Carter & Wilson
[2023] FedCFamC1A 9
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Carter & Wilson [2023] FedCFamC1A 9
Appeal from: Wilson & Carter [2022] FedCFamC1F 216 Appeal number(s): NAA 100 of 2022 File number(s): PAC 5480 of 2018 Judgment of: MCCLELLAND DCJ, BENNETT & CAMPTON JJ Date of judgment: 10 February 2023 Catchwords: FAMILY LAW – APPEAL – Where the mother appeals from an order for equal shared parental responsibility – Findings of family violence perpetrated by the father – Finding of controlling conduct perpetrated by the mother in limiting the child’s time with the father – Determining coercive and controlling behaviour must consider the context in which the conduct occurred – Mother had genuine concerns for the child’s welfare in spending time with the father – Primary judge erred in finding of family violence perpetrated by the mother – Error did not affect outcome – Appeal dismissed – Costs certificates. Legislation: Family Law Act 1975 (Cth) ss 4AB, 61B, 60CC, 61D, 61DA & 65DAC
Federal Proceedings (Costs) Act 1982 (Cth)
Cases cited: de Winter v de Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
F v M [2021] EWFC 4
F, M v A & B (Acting through their Children's Guardian, Ruth Alexander) [2022] EWFC 124
Helbig & Rowe and Ors [2016] FamCAFC 117
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Illgen & Yike [2018] FamCA 17
L(ND) v L(MS) 2010 NSSC 68; [2021] N.S.J. No. 86
Martin & Payne [2017] FamCA 1041
Newfoundland and Labrador (Manager of Child, Youth & Family Services) v. A.C. 2012 NLTD(F) 7; [2012] N.J. No. 54
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pachris & Tajir (No 2) [2022] FedCFamC2F 1296
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R. v. Parsons, [2020] N.J. No. 232
Ramzi & Moussa [2022] FedCFamC2F 1473
Reeves & Grinter [2017] FamCAFC 19
Cunningham, Allison & Linda Baker, “Little Eyes, Little Ears: How Violence Against a Mother Shapes Children as They Grow” (2007) Centre for Children and Families in the Justice System, London Family Court Clinic Inc
Riethmuller, Grant and Lisa O’Neill, “Australia Taking Family Violence Seriously: Adjusting the Court Process to Improve Access to Justice” in Margaret Brinig (ed), International Survey of Family Law (Intersentia, 2021) 38
Number of paragraphs: 108 Date of hearing: 2 September 2022 Place: Sydney Counsel for the Appellant: Mr Macarounas Solicitor for the Appellant: Rowlandson & Co Solicitors Counsel for the Respondent: Mr Blank Solicitor for the Respondent: Horowitz Bilinsky Pty Ltd Counsel for the Independent Children’s Lawyer: Ms Tabbernor Solicitor for the Independent Children’s Lawyer: John Spence & Associates ORDERS
NAA 100 of 2022
PAC 5480 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CARTER
Appellant
AND: MR WILSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ, BENNETT & CAMPTON JJ
DATE OF ORDER:
10 february 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
3.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
4.The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Wilson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ & CAMPTON J:
Introduction
By Amended Notice of Appeal filed on 28 July 2022, the mother appeals from a single final parenting order made on 8 April 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1) that the parties have equal shared parental responsibility for their child, X, born in 2016 (“the child”). The order subject to challenge on appeal was made after consent orders were made on 18 January 2022 regulating all other issues as to the parenting of the child, which broadly provided for the child to spend time with the father on a graduating basis to the point where he spends alternate weekends and one evening in the alternate week with the father.
For the reasons that follow, the appeal should be dismissed on the basis that, notwithstanding the mother has established an error by the primary judge, such error did not affect the result of the proceeding.
Background
The background to this matter has been helpfully summarised in the reasons of Bennett J below. The mother and father met in 2013 and commenced a relationship in or about 2014. The precise date of the parties’ separation is not material to this appeal, but appears to have been in May or June 2016, shortly after the child was born. After separation, the mother limited the amount of time the child spent with the father and insisted that the time be supervised. That position was reflected in interim orders made by the Court on 30 January 2019 and subsequently.
The father’s daughter from a previous relationship, Y, spent time with the parties and the child when the parties were in a relationship. The child was a newborn infant at that time.
The primary judge found that, on one occasion, the father was physically violent towards the mother (at [17]). The father also admitted to holding his hand over Y’s mouth to prevent her from screaming (at [15]). While investigated by law enforcement and child welfare authorities, no criminal proceedings resulted. A final Apprehended Domestic Violence Order was, however, issued against the father in September 2017 naming Y as a protected person. The father has not spent time with Y since that order was made. While not the subject of criminal prosecution, the father acknowledged, at the hearing, that his conduct towards Y constituted family violence as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”).
That admission by the father and the finding that he had perpetrated violence against the mother was relevant to the primary judge’s determination that the presumption of equal shared parental responsibility did not apply to the circumstances of this case (s 61DA(2) of the Act). There is no challenge to that finding. Controversially, however, the primary judge also found that the mother’s conduct in limiting the amount of time the child spent with the father and her insistence upon such time being supervised amounted to controlling conduct for the purpose of the definition of family violence as set out in s 4AB of the Act.
Grounds of appeal & disposition
For reasons set out by Bennett J, we respectfully agree that Grounds 1, 2 and 5 of the appeal are without merit. We also agree with her Honour’s conclusion that Ground 4 must also fail. Our reasons for so deciding are as follows.
Family violence is defined by s 4AB relevantly as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
The immediately following subsection provides examples of conduct that may constitute family violence:
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(Emphasis added)
The assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB(1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
The primary judge found that the mother had engaged in family violence because she “initially” prevented the child from spending time with the father and, in doing so, “controlled [the child] and controlled his relationship with the [father]”. That control, the primary judge found, prevented the child from keeping connections with his family, namely his father (at [18]).
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which the words “coercive” and “control” have been considered both separately and in combination. For example, in Illgen & Yike [2018] FamCA 17, after examining the ordinary and natural meaning of the words separately, Gill J noted that while, in s 4AB, behaviour that ‘coerces or controls’ is expressed disjunctively, the two concepts are closely related, stating at [125]:[1]
Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
[1] See also Pachris & Tajir (No 2) [2022] FedCFamC2F 1296 at [85].
To similar effect, in Ramzi & Moussa [2022] FedCFamC2F 1473, after referring to the decision of Gill J, Judge Beckhouse stated at [45] that, in the context of conduct that was not inherently violent or threatening, “[g]enerally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member” (emphasis added).
There is much to commend in her Honour’s succinct analysis and, in that respect, we observe that a similar approach has been taken in applying the ordinary and natural meaning of the words in comparable jurisdictions (see for example the Canadian cases of Newfoundland and Labrador (Manager of Child, Youth & Family Services) v. A.C. 2012 NLTD(F) 7; R. v. Parsons, [2020] N.J. No. 232 and the English case of F, M v A & B (Acting through their Children's Guardian, Ruth Alexander) [2022] EWFC 124 at [10], referring to F v M [2021] EWFC 4).
In the absence of either the primary judge or ourselves having the benefit of argument concerning the potential relevance and applicability of those authorities to this appeal, we do not intend to give a comprehensive definition of what constitutes behaviour by a person that is other than violent or threatening, but that “coerces or controls”. What is clear is that the determination of what constitutes behaviour “that coerces or controls” must be considered in the context in which the conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]).
In the context of the facts and circumstances of this case, we respectfully agree with Bennett J that the conduct of the mother in limiting the amount of time that the child spent with the father could not reasonably be determined to be coercive or controlling conduct for the purposes of s 4AB(1). In that respect, there was no finding that the mother’s concerns for the welfare of the child were other than genuine in the context where she had herself been the subject of one violent assault by the father and had witnessed the father’s admittedly unacceptable conduct towards Y. There was no finding that the mother acted capriciously or maliciously. Indeed, as noted by Bennett J, the mother was acting in accordance with orders of the Court after
30 January 2019.
The mere fact that the mother’s conduct in limiting the child’s time with the father could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence as defined in s 4AB(1). Context is all important. There was no finding that the mother was acting other than protectively towards the child. Such conduct, in the context of the Act, which has a strong focus on the promotion of the welfare of children and protecting them from being exposed to violence, cannot, in our respectful opinion, in the circumstances of this appeal, reasonably ground a finding of family violence as defined in s 4AB of the Act.
Having noted error on the part of the primary judge in so finding, the relevant question then becomes whether the error impacted the result of the case (de Winter v de Winter (1979) FLC 90-605). For reasons provided by Bennett J, we agree that the error did not affect the outcome of the case because the primary judge found that the presumption of equal shared parental responsibility did not, in any event, apply because of the admitted violence perpetrated by the father.
Accordingly, we agree with Bennett J that the appeal must be dismissed and, for the reasons her Honour has provided, we are also satisfied that relevant certificates should be granted pursuant to the provisions of the Federal Proceedings (Costs) Act 1982 (Cth).
BENNETT J:
Introduction
By Amended Notice of Appeal, filed on 28 July 2022, the mother appeals from a final parenting order that the parties have equal shared parental responsibility in respect to their son X (“the child”), who was six years old at the time of the hearing. The order was made on 8 April 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1).
In the primary proceedings, the mother and the Independent Children’s Lawyer (“the ICL”) sought orders to the effect that the mother have sole parental responsibility for the child, subject to notifying the father about decisions she proposed to make, taking into account any views expressed by the father in relation to her proposed decision and then informing the father of the decision taken. The father sought an order that he and the mother have equal shared parental responsibility for the child.
Despite seeking a different order in the primary proceedings, the ICL supports the position of the father that the appeal should be dismissed on the basis that the mother has failed to establish appealable error impacting the decision by the primary judge.
Other than in one respect, I am of the opinion that the appeal is without merit. The error on the part of the primary judge relates to their finding that the presumption in favour of an order for shared parental responsibility did not apply because, as one of several reasons, the mother had engaged in conduct constituting family violence as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”) by preventing the child from maintaining a relationship with the father.
That error, however, did not impact upon the proper exercise of discretion by the primary judge who, having found that the presumption did not apply, gave proper and detailed consideration to the relevant discretionary considerations advanced by the parties as to whether, in any event, an order should be made for equal shared parental responsibility.
Accordingly, for these reasons, I have determined that the appeal must be dismissed.
The appeal
The grounds of appeal were set out in the Amended Notice of Appeal filed on 28 July 2022 as follows:
1. The Learned Trial Judge erred as his discretion miscarried as to the making of an order for Equal Shared Parental Responsibility as he failed to give careful consideration to the opinion of the Family Consultant regarding Sole Parental Responsibility and therefore failed to take into account a material consideration in the exercise of the Court's Discretion.
2. The Learned Trial Judge erred as his discretion miscarried as to the making of an order for Equal Shared Parental Responsibility as the Trial Judge made an error of fact in respect of his finding that the parents' will be able to communicate and reach agreement on matters in the future therefore making an error of fact;
3. The Learned Trial Judge erred as his discretion miscarried as to the making of an order for Equal Shared Parental Responsibility as he failed to give proper consideration to an Order for Sole Parental Responsibility with Consultation therefore failed to take into account a material consideration in the exercise of the Court's Discretion.
4. The Learned Trial Judge erred as his discretion as to the making of an order for Equal Shared Parental Responsibility miscarried as he found at [18] that the Appellant had engaged in Family Violence as defined under s4AB(1) in circumstances where it was not open on the evidence for the Court to do so thereby making an error of fact and law.
5. The Learned Trial Judge Erred in law erred as his discretion as to the making of an order for Equal Shared Parental Responsibility miscarried in that he found at [18] that the Appellant had engaged in Family Violence as defined under s4AB(1) without directing himself as to the requisite standard of proof for such a finding to be made thereby making an error of fact and law.
(As per the original)
The mother did not press Ground 3 of her amended grounds of appeal.
As this is an appeal from a discretionary judgment, it is necessary for the mother to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540. That is, appellate intervention may be required where the primary judge:
(a)Acts upon a wrong principle; or
(b)Allows extraneous or irrelevant matters to guide or affect the decision; or
(c)Mistakes the facts; or
(d)Fails to take into account some material consideration; or
(e)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.
Relevant Background
The father is 43 years old and the mother is 39 years old. The mother and father met in 2013 and commenced a relationship in 2014. The child was born in 2016.
The parties do not agree on the date of separation but it appears to have occurred in May or June of 2016.
After separation, the father spent limited time with the child and most, if not all, of that time was under the supervision of the mother.
The father has another child from a previous relationship, Y, who was 17 years old at the date of the hearing. Y spent time with the father while he and the mother were cohabitating and, to that extent, Y was a member of their household.
Proceedings between the father and his previous partner, Y’s mother, resulted in final orders by Collier J in December 2011. In 2016, the Joint Investigative Response Team (“JIRT”) investigated allegations that the father had harmed Y, however none were substantiated. The father told the Family Consultant in November 2019 that he had not spent time with Y since September 2017. This followed a final 12 month Apprehended Domestic Violence Order being taken out against him by the police, naming Y as the protected person. The application by police alleged that the father had assaulted Y and she thereby sustained an injury. The father acknowledged that he had covered Y’s mouth to prevent her from speaking or yelling at him during an argument. The father also admitted having smacked Y and acknowledged this may have been harmful to his daughter.
During the course of the trial, the father was cross-examined extensively on his mistreatment of Y. The father admitted to being a perpetrator of family violence in respect to Y but alleged that the mother was complicit in some respects, in particular, by telling him to physically chastise Y. The mother denies having done so and gave evidence that she was and remained fearful that the father will mistreat the child as he mistreated Y.
There is no challenge to the following finding of the primary judge at [15]:
The [mother] and the [ICL] argue that the presumption of equal shared parental responsibility does not apply because the Court should be satisfied that the [father] has engaged in abuse of another of his children, [Y]. The evidence supports this submission. The [father] accepted that he had placed his hand over [Y’s] mouth on a number of occasions so as to prevent her screaming when he did not want her to scream. That action probably constituted an assault within the description of abuse. I so find.
In affidavit evidence filed 23 January 2019, the mother detailed the 22 occasions on which the father spent time with the child after separation. The times were bookended by the mother, the father, Y and the child holidaying together in City A in late April 2016 and the mother, the father and the child spending time at Town B and Town C on 12, 13 and 14 February 2018. The father disputed the mother’s assertions that he made little effort to interact with the child on each occasion but agreed that the mother was nearly always present.
The father’s Initiating Application was returnable on 30 January 2019. Interim orders were made on that date by a judge of the Federal Circuit Court of Australia (as it was then) providing for the child to live with the mother and spend supervised time with the father at a specific contact centre for three hours on alternate Wednesdays.
The father commenced supervised time at a contact service on 1 February 2019, which ceased on 10 April 2019 because the father attested that he “wasn’t happy with the service”. Supervised time recommenced on 10 June 2019 with a different contact service.
On 18 April 2019, the matter came back before a judge of the Federal Circuit Court in the Parramatta registry. The father was self-represented and the mother was represented by her solicitor. It was ordered by the Court that all interim parenting applications be dismissed, noting that “the interim order made 30 January 2019 will continue pending further order.” The parties were ordered to attend family counselling and a request was made for the appointment of an ICL.
By late September 2019, the father commenced contacting the mother directly with requests that she forgo the supervision of his time with the child. The mother refused, requested that the direct communication cease and that the father negotiate with her solicitors. The father persisted requesting of the mother that supervision of time cease.
The Family Report writer, Ms D, conducted assessment interviews in the Parramatta Registry on 25 November 2019. The family report was released on 26 November 2019.
At paragraph 90 of her report dated 26 November 2019, Ms D made the following observations:
As the situation currently stands, the current arrangements for [the child] in spending time with [the father] has remained limited and provides [the father] a narrow opportunity to demonstrate his parenting capacity and for [the father] to be reassured that [the child] will be safe in [the father’s] care. If the Court determines that [the child] is not at unacceptable risk of harm in spending time with [the father], then it may be beneficial for [the child] to spend increased time, [the father’s] home environment with reduced reliance on supervision. This may provide [the mother] with confidence that [the father] is able to prioritise and attend to [the child’s] needs and not engage in abusive behaviour or inappropriate discipline of [the child]. Thereafter, if [the child’s] time with [the father] continues to progress well, then it may be in [the child’s] interest to gradually increase his time with [the father] to include alternate weekends from Friday afternoon until Monday morning on an unsupervised basis, with to gradually commence from [the child’s] fourth birthday. If the quality of the parent's relationship was to improve, consideration of [the child] spending more substantial time with [the father] could be considered. It may be of assistance to the parents if the engage the services of a qualified family therapist who has experience in working with high conflict, separated families to assist them in developing a more functional co-parenting relationship.
The Family Report concluded with recommendations that the child live with the mother, the mother have sole parental responsibility for the child and that “[the child’s] spend time arrangements be subject to Judicial determination.” (Family Report dated 26 November 2019, paragraphs 92–94).
Course of proceedings
After several adjournments, the hearing concluded on 9 June 2021. The delivery of judgment was delayed to facilitate the parties engaging in ongoing settlement negotiations. Those negotiations were substantially successful, with the parties reaching agreement on all relevant parenting issues other than the issue of parental responsibility. On 18 January 2022, consent orders were entered reflecting the parties’ agreement.
Following the elevation of the primary judge to the Federal Circuit and Family Court of Australia (Division 1), the application for determination of parental responsibility was transferred to this Court and it was agreed between the parties that the primary judge “should determine that issue based on the evidence that [the primary judge had] already heard in the application more generally” (at [5]).
The presumption of equal shared parental responsibility
Division 2 of Pt VII of the Act deals with what parental responsibility is and who has parental responsibility. Parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children
(s 61B). Subject to any order of the Court, each of the parents of a child who is not yet 18 years of age has parental responsibility for the child (s 61C). When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child
(s 61DA(1)). Relevantly, the presumption of equal shared parental responsibility is rebutted if there are reasonable grounds to believe that the parent of a child has engaged in abuse of the child (or another child who, at the time, was a member of the parent’s family), or family violence (s 61DA(2)). The presumption of equal shared parental responsibility may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child
(s 61DA(4)).
Here, the primary judge found that the presumption that the child’s parents should have equal shared parental responsibility does not apply because s 61DA(2) was engaged, stating at [17] and [18]:
17.I am comfortably satisfied and I find, that the [father] has engaged in family violence towards the [mother]. The evidence demonstrates that there was at least one physical assault of the [mother] by the [father]. That assault was not repeated and I am not satisfied that such behaviour by the [father] represents an ongoing risk for [the child], but it does mean that the presumption of equal shared parental responsibility is displaced.
18 Further, I am also satisfied and I find, that the [mother] has engaged in family violence towards [the child]. It will be seen from s 4AB(1) that family violence is constituted by behaviour by a person that controls a member of that person’s family. Here, the [mother’s] behaviour in preventing [the child] from spending time with the [father] controlled [the child] and controlled his relationship with the [father]. It also controlled the [father] in his relationship with [the child]. That control prevented [the child] from keeping connections with his family, namely his father. [The child] is a member of the [mother’s] family. The [father] is [the child’s] family. Withholding [the child] from maintaining a relationship with the [father], as the [mother] did initially, I find, was family violence.
Regard must also be had to the primary judge’s finding of family violence by the father against Y described at [15] of the reasons, extracted above. As noted, no challenge is made to the finding set out in [17] or the conclusion of the primary judge that the presumption of equal shared parental responsibility does not apply as a result of that finding.
consideration of Grounds of appeal
Ground 1
The mother contends that the primary judge failed to give careful consideration to the opinion of the Family Consultant regarding sole parental responsibility and therefore failed to take into account a material consideration in the exercise of his discretion.
The decision of a trial judge is not to be delegated to an expert, including a Family Consultant or, as known by their more recent title, Court Child Expert. As noted by the Full Court in Reeves & Grinter [2017] FamCAFC 19 at [15]:
Numerous authorities of the Full Court of this court make it plain that the ultimate decision is for the trial judge and it is a matter for the trial judge’s discretion as to what weight is to be given to expert evidence in the context of all the evidence to be considered.
(Citations omitted)
In his Honour’s judgment, the primary judge summarised the evidence of the Family Consultant to the extent that the primary judge considered the evidence was relevant to the issues he was required to determine in the proceedings.
In that respect, the primary judge acknowledged that the basis of the recommendation by the Family Consultant for the mother to have sole parental responsibility was her opinion that the biggest risk for the child was the potential emotional and psychological consequence of being exposed to the ongoing parental dispute (at [32]). His Honour, having considered that opinion, rejected it and found that the orders as proposed by the ICL and the modified version proposed by the mother which required the mother to engage in consultation with the father prior to making a parenting decision regarding major long-term issues were “just as apt” to lead to conflict (at [27]–[29]).
This was in the context of the finding by the primary judge that “[t]he evidence shows that she has effectively excluded the [father] from any decision-making for [the child] for a large part of [the child’s] life. Her unilateral decision-making has led to conflict between the parties and resentment on the part of the [father] which is, frankly, understandable” (at [22]).
In summary, it is clear that the primary judge did consider the evidence of the Family Consultant however, for reasons explained by the primary judge, his Honour did not agree with her conclusion or recommendation in respect to the issue. That conclusion was reasonably open to the primary judge on the evidence and no appealable error has been established.
Accordingly, this ground of appeal is without merit.
Ground 2
The mother contends that the primary judge made an error of fact by finding that the parents will be able to communicate and reach agreement on matters in the future and, thereby, the primary judge’s discretion miscarried as to the making of an order for shared parental responsibility.
The primary judge found that the parents’ ability to agree about schooling foreshadowed better things for the child and that there is hope the parties will be able to reach agreement in future on other matters, although perhaps not without some small difficulty. The primary judge noted that the compromise reached in relation to spend time arrangements required agreement about a range of ancillary practical matters, which the parents had been able to achieve.
In respect of Ground 2, the mother relies upon evidence including but not limited to:
(a)disagreement around the child’s speech therapy;
(b)disagreement around the treatment of the child’s developmental delay; and
(c)disagreement in relation to the location for contact visits.
It is not necessary for a judge who is exercising a discretionary judgment to detail each factor which they have found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378).
The primary judge specifically referred to the evidence which satisfied his Honour that, in the past, the respective approaches of the mother and father to parenting and their communication could be characterised as having proceeded “along parallel paths rather than coming together” (at [30]). His Honour nonetheless referred to other evidence that provided reason for optimism.
This is summarised at [30]–[31] as follows:
In submissions, counsel for the [mother] reiterated the arguments made by counsel for the [ICL] and relied upon them. She argued that the parties recent agreement about [the child’s] schooling was a unique agreement and stands on its own. She argued that it was not representative of some newfound ability on the part of these parents to reach agreements about matters concerning [the child’s] welfare. She pointed, quite correctly in my view, to the parties’ long history of disputation about things such as recording the [father’s] name on [the child’s] birth certificate, the disagreement about school and [the child’s] involvement with a speech therapist. That evidence tended to suggest that these parties moved along parallel paths rather than coming together on a single path for [the child’s] best interests.
However, in my view, the decision the parties reached about [the child’s] schooling is a harbinger for better things for [the child]. Not only have the parties been able to reach agreement about the primary school [the child] will attend, they have now reached agreement about [the child’s] living arrangements and the time that he will spend with each of his parents. There is also evidence that in the recent past the parties have been able to agree on changes to the current interim arrangements where changes have been necessary – Christmas time in 2020 and twice in 2021. That is a significant matter which augurs well for [the child’s] future. They have been able to reach agreement about a range of other matters recorded in the orders that have now been made. Whilst those matters do not indicate that [the child’s] parents will not fall into dispute again about what is in his best interests, it does provide reason for optimism that they will be able to reach agreements about those matters, perhaps not without some little difficulty, but they will be agreements nonetheless.
The mother claims that there was sufficient evidence before the primary judge upon which his Honour could be satisfied of substantial difficulties in communication between the parties. In so far as there was agreement reached between the parties, for example in regards to arrangements for the child’s schooling, the mother claims it was in circumstances where the parties were assisted by their legal practitioners and in any case, negotiations were often lengthy and drawn out.
Counsel for the mother asserts that the primary judge’s findings that the parties will be able to agree on arrangements for the child going forward is not a finding open on the evidence. That is clearly wrong. Factual findings are either open on the evidence or they are not. A factual finding is not open if there is an absence of credible and relevant evidence to support the finding (Edwards v Noble (1971) 125 CLR 296 at [302]–[304] and [397]). In the context of this case, there was evidence in relation to the capacity of the parties to agree on arrangements for the child going forward and it was open to the primary judge to so conclude. No appealable error has been established.
Accordingly, this ground of appeal is also without merit.
Ground 3
The mother did not proceed with this ground.
Ground 4
The mother contends that the primary judge erred as to fact and law in the exercise of his discretion to make an order for equal shared parental responsibility as his Honour found at [17]–[18] that the mother had engaged in family violence in circumstances where it was not open on the evidence for the Court to do so.
Relevantly, family violence is defined by s 4AB of the Act as follows:-
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
The primary judge found that the mother had engaged in family violence in relation to the child because she “initially” prevented him from spending time with the father which, the primary judge found, “controlled [the child] and controlled his relationship with the [father]. It also controlled the [father] in his relationship with [the child]. That control prevented [the child] from keeping connections with his family, namely his father” (at [18]).
We were not addressed on the definitional aspects of “control” under s 4AB. That is not surprising, as the primary judge found that the mother’s behaviour constituted “control” within the meaning of s 4AB without providing an evaluation of the evidence of the behaviour on which that finding was based and could be assessed against the inclusive definition of family violence.
In passing, I would say that the first step in considering what constitutes controlling behaviour under s 4AB of the Act is to look at the text of the section. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(Footnotes omitted)
Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. In so doing, the section also catches behaviour which is both acceptable and necessary (for example, exerting control over child in the exercise of the parenting powers). Therefore, in practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
I am not aware of any authoritative decision on the definitional aspects of behaviour which controls a family member within the meaning of s 4AB, although there are a number of authorities from this jurisdiction which discuss “control” in various contexts. Deputy Chief Justice McClelland and Campton J refer to Ramzi & Moussa [2022] FedCFamC2F 1473. In that case, Judge Beckhouse carefully evaluated the large amount of evidence, made extensive findings and made the following observations at [142]–[149]:
Family violence
Coercive and controlling family violence
142 The mother alleges that the father has been emotionally abusive, sexually abusive and physically violent towards her, and has subjected her to threats, surveillance, and control. She deposes she has experienced coercive and controlling family violence at the hands of the father.
143 Family violence is defined in section 4AB(1) of the Act as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(Emphasis added)
144 Section 4AB(2) of the Act provides a non-exhaustive list of examples of behaviour that may constitute family violence, including assault, sexually abuse behaviour, stalking, unreasonably denying financial autonomy, preventing the family member from maintaining or making connections, and unlawfully depriving the family member of their liberty.
145 Generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.
146 In Illgen & Yike [2018] FamCA 17 at [123]-[125], Gill J analysed the terms “coerces or controls” in the section 4AB(1) definition of family violence in the following manner:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To restrain or constrain by force, law or authority; force or compel, as to do something.
2. To compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase ‘coerces or controls’ is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
[…]
148 In order to assess whether the father engaged in coercive and controlling behaviour, it is necessary to view his behaviour towards the mother over the course of the entire relationship (as well as post-separation), and to consider the cultural context in which it arose.
149 […] it is important to note that this analysis is directed at determining whether the father embarked upon a pattern of conduct throughout the relationship (and beyond) that was aimed at coercing and controlling the mother, and if so, understanding the impact that such a course of conduct had (and continues to have) on the mother. This inquiry is necessary because it is relevant to determining the question of unacceptable risk, especially as the mother alleges that the coercive and controlling behaviour continued well beyond separation. […]Therefore, it is important to consider the evidence […] within the wider context of family violence alleged.
(Emphasis in original)
I agree with Judge Beckhouse’s analysis of the need to contextualise the behaviour which is said to constitute family violence. Insofar as the balance of Judge Beckhouse’s comments in relation to coercive and controlling conduct generally requiring a pattern of conduct can be read as confined to the narrower concept of coercive control, as opposed to the wider concept of behaviour that coerces or controls to which s 4AB is directed, I have no difficulty.
“Coercive control” is a technical phrase in social science literature. It is a concatenation of coercive behaviour and controlling behaviour and is a subcategory of one or both types of behaviour. Whilst the term “coercive control” has been attributed a legal definition in legislation in some jurisdictions, s 4AB of the Act does not do so. Accordingly, it would be an error to describe the behaviour defined in s 4AB as merely “coercive controlling behaviour” or “coercive and controlling behaviour” because to do so could exclude behaviour which is controlling but not coercive or coercive but not controlling, as well as behaviour which cannot be said to constitute a course of conduct. This would limit the ambit of s 4AB in a manner not intended.
If the legislature intended to provide a definition of “coercive control”, it would have done so. The very wide definition in s 4AB(1) coupled with the non-exhaustive list in s 4AB(2) conveys an intention of width. Therefore, when s 4AB is interpreted and its application to a particular set of facts considered, there needs to be a consideration of whether the application of the definition meets the purpose of the statute.
While the comments of Judge Beckhouse and Gill J were relevant to the cases respectively decided by them, their comments do not, in my view, provide a foundation for a general definition of s 4AB.
The Canadian case of Newfoundland and Labrador (Manager of Child, Youth & Family Services) v. A.C. 2012 NLTD(F) 7 is of little assistance here save for highlighting, in the learned judge’s brief review of judgments and social science literature, that there are varying definitions in different contexts with different terms. For example at [46], it is noted that in one social science article, Little Eyes, Little Ears,[2] it is said that “coercive control” involves an “ongoing pattern”, yet in L(ND) v L(MS) 2010 NSSC 68, Macdonald J noted that “domestic violence” may include “isolated and rare incidents” (at [49]). Notably, neither of these exact phrases are used in s 4AB of the Act and there is no requirement that behaviour that coerces or controls a family member must involve a series of acts or a pattern of behaviour.
[2] Allison Cunningham & Linda Baker, “Little Eyes, Little Ears: How Violence Against a Mother Shapes Children as They Grow” (2007) Centre for Children and Families in the Justice System, London Family Court Clinic Inc.
In the English case of F v M [2021] EWFC 4 (“F v M”), Hayden J noted that “coercive and controlling behaviour” in the Family Procedure Rules 2010 (UK) means “an act or pattern of acts” (at [103]), yet the definition of “controlling or coercive behaviour” in s 76 of the Serious Crime Act 2015 (UK) requires that a person “repeatedly or continuously engages in behaviour” which “emphasises the repeated and/or continuous nature of this abuse” (at [105]–[106]). In all these approaches we see (as Hayden J noted in F v M at [109]) that “the significance of individual acts may only be understood properly within the context of wider behaviour”.
The relevant legislation or rules of court discussed in F v M are markedly different from s 4AB. Whilst judgments from other jurisdictions can sometimes provide helpful contrasts, it is the terms of s 4AB as they appear in the context of the Act that must be considered by this Court, not the interpretations adopted in other jurisdictions with respect to provisions that are differently worded or have different purposes. Indeed, definitions that depart from the words of the s 4AB risk leading judges into error by imposing limits on the breadth of the section which was enacted, giving broad examples suitable for its operation in the Act rather than limited elements that would be more suitable in a penal provision.
Before leaving this general discussion about the interpretation of s 4AB, I observe that a finding of family violence for the purpose of s 4AB does not require the Court to be satisfied that the perpetrator intended to perpetrate family violence as defined in s 4AB. A reading of the Canadian and United Kingdom decisions referred to above does suggests that the relevant behaviour must be “designed” or intended to control. Intention on the part of the perpetrator is not a necessary component of family violence under s 4AB of the Act and for good reason. As argued by Riethmuller J and Senior Judicial Registrar O’Neil writing ex curially:[3]
The use of 'intent' to provide limits to the definition is unlikely to be helpful: most perpetrators of family violence claim (with all the sincerity that they can muster) that, subjectively, they did not intend to perpetrate 'family violence', even in the most palpable if cases.
[3] Grant Riethmuller and Lisa O’Neill, “Australia Taking Family Violence Seriously: Adjusting the Court Process to Improve Access to Justice” in Margaret Brinig (ed) International Survey of Family Law (Intersentia, 2021) 38.
At fn 30, the authors observe that, when considered critically and from a distance, it is apparent that the behaviours are most commonly deliberate methods of tactical control and manipulation. The well-developed capacity of perpetrators to manipulate also equips them with the skill and motivation to provide denials of subjective intent that are at least superficially persuasive, making subjective intent a difficult element to prove against a perpetrator.
Returning now to matters which have a direct bearing on the disposition of this appeal, Ground 4 is confined to whether the mother’s behaviour constituted “control” as referred to s 4AB of the Act. The primary judge made no finding of the mother’s conduct being coercive. Accordingly, what constitutes behaviour by a person that coerces a family member, or causes the family member to be fearful, is not essential to my decision in relation to Ground 4.
The mother’s behaviour in restricting time between the father and the child could be behaviour caught by s 4AB as behaviour which is controlling without being coercive. However, conduct does not amount to family violence simply because the primary judge labels it thus. In determining whether a party has engaged in a pattern of coercive or controlling behaviour, context is important. As observed by the Full Court in Helbig & Rowe and Ors [2016] FamCAFC 117 at [91], a finding that a party has engaged in such conduct will generally require a description of what was said and done and the context in which the conduct occurred.
A finding of family violence is a conclusion which must be based on an evaluation of evidence. Obviously, some situations will require a more detailed evaluation than others. Behaviour which is subtle or comprised of common, everyday behaviours is likely to require a greater degree of context to qualify as family violence under s 4AB than would, say, behaviour to which no ambiguity attaches.
In placing the mother’s behaviour in context, I assume that the relevant period during which the primary judge found that the mother’s behaviour constituted family violence was from the child’s birth until the first parenting order, that is, from 2016 to 30 January 2019. However, there is no analysis of evidence or reasoning by the primary judge as to why the mother’s behaviour around the child spending time with the father “initially” (or otherwise) is evaluated as behaviour that controlled the child in the sense contemplated by s 4AB(1) as family violence.
The order made 30 January 2019 provided that the father spend time with the child for two hours each alternate week, fully supervised and at the father’s expense. This interim order was restrictive of the father’s time with the child in a similar vein to the mother’s terms. The interim applications, including the father’s application for unsupervised and more extensive time, were dismissed on 18 April 2019 with no change to the father’s time with the child.
Whilst it is uncontroversial that the mother did not allow unsupervised time between the father and the child when she and the father were living separately and apart prior to orders being made, the primary judge does not identify the extent to which the father’s limited participation in the first three years of the child’s life is attributable to the mother’s behaviour, or why the control exercised by the mother was not consistent with steps taken by a parent who is acting protectively.
The primary judge refers to the mother’s behaviour as controlling of the child, the father and of the child’s relationship with the father. However, his Honour’s reasons do not include an analysis of the evidence or findings about the respects in which he was satisfied that the mother’s behaviour exceeded legitimate parental control and should be characterised as family violence.
There is no subsequent finding by the primary judge that the mother misled the Court at the interim hearings, withheld any significant information nor made claims that transpired to be false. There is no finding that the mother was disingenuous in her concerns about how the father might treat the child (unlike, for example, the findings by Tree J in Martin & Payne [2017] FamCA 1041 at [87]–[92]). It cannot be that in every case that a parent who does not allow time between a child and the other parent is engaging in family violence. Findings of this nature must be contextualised in the circumstances of the case and, as indicated, some situations will require more context than others.
On the facts of this case, relevant context included the circumstances in which the mother had herself been the subject of actual physical violence at the hands of the father and the father acknowledging that he had said some “pretty awful things” to the mother after the child was born. It also included the mother’s concern at the manner in which the father had physically mistreated Y. Most relevantly, it included the fact that, after 30 January 2019, orders were in place prescribing parenting arrangements. The father did not appeal the interim orders and it is uncontroversial that the mother complied with them.
There is, with respect, force in the submission by the ICL that to characterise the uncontextualised behaviour of the mother in this case as family violence within the meaning of s 4AB(1) risks family violence being alleged in virtually every case where a party has genuine concerns regarding a child spending time with the non-resident parent. It cannot sensibly be contended that the definition of family violence was intended to apply to such circumstances.
The grounds of appeal do not impel me to discuss the definition of family violence any further than to observe, as I do, that the primary judge did not identify what evidence was evaluated and how it was evaluated, before concluding at [18] that the mother had engaged in family violence towards the child within the definition in s 4AB. The primary judge did not provide sufficient context against which the restriction of time between the father and the child can be characterised as controlling conduct in the sense required by s 4AB.
I am satisfied that the primary judge erred in principle in characterising the mother’s behaviour in this case as family violence in the absence of contextualising the mother’s behaviour and, in particular, without giving express consideration to the circumstances in which the mother’s behaviour occurred, including, most relevantly, the mother’s concern for the welfare of the child.
As a result, I conclude that the primary judge erred in finding that the mother engaged in family violence as defined in s 4AB of the Act. It is, however, necessary to determine the consequence of the primary judge’s error.
The primary judge’s finding against the mother was made in the context of the primary judge’s consideration of s 61DA(2) and the rebuttal of the presumption in favour of equal shared parental responsibility as a result of his finding of the existence of family violence. However, the father conceded that his behaviour towards Y constituted family violence, which was sufficient to sustain the finding by the primary judge that the presumption was rebutted. That is, irrespective of the unsustainable finding that the mother’s behaviour constituted family violence, there was a sound basis for the primary judge’s determination that the presumption of equal shared parental responsibility did not apply on the facts of this case.
Accordingly, the error did not influence the ultimate conclusion that the presumption did not apply in the circumstances of this case (de Winter v de Winter (1979) FLC 90-605 per Gibbs J at 78,092).
For these reasons, this ground of appeal is also without merit.
Ground 5
The mother contends that the primary judge erred as to fact and law in the exercise of his discretion in making an order for equal shared parental responsibility in that he found that the mother had engaged in family violence as defined under s 4AB(1) without directing himself to the requisite standard of proof for such a finding to be made.
This ground is, with respect, misconceived. As I have noted, the erroneous finding that the mother had engaged in family violence was relevant to the determination by the primary judge that the presumption of equal shared parental responsibility had been rebutted as a result of the operation of s 61DA(2).
Having made that determination, the primary judge correctly stated:
19.…The making of any orders for parental responsibility must necessarily be a direct result of a consideration of [the child’s] best interests rather than the application of any presumptions.
The mother contends that the primary judge’s subsequent consideration of the child’s best interests is to be impugned because the primary judge would, as various provisions in the Act require, have had regard to his finding that the wife’s conduct constituted family violence in the context of ss 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and s 60CG(1). I do not agree.
In this case, counsel for the mother conceded that the primary judge’s reasons disclosed numerous findings of fact which support the primary judge’s conclusion that an order for shared parental responsibility was in the child’s best interests.
It is the case that the primary judge stated, at [22], that he had regard to the father’s resentment towards the mother in respect to his finding that the mother had “effectively excluded the [father] from any decision-making for [the child] for a large part of [the child’s] life” as being “understandable”. It is to be observed, however, that that statement related to the mother’s failure to involve the father in decision making in respect to the child and was not related to the mother’s conduct in “initially” limiting the child’s time with the father that the primary judge erroneously characterised as family violence.
Accordingly, this ground of appeal is without merit and must also be dismissed.
Costs
I have found in favour of the mother on the definitional issue of family violence with the effect that the finding that she engaged in family violence in respect to the child and the father was based on the application of wrong principle and therefore erroneous. I have not found in favour of any other aspect of her appeal.
The father sought an order for costs against the mother in the event the appeal is wholly unsuccessful. Were the appeal to succeed on the basis of the definitional issue only, but fail in terms of relief, the father sought a costs certificate for costs of the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1982 (Cth). The father, in accordance with the appeal judicial registrar’s direction, filed a costs notice for $23,902 in solicitor’s costs and $9,254 in counsel’s fees, being a total of $33,156.
The ICL filed a costs notice for $4,356, of which counsel’s fees were $2,376 and preparation for and attendance at the appeal hearing being $1,980. The ICL stated that costs would be sought as required by policy but otherwise did not wish to be heard. Deputy Chief Justice McClelland confirmed with counsel for the ICL that costs could be recovered because the ICL is a private practitioner.
It cannot be said that the mother has been wholly unsuccessful. Error has been found on the part of the primary judge, notwithstanding that it did not impact upon the outcome of the trial. In those circumstances, this is a matter appropriate for the granting of relevant certificates pursuant to the Federal Proceedings (Costs) Act 1982 (Cth) and orders will be made accordingly.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Bennett & Campton. Associate:
Dated: 10 February 2023
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