:
INTRODUCTION
This is an appeal against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 24 November 2023 by Ms Bruce (“the mother”). The orders dismissed the mother’s application for a stay of parenting orders made by the primary judge on 3 November 2023 pending determination of an appeal against those orders. The parties have two children, X, born in 2010, and Y, born in 2013 (“the children”).
The orders of 3 November 2023 required the children to live with Mr Bruce (“the father”), who was to have sole parental responsibility for them. There was an embargo on the mother spending any time at all with the children or contacting them in any way for a period of two months. Thereafter there was to be a staged regime of increasing time, ultimately leading to the children spending every second weekend with the mother during school terms and block time in school holidays.
PARENTING PROCEEDINGS
In order to understand the appeal in relation to the refusal of stay application, it is necessary to understand the nature of the primary proceedings and the reasons for the orders that were made.
At the time of the hearing before the primary judge, the children were living with the mother. Her case was that the father posed an unacceptable risk of harm to the children. The children were withheld from the father in August 2021 for that reason. In November 2021 interim consent orders were made for the children to spend substantial time with the father supervised by the paternal grandmother during overnight stays. These orders were replaced by Cleary J on 2 February 2022, providing for the children to spend professionally supervised time with the father. Despite these orders, the children had not spent any time with the father since January 2023.
The mother contended the children had been hit in the face, whipped with a belt and hit across the back by the father. There is a particular allegation of assault on the younger child in 2021, which led to the New South Wales Police issuing a provisional apprehended domestic violence order against the father to protect both children. A final apprehended domestic violence order was made with the father’s consent, without admission of any misconduct, for a period of six months ending in early 2023. The order however did not prohibit the children from spending time or communicating with the father.
In addition, the mother alleged that X is at risk of sexual harm from the father. According to the primary judge, the allegation of that risk that was made to the single expert psychologist in June 2023, was that the paternal family contained “a convicted paedophile” (at [57] of Bruce & Bruce [2023] FedCFamC1F 936 (“the parenting reasons”), quoting the Single Expert Report dated 31 July 2023, paragraph 36).
At the hearing the complaint was different. First, the mother said that she had suspicions as to the father’s propensity to sexual assault because she had seen him having an erection when nursing X as an infant, X had experienced urinary tract infections and vulval rashes when staying with the father and her belief in the father’s sex addiction. The mother said there was a conversation with the father about X developing “breast buds” during which he said he had touched them. The mother also asserted that she had exchanged emails with the father in which the father had admitted he had touched X’s breasts. The messages were tendered and his Honour found that there was no such admission (at [59] of the parenting reasons).
It is important to note that the primary judge recorded the mother conceding that X herself had never expressly complained of sexual abuse (at [58] of the parenting reasons) even though she had close relationships with therapists that she had been seeing for some time.
This led his Honour to conclude in the parenting reasons:
60.No documents seen by the single expert, or adduced in evidence at trial, reveal any concern expressed, let alone frank allegation made, of sexual abuse against the father by the elder child. The asserted risk of harm hinges entirely upon the mother’s evidence of statements made to her by the elder child, which are equivocal at best. The single expert considered it noteworthy that the elder child has made no form of sexual complaint against the father even though she has “good and trusting” relationships with her psychologists.
(Footnotes omitted)
The mother also made allegations of family abuse, both physical and psychological. For reasons given at [67]–[78] of the parenting reasons, his Honour was not satisfied that the mother’s evidence established her allegations and the father was found not to pose a risk of harm to the children.
As to the risk the mother posed to the children, in the parenting reasons his Honour said:
89.The single expert concluded the mother lacks insight and is attempting to negatively influence the children’s relationships with the father. However, it hardly matters whether it is intentional or inadvertent. If it is intentional, the mother gave no indication of her contrition for it or of her commitment to desist. If it is inadvertent, she is likely not conscious of the destructive dynamic and is powerless to stop it.
90.The elder child is at risk of developing a psychological disorder if she remains living with the mother. The younger child is likely to have his relationship with the father entirely severed if he remains living with the mother.
…
92.I am satisfied the evidence demonstrates the children have sustained emotional harm, properly described as “serious psychological harm”, by reason of their subjection and exposure to the mother’s emotionally abusive behaviour and, further, they are at risk of suffering more harm of that type if they remain living with her. The children require protection from such harm. That can only be achieved by changing the children’s residence.
(Footnotes omitted)
The primary judge went on to record that the children had been assessed as suffering from psychological distress and anxiety.
In April 2021 X made suicidal threats following a fight at school. At the second interview with the single expert in December 2022, X was, according to the primary judge, “ambivalent about spending time with the father”, adding “she would like short visits with the father if she felt safe” (at [99] of the parenting reasons). At the third interview in June 2023 she was “highly anxious” (Single Expert Report dated 31 July 2023, paragraph 98) and professed feeling scared about being around the father for which she could give no rational explanation, saying nothing bad had happened at the supervised visits. X initially said she did not care if she had no relationship with the father, but then later said she would like to see him on weekends (at [99]–[101] of the parenting reasons).
Y was resistant to seeing the father but said he would be happy to see the father on conditions (at [103]–[104] of the parenting reasons). However, by the third interview he was also highly anxious and expressed hatred for the father, even though he had not seen him for some time.
For the reasons given at [107] of the parenting reasons, the primary judge determined that no probative weight should be given to the views of the children, particularly those that were critical of the father. He noted in that regard, that during cross-examination the mother conceded that X periodically told her she wanted to see the father (at [108] of the parenting reasons).
After consideration of the other s 60CC factors of the Family Law Act 1975 (Cth) (“the Act”), the primary judge determined that the orders identified earlier should be made.
In order to give effect to the orders changing residence, the primary judge ordered the mother to bring the children to the court registry on the day judgment was being delivered. The orders that were made required her to leave without contacting them further. It follows that the children have been in the care of the father since 3 November 2023.
The mother’s Notice of Appeal from these orders filed 3 November 2023 is, unfortunately, not illuminating. The grounds are:
1. Error of Law
2. Error of Fact
3. Misfeasance of Public Office with excess of Jurisdiction
4. Malfeasance of Public Office with deliberate excess of Jurisdiction
5. Constructive failure to exercise jurisdiction
6. Apprehended bias
7. Actual bias
8. Prejudicial determination of matter
9. Unreasonable interference in cross examination at Trial
10. Criminal breach of s273B.4 Criminal Code Act 1995 (Cth)
11. Judicial Corruption
12. Improper exercise of discretion
(As per the original)
Some idea of the content of these grounds can be gleaned from the matters relied upon to seek leave (noting leave is not actually required) which are:
1.The Trial Judge committed a criminal breach of s273B.4 Criminal Code 1995 (Cth) by making Orders under his Authority for a child of the proceedings to live with a person who has been determined on a balance of probabilities by a qualified specialist Government Authority to have committed a sexual crime against the Child.
2.The Trial Judge committed a breach of s60B, s60CA, s60CG, s60CC(2A) and s60DA(2) and (3), Family Law Act 1975 (Cth) by making Orders under his Authority for a child of the proceedings to live with a person who has been determined on a balance of probabilities by a qualified specialist Government Authority to have committed a physical assault crime against the Child, and to have ignored a current Domestic Violence Order where the Father by accepting the ADVO without a Trial including the Children on those Orders, has admitted to being a risk to the Mother and Children.
3.The Trial Judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion, failing to apply s42 Family Law Act and s67 Federal Circuit and Family Court of Australia Act 2021 (Cth)- by failing to apply s60CG Family Law Act 1975 (Cth) by making Orders under his Authority for a child of the proceedings to live with a person who has been determined on a balance of probabilities by a qualified specialist Government Authority to have committed a sexual assault crime against the Appellant. Such is an act of torture pursuant to s274 Criminal Code Act 1995 (Cth) and Commissioner of Metropolitan Police vs DSD and Anor [2018] UKSC 11. The Trial Judge was required to consider Russell v Close to prevent further anxiety of the Mother by having her children placed at risk of harm by applying s61DA(2) No Contact Orders for the Father, and same for the Children who have been determined to have been abused by the Father.
4.The Trial Judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion by ignoring a current in force Domestic Violence Order where the Father by accepting the ADVO without a Trial including the Children on those Orders, has admitted to being a risk to the Mother and Children, hence wrongly applied the law in respect of s60CC(2A) and (2)(b) Family Law Act 1975 (Cth).
5.The Trial Judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion to remove the Children from the Appellant Mother's care in entirety where he stated at Trial he has “no mental health concerns” of the Appellant Mother and it is not being considered.
6.The trial judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion to omit critical Child Related evidence required to determine the safety of the Children in the Respondent Father’s supervised or unsupervised care. In doing so he failed to exercise s69ZN Principles for Child Related Proceedings, which were mandatorily required to be followed pursuant to s67 Federal Circuit and Family Court of Australia Act 2021 (Cth).
7.The Trial Judge committed misfeasance of public office, by forming a prejudicial determination of the matter prior to full cross examination and evidence being presented to the Court. He demonstrated this by stating on every day of the proceeding's words to the effect of “Are you really going to push that Ms. [Bruce]? It will make no difference to my decision.” and “I see no evidence before me that the Father is a risk” “there is nothing before me to provide any evidence of the father committing any of the alleged domestic and family violence or sexual abuse or assault allegations” where such evidence was either not yet tested under cross examination or was omitted by the Trial Judge from being entered into evidence at Trial for cross examination.
8.The Trial Judge potentially committed an act of Judicial Corruption, where the Respondent Father, Respondent's Solicitor, the ICL in this matter have all attended [City G] Courthouse on Friday the day after Trial, with the Respondent's lawyer carrying a black briefcase. None of those parties were in attendance at the Public area of the Courthouse on Level 1 during their attendance. The Judge is likely on the balance of probabilities to have been included in that covert conference to make Orders in favour of the Respondent Father. This is further supported by precedent in Charisteas v Charisteas where a Judge may not meet with litigants or representatives during deliberations of judgment.
9.The Trial Judge committed an act of “Apprehended and/or Actual Bias against Mothers in proceedings” and has persuaded and/or threatened Legal Professionals to make consent orders or write a Minute of Orders that facilitates time with the Father regardless of the Children and Mother's safety in proximity of the Father, as confirmed in writing by the Appellant's solicitor, …in her withdrawal emails.
10.The Trial Judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion in failing to adjourn proceedings and apply s102NA Family Law Act 1975 (Cth), forcing a Victim of Family Violence to cross examine her own abuser.
11.The Trial Judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion by unreasonably interfering in the cross examination by the Appellant of the Parties, and in the answering of questions by Witnesses in proceedings.
12.The Trial Judge committed an error of law, and a failure to exercise jurisdiction by improperly exercising discretion by harassing the Appellant in line with precedent rulings in Adacot v Sowle.
(As per the original)
STAY APPLICATION
His Honour refused the stay application principally because the children were in the father’s care and a stay order would require them to be returned to live with the mother. If the appeal failed, the children would then have to again return to live with the father. The primary judge was of the view that such disruption was not in the children’s best interests. This was particularly so because a judgment is presumed to be correct until error is found by an appeals court. Thus, weight must be given to the findings of unacceptable risk of harm in the mother’s care. There was no evidence to suggest that the children’s current circumstances were unsatisfactory or that the children were not content in the father’s care (at [31]).
The mother sought to adduce evidence in the appeal of a group chat message sent by X in November 2023. The primary judge took it into account but gave it little weight, saying that it was a matter for the appeal against the parenting orders.
The law to be applied on a stay application is well settled. A judgment is presumed to be correct until error is found by an appellate court (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627). A stay will be favourably considered where “there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed” (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 223).
A relevant consideration in a stay application is whether there is a substantial prospect that the appeal will succeed and where the balance of convenience lies (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681).
In addition to these considerations, in parenting cases the following are relevant, as identified by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge”) at [18]:
…
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
We shall deal first with the application in relation to the stay, without regard to the group chat message, and then consider what effect, if any, it has on the outcome.
THE APPEAL
Without further evidence
The parenting appeal is in the very early days of preparation and it is more than likely that the grounds of appeal will be amended so that the asserted errors are identified with precision. However, as it stands, it is the basis of the appeal and the prospects of success of the appeal will have to be viewed in its light.
The appeal is from the exercise of a discretion so the following principles set out in House v The King (1936) 55 CLR 499 (“House”) at 504–505 apply to the determination of the appeal:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
Some of the grounds can be put to one side with ease.
Grounds 3 and 4 which deal with “misfeasance of public office” and “malfeasance of public office” seem misplaced. The first is an intentional tort which, if established, gives rise to an award of damages. A judge of the Federal Circuit and Family Court of Australia (Division 1), as a member of a superior court, has statutory immunity from such suits if, indeed, the tort extends to judges. We do not understand what is added by the reference to malfeasance.
More importantly, the relevance of such matters on an appeal can only be the underlying conduct which is said to have vitiated the proper hearing of the matter. Those matters have not been identified.
Ground 5 asserts a constructive failure to exercise jurisdiction. Again, that is difficult to understand as the primary judge made orders that he was empowered to make relying, at least apparently, on the relevant provisions of the Act. He may have erred in doing so but that is not a failure to exercise the jurisdiction.
As these three grounds presently stand, they are unlikely to have any prospect of success whatsoever.
The mother contends that the primary judge contravened s 273B.4 of the Criminal Code Act (1995) (Cth) (Ground 10). That section is breached where children are under a person’s care, supervision or authority, in the defendant’s capacity as a Commonwealth Officer, and where that person does not remove a child from a “substantial risk that a person (the potential offender) will engage in conduct in relation to the child”.
In Newett & Newett(No 9) [2023] FedCFamC1A 23, the Full Court held that that section did not apply to a judge hearing a parenting case (at [43(c)]) because the children could not be said to be in the judge’s care. An application for an extension of time to which to seek special leave from that decision was refused by the High Court on the grounds that the “appeal … would enjoy no prospects of success” (Newett & Newett [2023] HCASL 186 at [2]).
There is no material that supports the extraordinary allegation of judicial corruption. The mother asserted that the father, his lawyer, the Independent Children’s Lawyer (“the ICL”) and a member of his firm attended the court on the day after the hearing but could not find them when she arrived and searched the building. She did, however, see the ICL and his employee leave the building later in the day. Thus, she contended there was an unauthorised meeting between the above people which creates the suspicion that they met the judge. We cannot see how such a suspicion could arise let alone give rise to the extraordinary allegation of corruption. The allegation is pursued notwithstanding the primary judge emphatically denying in his reasons that there was such a meeting.
It is difficult to discern from the reasons of the primary judge, any error of law. His Honour unremarkably refers to well-established authorities and the relevant provision of the Act.
In her oral submissions, the mother identified the errors of fact and law as being the primary judge making it clear that there was no evidence before him that violence had occurred and by undervaluing the risk of the possibility or probability that violence or sexual assault had occurred. The mother carefully took us through the evidence that she said established these propositions. Whether that evidence demonstrates the error asserted by the mother will be a matter for the Court hearing the parenting appeal. We proceed simply on the basis that any error appears to us to be far less obvious than the mother sees it.
The mother identified the apprehended bias, actual bias and prejudicial determination in the matter as being the manner in which the primary judge conducted the hearings, including the brisk manner in which it was said the stay application was heard, which was said to involve frequent interruptions which prevented the mother from finishing sentences. She also identified the approach to the assessment of risk. Whilst it is true that the weight of the contentions can only be determined by looking at the transcript, which is not yet available, the general description of the basis of the bias allegations provided by the mother does not engender confidence that the mother will be successful on these matters in the parenting appeal.
As far as the present appeal is concerned, we are not satisfied, albeit on the limited material available, that there is any merit in these grounds.
This leaves error of fact and improper exercise of discretion remaining. We take the latter to be a contention that the decision of the primary judge is unreasonable or plainly wrong, as those words are used in House.
The errors of fact were identified as being, essentially, a failure to accept her contentions as to violence and sexual abuse. It is not an error of law for a primary judge to prefer one set of facts over another. That after all is the quintessential role of a judge. It is for the judge to place such weight as he or she thinks fit on particular pieces of evidence and documents.
Many of the documents relied upon by the mother were simply records of complaints that the mother herself has made, or the mother reciting complaints that the children had allegedly made. That is not particularly probative evidence.
It is difficult dealing with the merits of a proposed appeal when not all of the material that an appeals court will consider is to hand. We do not have before us all of the evidence that was before the primary judge or the transcript. This makes the assessment of the prospects of success of the appeal very difficult. However, on the material that is available, the appeal cannot be described as having strong prospects of success. Little more can be said.
The primary judge did not err by not placing significant weight on the prospects of success of the appeal and by relying on the presumption that the parenting decision was correct until set aside on appeal.
Further evidence
The mother relied strongly on the proposed further evidence. The only new material is a record of a group chat involving X. The contention is that it establishes that X has been sexually abused by the father so that it is highly likely, if not certain, that the Court hearing the parenting appeal will set the orders aside and return the care of the children to the mother, thereby justifying an immediate stay.
The evidence is that the mother assisted her to create a ‘chat group’ in order to be able to chat to her friends. It is apparent from the face of the reprint of the chat that the parents of most of the other children, if not all, are also members of the ‘chat group’ and they can read all of the messages.
In early November 2023, at 10.51 pm, the night before the final reasons were to be delivered, X sent this message to her friends:
Hey guys,
What I’m about to talk about is serious.. I’ll just get to the point. My dad has been given custody of me and my brother… This will be my last time messaging you guys but I have some good news! Part of my dad getting me and brother is that we are finishing the year at [School H] but I don’t know what happens from then onward…From tomorrow I will be living with my dad who is severely strict and is abusive.. I am not allowed any devices there so this is my last message. I love all of you guys [emoji] All of you are amazing friends [heart emojis] I’m not sure if I’m going to be safe but I want you to know that I won’t stop fighting because I know how it feels to hit rock bottom but some times no one believes me and says that I make it up… I know this is really random but I want you to know EVERYTHING! Because it’s not fair if I don’t tell you and leave you confused. A few years ago I was severely suicidal and left my teacher a death note.. At that time I was cutting myself and tried to kill myself several times… There have been the odd occasion where I do get those feelings again but I never want to go there again… I’m year 4 I used to hide my bruises with concealer so no one would know and you know what?! The entirety of my dad’s family knew what he was doing and DID NOTHING TO SAVE AN INNOCENT CHILDS LIFE! I have been sexually abused multiple times by him, emotionally abused, physically abused and mentally abused… I have depression, PTSD, anxiety, trust issues, an ED and suicidal thoughts.. All of these because of my dad.. I have been struggling really bad with panic attacks latel because of everything as well. I am so sorry for bombarding u guys with all this but u deserve to know. Out of all the friends I’ve had at my 3 schools, you guys have been the best [emoji] I gtg now but I hope to see you on Monday and btw plz don’t tell anyone about this, it is very private and I’m trusting you guys with so much! Love you bye!
…
I’m also not coming tmrw because I’m going to court because the decision is being made.
…
I already know who it is tho and I’m so sorry.
…
It’s my dad…
(Emphasis added)
(Annexure “MB-1” to the mother’s affidavit filed 22 November 2023, p.15–21)
For this evidence to be considered by the Court hearing the parenting appeal, it would need to be admitted under s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The primary basis for admitting further evidence in an appeal, is to identify errors on the part of the primary judge. The Court is more likely to admit further evidence which is not in dispute, as oppose to that which is controversial. Further, the Court needs to be satisfied that on a new trial the further evidence would produce a different result (CDJ v VAJ (1998) 197 CLR 172 at [4] and [111]). Justices McHugh, Gummow and Callinan added:
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day-to-day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
There may be some difficulty in the proposed evidence satisfying those standards.
There was but one instance of alleged sexual abuse at the trial which was the touching of the elder child’s breasts. That allegation was rejected by his Honour and there appears to be no appeal against that finding.
There were no allegations of multiple occasions of sexual assault and the nature of the assault, when it might have occurred, is simply unknown.
X has been seeing a general practitioner for some time. His notes of April 2022 record the child as having said:
She has had had her father intrude on her in the bathroom and coming naked into her room. He appears to be preoccupied with her sexual maturity and when for instance her periods were going to start.
(Annexure “MB-2” to the mother’s affidavit filed 22 November 2023, p.44)
It is to be noted here that the elder child had been in the care of both a general practitioner and a psychologist. They have recorded a number of complaints by her against her father, none of which was of sexual abuse.
The general practitioner’s records show that there were three occasions when, after being in the father’s care, X presented with what appeared to be a urinary tract infection and on two of these, X also had a reddened and itchy vulva. Whilst X did not suggest that these were caused by an act of the father, the mother regards them as very suspicious.
In May 2022 the mother told New South Wales Department of Communities and Justice that the eldest child had told her that she “felt [the father’s] penis on her leg and he was naked”, one night when she got into bed with him after having a nightmare. There is no evidence, it appears, from X to that effect.
The father sought to rely on an affidavit from the maternal grandmother which backtracked significantly from the evidence she gave at the hearing. It further suggests that the mother, directly or indirectly, wrote the group chat message. If that affidavit is admitted at the parenting appeal it would cast some doubt over the weight to be given to the message.
When seen in the light of these matters the proposed evidence may well not be given the weight the mother seeks to place on it. This, however, will be a matter for the Full Court hearing the appeal, if it decides to admit the evidence.
We are not persuaded that the proposed new evidence is likely to have a significant outcome on the hearing of the parenting appeal.
As recorded earlier, the children are in the care of the father and have been since 3 November 2023. If the orders were stayed, the interim orders made by Cleary J on 2 February 2022 would then operate, so that the children would live with the mother and spend supervised time with the father. The mother has failed to make the children available for that supervised time since January 2023. Accordingly, if the stay is allowed and the children are returned to the mother, it is likely they will not spend any time with the father.
The difficulty that arises then is if the appeal is unsuccessful and the children would then be returned to the care of the father. As has been indicated in Aldridge above, such a course is undesirable and very disruptive for the well-being of the children. Of course, if there was strong and compelling evidence of a risk of harm, such that it mandated the immediate return of the care of the children to the mother, that would be the prime consideration.
We consider that the proposed further evidence of the mother falls well short of that standard.
The appeal is likely to be heard in the last week of February 2024, less than three months away.
These matters were all taken into account by the primary judge when refusing the stay, save that his Honour gave little weight to the proposed further evidence.
The mother’s grounds of appeal are no more illuminating than those for the parenting appeal being:
1. Error of Law
2. Error of Fact
4. Malfeasance of Public Office with deliberate excess of Jurisdiction
6. Apprehended bias
7. Actual bias
8. Prejudicial determination of matter
10. Criminal breach of s273B.4 Criminal Code Act 1995 (Cth)
11. Judicial Corruption
12. Improper exercise of discretion
(As per the original)
The difficulties outlined with these grounds identified in the discussion of the prospects of the parenting appeal apply equally. It only need be added that the mother did not seek the primary judge to recuse himself from the stay application.
No relevant error of fact or law has been identified in his Honour’s reasons for refusing the stay.
It remains to consider whether there has been an improper exercise of discretion which means, in accordance with House, whether, in the light of the evidence before the primary judge and the further evidence, if admitted in this appeal, the outcome can be said to be unreasonable or plainly wrong. This effectively means a consideration of the potential harm caused by a stay and immediate return of the children to the mother, which may only be for a short time (if the parenting appeal is unsuccessful), against what the mother describes as the unacceptable risk of harm demonstrated by the group chat message.
For the reasons given earlier we are not persuaded that the message carries the weight accorded to it by the mother. It follows that no error has been identified in the primary judge’s orders.
The group chat message will be admitted as evidence in this appeal. The appeal, however, will be dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Rees and Brasch. Associate:
Dated: 15 December 2023
2