BUCHANAN & MORGAN

[2019] FamCAFC 62

FAMILY COURT OF AUSTRALIA

BUCHANAN & MORGAN [2019] FamCAFC 62

FAMILY LAW – APPEAL – PARENTING – Order for sole parental responsibility made in favour of the father where no party sought such an order – Where the primary judge misstated the father’s final position as to parental responsibility and time – Where the mother rejected the father’s proposals – Where errors unrelated to relief sought on appeal – Abuse of process – Conduct of trial – Appeal against exercise of discretion – Failure to establish that findings sought at trial in relation to matters of which complaint now made – Contentious findings were neither fundamental or obvious – Adequacy of reasons – Errors not material to the outcome – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the mother was able to point to errors of the primary judge – Where the orders concern the welfare of a young child – Where the parties are of modest means – Application for costs dismissed.

Family Law Act 1975 (Cth)

Blanch v Blanch and Crawford (1999) FLC 92-837; [1998] FamCA 1908
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Goode and Goode (2006) FLC 93-286; [2006] FamCAFC 1346
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hearne v Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178
House v The King (1936) 55 CLR 499; [1936] HCA 40
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Water Board v Moutsakis (1988) 180 CLR 491; [1988] HCA 12
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT: Ms Buchanan

RESPONDENT: Mr Morgan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2166 of 2016

APPEAL NUMBER: EA 141 of 2018

DATE DELIVERED: 9 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Alstergren CJ, Strickland & Ryan JJ

HEARING DATE: 9 April 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 5 October 2018

LOWER COURT MNC: [2018] FamCA 798

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Barnett

SOLICITOR FOR THE APPELLANT: Catalyst Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Boyd

SOLICITOR FOR THE RESPONDENT: Richardson Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Submitting Appearance filed

Orders

1. The appeal be dismissed.

2. The respondent’s application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Buchanan & Morgan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 141 of 2018
File Number: NCC 2166 of 2016

Ms Buchanan

Appellant

And

Mr Morgan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

1. By Amended Notice of Appeal filed on 11 December 2018, Ms Buchanan (“the mother”) appeals from final parenting orders made on 5 October 2018 in proceedings between her and Mr Morgan (“the father”).  The orders concern the parties’ son, X (“the child”) who was born in 2014.

2. The orders provide, inter alia, that the father have sole parental responsibility for the child (subject to conditions as to the manner in which those decisions would be taken) and that the child live with him.  At the time of trial, the child lived with the father and had done since August 2016.  The parties had separated some months earlier and without demur from the father, the child remained in the primary care of the mother.  However, in July 2016, the father’s son, who was then 12 years of age, made allegations of sexually inappropriate behaviour and physical abuse against the mother.  That boy, his younger brother and two other boys were interviewed by the Joint Investigative Response Team, following which the Department of Family and Community Services placed the subject child with the father.

3. At the time of trial it was accepted that the mother did not pose a risk to the child, and by agreement between the parties, the child was spending time with her two nights each week.  The orders made by Cleary J increased the child’s time with the mother to five nights each fortnight spread over two periods.  Upon the child starting school, he is to spend five nights each fortnight with the mother during school terms and half of each school holiday period.  Provision is also made for the parties to share nominated special occasions. 

4. The mother appeals from Order 2 (sole parental responsibility), Order 3 (the child live with the father), Order 4 (the child’s time with the mother), Order 5 (which deals with special days) and Order 6 (which provides for changeover arrangements). 

5. It is the mother’s position that these orders should be set aside and this Court make orders in accordance with those sought by her before the primary judge.  Stated broadly, she seeks that she have sole parental responsibility for the child, that the child lives with her and spends time with the father for two periods totalling five nights in each fortnight during school terms and half of each school holiday period.  She proposes slightly different arrangements in relation to Christmas Day, Father’s Day and Mother’s Day, and that the changeover always occur at a public place.  In the event that we are not in a position to re-exercise, the mother seeks that the proceedings be remitted for re-hearing before a judge other than the primary judge where it is understood the same orders would be sought.

6. The father resists the appeal and seeks to maintain the orders.

7. The Independent Children’s Lawyer (“the ICL”) who represented the child’s interests in the court below filed a Submitting Notice in the appeal and has not participated in it.

The grounds of appeal

1. This is an appeal against the exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

2. Turning then to the grounds of appeal.  The mother abandoned Grounds 3 and 4, and in relation to Grounds 1, 5 and 9 they were substantially amended in the summary of argument.   In the event the appeal was presented by reference to topics as follows:

   ·Parental responsibility and the father’s proposals (Grounds 1 and 9 (as amended in the summary of argument));  

   ·Failure to provide sufficient reasons (Grounds 2, 6, 7 and 8); and

   ·Failure to take into account relevant matters (Ground 5 (as amended in the summary of argument)).

Parental responsibility and the father’s proposals (Grounds 1 and 9)

1. Ground 1 challenges the manner in which the primary judge dealt with the father’s proposal that there be an order for equal shared parental responsibility, and her decision to order that the father have sole parental responsibility (as qualified in the order).  By Ground 9 it is argued that the primary judge misstated the orders sought by the father (as to parental responsibility and time) and thus her Honour failed to take into account relevant material.  Or, framed in the negative, that her Honour took into account irrelevant material.

2. Turning to the question of parental responsibility, it is useful at this juncture to set out the order made:

   (2)That the father have sole parental responsibility for the child.

   2.1In the event that any issues arises the father shall:

   2.1.1Advise the mother in writing of the matter which requires a decision and of the proposal of the mother in that regard;

   2.1.2Invite the written response of the mother within a nominated period of time to be reasonable in the circumstances;

   2.1.3Genuinely consider the response of the mother and take her views and proposals, if any, into account before coming to a decision; and

   2.1.4Promptly advise the mother in writing of the decision taken.

3. An order that parents have equal shared parental responsibility carries with it the obligations imposed by s 65DAC of the Family Law Act 1975 (Cth) (“the Act”), namely an obligation to consult, to make a genuine effort to come to a joint decision (s 65DAC(3)) and to jointly decide major long-term issues (s 65DAC(2)). An order that parents have equal shared parental responsibility triggers the application of s 65DAA of the Act (Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances) and influences in a real way the approach to the determination of parenting orders concerned with the amount of time a child will spend with his or her parents (Goode and Goode (2006) FLC 93-286).

4. Central to this ground is her Honour’s misstatement at [16.1] that the father sought that he be given sole parental responsibility for the child.  Although this was his position at the commencement of the trial, in response to evidence given by the single expert Dr DD (“the single expert”), the father proposed an order that:

   The parties’ have equal shared parental responsibility for [the child], with a notation to the effect that the parties are agreed that [the child] will attend [a named school] and attend [a named high school].  Further, [the child] will attend [a named medical centre], except in the case of an emergency when he might be required to attend elsewhere.

   (Trial Exhibit 36)

5. The mother did not agree that the parties have equal shared parental responsibility or that the notations be recorded.  Rather, she sought sole parental responsibility and argued against an order for equal shared parental responsibility.  It was proposed by the ICL that the parties have equal shared parental responsibility.  However, counsel who appeared for the ICL said that such an order would be “problematic” and pointed out that “there is very much in the material which shows an acrimony between the two parents” (transcript, 6 March 2018, p 486, lines 16 – 17).  Furthermore, and as is undoubtedly correct, it was submitted on behalf of the ICL that the primary judge was not bound by the various proposals put and also:

   Now, if your Honour finds that there are too many difficulties with equal shared parental responsibility, then, in my submission, and I explained that we were – this was problematic and we were somewhat vexed by it – it would be appropriate for the parent with primary residence or care of the child to have sole parental responsibility.  I’ve attempted to outline fairly why your Honour might come to that conclusion and the problems we’ve had with it.  Now, unless there’s anything else, that in summary are my submissions in relation to the orders sought. 

   (Transcript, 6 March 2018, p 495, lines 41 - 47)

6. Although the primary judge misstated the position taken by the father concerning parental responsibility, consideration of the trial reasons at [105] – [122] demonstrates that consideration was given as to whether or not such an order would be in the best interests of the child. In deciding that it would not, her Honour took into account that the mother demonstrated “…very little prospect of consultation and compromise with regard to long term decisions for this child who is not yet school age” [115]. In addition, whereas the mother had denied the child the opportunity to spend appropriate time with the father, by focusing on the child’s needs the father had agreed that the child should spend time with the mother without supervision. As between the parents, it was found that the father was “more likely to raise issues and consider the point of view of the other parent” [121].

7. During oral addresses before us counsel for the mother provided examples of evidence which might have enabled the primary judge to make similar criticisms of the father.  For example, that in the 19 months the child lived with him, there were four occasions on which he withheld the child from time with the mother.  On three of those occasions the child was said to be unwell and no reason was given for the fourth. However, as will be discussed further, there was a vast body of evidence adduced in the final hearing, and this is but one example of many in the appeal where complaint is made about the failure of the primary judge to make a finding which she was not asked to make.  This evidence and proposed finding was not so fundamental that the failure to deal with it discloses appellable error.

8. The submission by counsel for the mother that her Honour’s reasons given for the order as to parental responsibility are inadequate should be rejected. So should the submission that the misstatement of the position taken by the father qua parental responsibility “... has the potential to have a flow on effect given the provisions of s 65DAA” (mother’s summary of argument, paragraph 22). This is because it was only if the primary judge made the order which the mother said she should not make that consideration of equal time was required. As to this submission, it needs to be understood that the mother did not propose that there be an order for equal time (even in the alternative) and still does not.

9. It is ordinarily incumbent on a party contending on appeal that a discretion has miscarried to demonstrate that the judge’s attention was drawn to the particular matter of which complaint is now made.  In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 (“Macedonian Church”), the plurality stated the proposition thus:

   120.…when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.

   121.The alternative approach would permit a party to run one case before the primary judge and different cases on however many levels of appeal were open. Where it is said on appeal that a primary judge was in error in not taking into account a particular consideration "expressly", even though it was not explicitly submitted to the primary judge that it should be, a benevolent construction of the primary judge's reasons will often reveal, by a process of inference and implication, that the relevant consideration was borne in mind, even though it was not stated in as clear-cut a way as an appellate court, dealing with a hostile submission by one party not put nearly as distinctly, or at all, to the primary judge, might prefer.

10. It also needs to be understood that a party is generally bound by the conduct of his or her case at trial.  The significance of this on appeal is that it is only in the most exceptional circumstances that a party will be permitted to raise a new argument (particularly in relation to factual matters which are contentious) which was not advanced in the court below (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1).

11. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51]-[52] (“Whisprun”) Gleeson CJ, McHugh and Gummow JJ explained the principle thus:

    51.…It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial.  Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination.  Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action.  Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

    52.As Water Board v Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars.  The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal.  But they are not conclusive.  To determine whether a party is raising a new point on appeal, it is "necessary to look to the actual conduct of the proceedings"…  

    (Footnotes omitted)

12. It will be apparent that on appeal, by Grounds 1 and 9, the mother has sought to argue that the primary judge erred by failing to consider propositions and orders which the mother said, and still says, are inimical to the best interests of the child and should not be made.  In reality, the challenge is no more than an attempt to promote an error of no consequence in order to secure an outcome which bears no relationship to the asserted error. 

13. In many respects the approach taken in this appeal resonates with what occurred in Hearne v Hearne (2015) 53 Fam LR 454 (“Hearne”).  Hearne was an action for the settlement of property pursuant to s 79 of the Act in which both the husband and the wife sought orders for adjustment of their property interests. On appeal the husband argued that because the trial judge failed to make a finding that it was just and equitable to alter the parties’ property interests, the order was made beyond power and it should be set aside. He proposed that the proceedings be remitted for rehearing, where it would again be argued that the parties’ interests in their property should be adjusted.

14. Although the court was satisfied that a finding as to justice and equity could be inferred, Strickland J (Ryan J agreeing) went on to say:

    81.… For example, in Metwally, the appellant’s counsel was prevented from arguing on appeal that the Racial Discrimination Act 1975 (Cth) was unconstitutional, where his argument at first instance had proceeded upon the premise that the Act was valid. That of course has striking similarities to the argument in this case.

    82. Secondly, I consider that to seek to raise this issue is an abuse of process.  As already identified, it was not the husband’s case at trial that it was not just and equitable for the trial judge to make an order altering the property interests of the parties, and if the appeal is successful, and the property settlement proceedings are remitted to the Federal Circuit Court of Australia for rehearing, the husband does not intend to argue before the new trial judge that it is not just and equitable for that trial judge to make an order altering the property interests of the parties; indeed, the husband will seek that such an order be made. 

15. In separate reasons Austin J also agreed and explained his agreement thus:

    115. At trial, the husband contended for the exercise of power under s 79 of the Act, which entailed implicit, if not explicit, acceptance that it would be just and equitable to do so. Now, in an attempt to succeed in the appeal, the husband asserts the trial judge fell into error by not making any preliminary finding that it was just and equitable to exercise the power urged upon him. If successful with such submission, upon remittal and re-trial, the husband freely admits he would again contend for property settlement orders to be made, on the basis that adjustment of the parties’ property interests is just and equitable. In such circumstances, the husband’s prosecution of the ground of appeal amounts to an abuse of process.

    116. This Court has power to make orders that prevent an abuse of its process and protect its own functions (see Williams v Spautz (1992) 174 CLR 509 at 518…). What amounts to abuse of court process is insusceptible of a formulation comprising closed categories (see Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at 265…), however, one established category is where the use of the court’s procedures would bring the administration of justice into disrepute (see Batistatos at 267; Rogers v R (1994) 181 CLR 251 at 286…). The abuse of the court’s process may be apparent, not just from the institution or prosecution of the proceedings, but from procedural steps taken in the litigation, in which case the power to deal with the procedural abuse extends to the exclusion of the particular vexatious issue from the litigation (see Batistatos at 267).

    117. It would certainly bring the administration of justice into disrepute if the husband was permitted to argue one thing at trial, take a conveniently contradictory position merely to sustain an appeal, and then revert to his initial position upon re-trial.  He should not be permitted to do so.  Litigation is serious; not a game.

1. To allow the mother to succeed on Grounds 1 or 9 would be inconsistent with the principles set out in Macedonian Church,  Whisprun and Water Board v Moutsakis (1988) 180 CLR 491. Furthermore, it would impermissibly have this court tolerate an abuse of its appellate processes.

2. These grounds have not been established.

Failure to take into account material considerations (Ground 5)

1. Ground 5 morphed into a challenge that the primary judge failed to take into account that the father unilaterally cancelled some of the child’s time with the mother, albeit it was properly conceded that in and of itself this challenge was insufficient to establish a basis for appellate intervention.  This issue has already been discussed under the rubric of Ground 1 and for the reasons given above this ground should also fail.

Reasons or the lack thereof (Grounds 2, 6, 7 and 8)

1. By Ground 2, it is contended that the primary judge failed to give sufficient reasons for several findings particularised in the ground.  However, before us, the challenge became that the primary judge made an error of fact vis a vis the amount of time that the father sought that the child have with the mother.  It followed, that the primary judge “failed to give a judgment which appropriately dealt with the controversies before her and the breadth of the dispute between the parties” (mother’s summary of argument, paragraph 28).

2. It was also argued that the primary judge failed to explain “on what material” the following findings were made:

   ·That in the residence of the father the child has been stable [190];

   ·There is a real risk that the mother would close the father out [189]; and

   ·The child has thrived in the residence of the father [190].

3. Turning then to the father’s proposal concerning the child’s time with the mother.  As has already been indicated, the primary judge overlooked the fact that during the trial the father altered his position concerning parental responsibility and the amount of time the child should have with the mother.  His position at the close of the hearing is contained in a letter dated 31 January 2018 (Exhibit 36) from his solicitors to the solicitors for the mother.  He proposed a gradual increase from the arrangements as existed at trial and which would culminate in a week about arrangement once the child started school. 

4. However, as was mentioned earlier the father’s proposal was rejected by the mother and it still is.  It follows, that contrary to the position now taken on appeal by the mother, there was no controversy at trial as far as the mother was concerned in relation to this point. 

5. As to the lack of explanation for the findings referred to in paragraph 29 above, there is no contention that her Honour’s findings were not available, with the strongest challenge being that the finding of stability “is problematic” (mother’s summary of argument paragraph 35).  While this would be sufficient to reject these challenges, it should not pass without comment that they do not fairly capture the trial reasons. 

6. The impugned findings were made under the heading “Conclusion”.  As the heading suggests they are conclusions based on findings which precede them.  It is always important to read the trial reasons in the context of the judgment as a whole, which the challenge presented here does not do. 

7. By way of example, the primary judge accepted evidence given by the single expert that in the company of the father the child was “quite settled, safe and secure” [132], and had a good attachment to him [133]. The judge recognised that there had been a “level of disruption” for the child, but he had “done well” [138] and was satisfied that the child has a relationship of love and affection with both of his paternal grandparents [25] with whom the father and child had lived for some time. It is in this respect that the child had enjoyed stability of care and thrived.

8. It is accepted that in the 19 months that the child lived with the father they moved from an apartment where the father lived with the subject child’s two older     half-brothers, then lived with Ms O, the father’s partner, for some six months, following which the father and the child moved in with the father’s parents.  The subject child’s half-brothers returned to live with their maternal family in Canberra.  It is also accepted that when the child came into the care of the father, he changed the child’s day care and he was taken to a different medical centre.  It is also uncontroversial that the child had not had face to face contact with his half-brothers since March 2017.  The primary judge addressed the significance of how this might affect the brothers’ “close bond”, and in so doing pointed out that in the father’s care, the brothers’ maintained regular contact through FaceTime.  It is noteworthy that the various changes raised by the mother occurred in the first few months after the child came into the care of the father. 

9. The proper analysis of all the relevant facts is that while there were a number of changes in the child’s living and social arrangements early in the piece, those arrangements had settled, and in the 12 months prior to the hearing the child was settled with his father and paternal grandparents.  Considered in this light, and having regards to the matters identified in [34] above, it is not accepted that these matters (which were not raised in closing addresses before the primary judge) demonstrate that her Honour’s findings as to stability and the brothers’ relationships was not available. 

10. As to the finding that the mother may close the father out, this is a conclusion which was clearly based on a combination of the following findings:

    ·    The mother blames the father for her situation and finds his actions unforgivable [112];

    ·    The mother has labelled the father as a narcissistic psychopath and asserted that she believes he is one [113];

    ·    The mother is bitterly resentful that her role as primary carer was so abruptly ended [115]; and

    · At separation, [the mother] was angry with the father and “allowed her feelings to take priority over the emotional needs of the parties’ two year old child to spend as much time as he could with both his parents” [116].

11. It is accepted that the reasons on this point are brief but they are sufficient to ascertain the basis upon which the finding at [189] was made. 

12. Grounds 6, 7 and 8 concern her Honour’s approach to family violence.  By these grounds it is said that the primary judge erred by:

    ·Failing to take into account material considerations on the question of corroboration, namely the father’s criminal history of violence, his admissions of smashing mobile phones and/or the single expert’s opinion that the father is someone who has difficulty managing his temper;

    ·Failing to consider, as a primary consideration, the allegations of family violence raised by the mother, and therefore the need to protect the child from physical or psychological abuse; and

    ·Having decided that she could not make a finding that such incidents of family violence occurred, erred by failing to consider whether the evidence nevertheless raised risk of harm to the child to be considered in relation to who should be the primary carer of the child.

13. In the mother’s summary of argument it is said that the trial reasons are wanting because the primary judge did not deal with the mother’s allegations of family violence.  This submission is wrong and ignores that [170] – [183] of the trial reasons are devoted exclusively to this issue. 

14. There is no suggestion that the primary judge misstated the evidence adduced in relation to this topic and at its highest, the complaint made concerning her Honour’s findings of fact is that she failed to consider that “[the father] had a criminal record”, told the single expert that “he had a temper”, and can be demonstrative in his anger and break and throw things.  This is a reference to evidence given at paragraph 65 of the report by the single expert as follows:

    [The father] did agree that he had a temper. He said he does get over it in a couple of minutes but it can flash quickly. He said at times he can be demonstrative in his anger and break and throw things although he said such behaviour does not happen much these days. He said tends to be calmer and has impulse control at present time.

15. The father’s police record is contained in Exhibits 33 and 34.  Exhibit 33 records what police describe as “a minor disturbance” which occurred when the father, as a security officer, confiscated alcohol from the victim who was drinking in the company of three friends.  A scuffle developed during which the father grabbed the victim around the throat before manoeuvring him into a headlock.  The father accepted that he should have called the police before confiscating the alcohol and said he acted in self- defence.  The father was cautioned and was not charged with an offence. 

16. The next item recorded also occurred while the father was employed as a security officer, and in relation to which the police record that he made a citizen’s arrest.  No action was taken against him.  Otherwise, there is a missing person’s report in relation to a work colleague of the father’s but which has no relevance to the parties.  There is another incident in which the father was the complainant, and finally a dispute at a service station in relation to which police concluded that there was insufficient evidence to charge the father and that he “provided quite a plausible explanation for his actions”, which in part was corroborated by a consul operator. 

17. It is accepted that an argument may have been made that this evidence might have assisted with the analysis of the evidence concerning family violence given by the mother, including as to corroboration.  However, there were no submissions made by counsel who then appeared for the mother to this effect, and her Honour was not invited to draw inferences based on that evidence as to the probability about whether the mother’s evidence on this point was more persuasive than that given by the father. 

18. Furthermore, the mother’s evidence about family violence was tested under cross-examination, as was the father’s, including his denials.  Thereafter, no submissions were made by counsel for the mother (or the ICL) to the effect that the primary judge could or should find that the father had perpetrated family violence against the mother or that there was a risk to the child that he would be exposed to family violence in his father’s care.  Yet, consistent with authority (Blanch v Blanch and Crawford (1999) FLC 92-837), her Honour analysed the critical elements of the evidence (including the father’s admission that he had broken a few mobile phones at [176]) and determined that the mother had not satisfied the evidentiary onus imposed on her. This finding was undoubtedly influenced by findings at [20] in favour of the father’s evidence on a point being more reliable, and at [75] that the mother was “a less than reliable witness”.

19. Consistent with Macedonian Church at [121], in these circumstances a measure of benevolence should be utilised in examining the approach taken to the evidence concerning violence. All the more so when it is recalled that the mother proposed that the child would spend substantial time with the father without any form of supervision or restrictions upon the circumstances under which that might be exercised. The point being that the orders proposed by the mother were inconsistent with the contention that the evidence nonetheless “raised risk of harm to the child” in the care of the father (Ground 8).

20. In my view her Honour’s findings as to family violence were available and the process of reasoning is adequately explained. The effect of this is that it was not necessary that separate consideration be given to s 60CC(2A) of the Act (greater weight to be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to...family violence).

21. Grounds 6, 7 and 8 have not been made out.

22. I would dismiss the appeal.

Strickland J

1. I agree with the order proposed by Ryan J and the reasons delivered by her Honour.  

Alstergren CJ

1. I too also agree with the reasons and order proposed.

Ryan J

Costs

1. The mother has failed to establish error and thus consideration must be given to the costs of the appeal.

2. As is customary, at the close of oral addresses we sought submissions from the parties in relation to the costs in the appeal.  In the event that the appeal was unsuccessful, the father sought an order for costs against the mother in the amount of $12,844. The mother resists the application for costs, albeit no challenge is made to the quantum in the event that it is considered that an order should be made.

3. The issue of costs is governed by s 117(1) of the Act which provides that each party to a proceeding under the Act bear his or her own costs unless the Court is of the opinion that the circumstances justify the making of an order for costs (s 117(2)). In determining what order should be made under s 117(2), the Court must have regard to the relevant factors in s 117(2A).

4. The father’s application is predicated on the basis that the mother has been wholly unsuccessful, which undoubtedly weighs heavily in his favour.  However, I place greater weight on the fact that the mother was able to point to a number of errors in the trial reasons, in relation to matters which concern the welfare of a young child.  Although she was not able to establish appellable error, I understand why she felt it was appropriate to bring these matters to the attention of the Full Court.

5. Further, given the nature of the parties’ employment and the terms of their property settlement as revealed in the trial reasons, I infer they are of modest means and that the mother could not readily afford to pay the amount sought.  I would therefore dismiss the father’s application for costs.

Strickland J

1. I agree with the order proposed and the reasons given.

Alstergren CJ

1. I also agree.

Ryan J

1. The orders therefore will be that the appeal be dismissed and the father’s application for costs be dismissed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Strickland and Ryan JJ) delivered on 9 April 2019.

Associate:

Date: 16 April 2019