Casano and Antipov (No. 2)
[2017] FamCAFC 234
•9 November 2017
FAMILY COURT OF AUSTRALIA
| CASANO & ANTIPOV (NO. 2) | [2017] FamCAFC 234 |
| FAMILY LAW – APPEAL – Parenting – Family Violence – Best interests of the child – Whether the father was denied procedural fairness – Whether adverse findings made on issues not raised in the case – Whether the reasons given by the primary judge were adequate – Challenges to weight given to evidence – Whether an order for supervised time rather than no time should have been made – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Application for costs granted. |
| Family Law Act 1975 (Cth) |
| A v A (1998) FLC 92-800 CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Kioa v West (1985) 159 CLR 550 National Companies and Securities Commission Limited v News Corporation Limited (1984) 156 CLR 296 |
| APPELLANT: | Mr Casano |
| RESPONDENT: | Ms Antipov |
| INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
| FILE NUMBER: | PAC | 3528 | of | 2012 |
| APPEAL NUMBER: | EA | 153 | of | 2016 |
| DATE DELIVERED: | 9 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ryan & Kent JJ |
| HEARING DATE: | 19 September 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 August 2016 |
| LOWER COURT MNC: | [2016] FamCA 653 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr O’Sullivan of O'Sullivan Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Guterres |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
Orders
The appeal be dismissed.
That within one month the appellant pay the costs of the Independent Children’s Lawyer fixed at $6,210.00.
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 Casano & Antipov (No. 2) 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 153 of 2016
File Number: PAC 3528 of 2012
| Mr Casano |
Appellant
and
| Ms Antipov |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 8 May 2017, Mr Casano (“the father”) appeals against a number of parenting orders made on 10 August 2016 by Hannam J pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders concern the parties’ son, B (“the child”) who was born in mid-2009. The practical effect of the orders was to give the child’s mother, Ms Antipov (“the mother”) absolute parental authority for the child and to exclude the father from the child’s life. The orders provide for the mother to have sole parental responsibility for the child, for him to live with her and have no time (order 4) or communication (order 5) with the father. Further, the father is restrained from attempting to remove the child from the Commonwealth of Australia and from engaging or encouraging any third party to undertake any form of surveillance of the mother, her partner or the child (order 6). The orders also give the mother permission to remove the child from the Commonwealth of Australia and for her to obtain a passport without needing to obtain the father’s consent.
Although the amended notice indicates that the appeal is prosecuted against all orders, we were informed that only orders 4, 5 and 6 are challenged. No doubt this was partly influenced by the fact that during closing addresses the father adopted the orders proposed by the Independent Children’s Lawyer (“ICL”) that the mother be given sole parental responsibility for the child, that the child live with her and that the father have limited supervised time with the child. In adopting these orders, the father abandoned his claim for the child to live with him and his contention that the mother and her partner posed an unacceptable risk to the child of violence and abuse.
Ultimately the pivotal issue requiring determination by the primary judge was whether the child should have a very limited relationship with the father as proposed by the ICL and adopted by the father or whether, as the mother proposed, the father should play no role in the child’s life.
During the course of the litigation, the father pursued an extraordinary array of fallacious allegations of child abuse, family violence and exposure to family violence against the mother and her partner. In the pursuit of those allegations, the father presented the child to health professionals, child welfare agencies and the like. By way of example, on 30 January 2013, the father took the child to hospital in relation to “anal injuries” [132]. He telephoned the mother from the hospital and shouted “I am going [to] kill you, I am going to rip your head off”. The father called the mother “a bitch, a fucking slut and a whore”. The father was subsequently convicted of using a telephone to offend and placed on a two year good behaviour bond.
The primary judge found that this behaviour by the father was “very damaging to the child’s emotional and psychological development” [280]. Her Honour accepted the opinion of Dr G (a psychiatrist appointed as a single expert to examine the parties’ mental health) that if the father’s preoccupation with issues to do with the child’s safety in the care of the mother were without foundation, then this was evidence of “paranoid preoccupation” and consistent with “a delusional disorder or personality disorder” [280]. The primary judge was satisfied that the father held “a firm and fixed belief about the risks posed to the child by the mother” [283] and had a “complete lack of respect” for her [284].
Further, the father placed a tracking device on the mother’s telephone and hired a private investigator to undertake “highly intrusive” surveillance on the mother. The surveillance included the mother’s new partner, Mr F, and the child’s day-care centre.
The trial commenced on 7 September 2015 and on 9 September 2015 the primary judge made orders suspending the child’s time with the father until the evidence of the single expert psychiatrist had been given. After the completion of five days of evidence, including that of the single expert, the trial was adjourned to a date to be fixed. However, on that date the mother sought further interim orders for, inter alia, the child’s time with the father to be significantly curtailed; that is for limited supervised time at a contact centre. The mother’s application was supported by the ICL but opposed by the father. The mother’s application was granted and on 16 September 2015 the primary judge made orders to that effect and delivered reasons for those and the orders made on 9 September 2015. Her Honour’s reasons delivered on 16 September 2015 were incorporated into her reasons for judgment published in relation to the final orders. Thus some of the references which follow are to the first set of reasons as well as the final reasons. As will be discussed, this chronology provides important context to the fact that the father has not spent time with the child since then and to the father’s complaint on appeal that the primary judge did not accept as genuine the position adopted by the father in closing addresses.
The primary judge was satisfied that the father perpetrated family violence against the mother during the relationship and after separation and subjected her to “a campaign of harassment … through a barrage of telephone calls, text and other messages” which were “harassing and threatening” [242]. The father was found to have arranged a “home invasion” at the mother’s home in which the mother’s partner was punched “a number of times on his arms, face and head” and a man stood in front of the mother holding a stun gun [140]. More will be said about these matters, but at this point it is sufficient to observe that the only finding challenged in this appeal is that the home invasion was carried out at the behest of the father [245].
The child was a few weeks short of his third birthday when the mother removed him from the family home and moved into a women’s refuge. Thereafter various interim orders provided for the child to spend time with the father, which he did. When the trial commenced in September 2015, there was no doubt that each of the child’s parents had been significantly involved in his care; which arrangement the primary judge described as being “an almost equal time care arrangement” that had endured “for a number of years” [73].
A family consultant provided two reports and it was accepted that the child had a good relationship with the father, to whom he was attached [70] – [72]. As was mentioned earlier, in September 2015 the primary judge varied the arrangements to provide that the child’s time with the father be supervised. This restricted arrangement was unacceptable to the father and although he has not seen the child since, it is apparent that the orders have a dramatic effect on the father and son relationship.
The mother resists the appeal and seeks to uphold the orders.
An ICL was appointed to represent the child’s interests. The ICL contends that the appeal should be dismissed.
The appeal will be dismissed.
Did the primary judge err?
The appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Further, it is well settled by authority that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (Gronow v Gronow (1979) 144 CLR 513 at 520 per Stephen J). This is particularly brought into focus in respect of parenting orders which inevitably involve assessments of the future (CDJ v VAJ (1998) 197 CLR 172 at 218).
There is no challenge to the primary judge’s statement as to the approach to be adopted in cases such as this, and at the commencement of the hearing of the appeal the solicitor for the father distilled the challenges advanced by the father into assertions that the primary judge erred by:
·Denying the father procedural fairness by inferring that a home invasion at the mother’s home was carried out at the father’s behest (ground 1);
·In failing to make orders for supervised time, made orders that were not in the best interests of the child and gave inadequate reasons for the orders made (ground 2);
·Denying the father procedural fairness in failing to accept as genuine the father’s concession through counsel’s closing addresses that “the mother poses no risk of harm to the child” (ground 3); and
·Giving insufficient weight to identified matters of fact which weighed against the finding that the child would not benefit from a relationship with the father (ground 5).
Ground 4 was abandoned.
The home invasion
The essence of this challenge is that it was not put to the father that he had orchestrated the home invasion and thus, the primary judge in finding that it was carried out at his behest, denied him procedural fairness. As to the nature of a fair trial, in National Companies and Securities Commission Limited
v News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:…The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise…
Ultimately, questions of procedural fairness turn on their own facts. Here, the point of principle is that a person is entitled to know the case against him or her and is to be given the opportunity of replying to it (Kioa v West (1985) 159 CLR 550 at 582).
Her Honour’s findings in relation to the surrounding circumstances and the event itself are not challenged and the only aspect of her discussion of this event which is controversial is her conclusion concerning the father’s involvement. Nonetheless, it is helpful to set out her Honour’s findings. Her Honour found:
138.In her affidavit the mother refers to two incidents around this time. First she says that on the evening of 14 March 2013, she heard a knock at the front door and looked through the “peep hole” and saw a man standing there. The man said that he needed the mother’s help and needed a bucket of water as he had broken down. The mother told the man that she could not help him and the man kicked the door hard and left. The mother said it was late and she was scared and so she called police who attended the home.
139.Two days later on 16 March 2013, the mother and Mr F were at the mother’s home and the back door was open due to the heat. The child was not in the home as he was spending time with the father that evening.
140.At around 6:10pm, three men entered the living room. Two men punched Mr F a number of times on his arms, face and head while a third man stood in front of the mother holding a stun gun. Mr F received injuries to his arms and face which lasted some months and he received psychological intervention for trauma associated with the event for around 12 months.
141.The intruders were in the home for about five minutes and did not remove anything from the home, despite the mother and Mr F’s phones and wallets being nearby on a table.
142.The police were contacted and attended the home. Mr F and the mother gave statements. The mother says that on 11 April 2013, she was contacted by police to advise her that they had closed their investigation as they did not have enough evidence to charge any person. There are no police records in relation to the incident before the court.
143.The father does not refer to the home invasion in his affidavit consistent with his case that he had no involvement in it. However, under cross-examination the father said that he became aware of the home invasion because the mother had told him about it and then he found out by other means. The father agreed that he told Dr G that he had discussions with a Commander at Suburb E police.
144.Dr G had written the following in his report:
He [the father] dismissed [Ms Antipov’s] two recent home invasions as having anything to do with him. He explained that he had “found out through the media” about [Ms Antipov’s]…. He had initially discovered about the home invasion due to his contact with the Commander of Police in [Suburb E] through their Facebook page. The incident had occurred on 16 March 2013. He had received an abusive message from [Ms Antipov’s] parents the following day. He stated that he was unable to reveal his sources for the information about this event. He suggested that he had been set up.
145.Under cross-examination Dr G had been asked to access his original notes of his interview with the father about this matter.
Dr G said that his notes read that the father had “found out through the media” about the two recent home invasions. Dr G then said the following:I asked: What media?
He asked:Because I was in contact with the Commander of police Suburb E Facebook page, this report came up of a home invasion in [U Street, Suburb E] on the 16th of March 2013. The description fitted her.
He got an abusive message from the maternal grandparents the following day. She then accused him of doing this
And he goes on to say that [Ms Antipov] and – so that apparently he has been accused – that [Ms Antipov] and her boyfriend – a man tried to kick in the door whilst my child was there. Then two days later, three men kicked the door down and accused him of this action. Fortunately - - -
[COUNSEL FOR THE MOTHER]: So – I’m sorry ? Fortunately I had my child that night.
Apparently through sources that I cannot believe at the moment, there was an incident two days before on Thursday the 14th. The police didn’t know. No one does.
146.When the father was asked when he had spoken to Commander V, he said that he didn’t directly speak to him but “spoke on the Facebook page” and then clarified that he sent a message through the Facebook page to Commander V. He did not have a copy of the message or the Facebook page entry. Subsequently under cross-examination, the father said he saw “a reference to the home invasion” on the police Facebook page and ultimately agreed that he’d had no contact with Commander V. He then denied telling Dr G that he initially found out about the home invasion due to contact with the Commander of police at Suburb E and that he was “unable to reveal his sources for information” about the event.
147.When asked directly if he had anything to do with the home invasion, the father said he did not. The father confirmed that he did not know anything about the incident other than having been accused of it by the mother and her parents and from obtaining information from the police Facebook page.
In relation to the question of the father’s involvement in the home invasion the primary judge analysed the evidence thus:
244.The father remained adamant that he played no part in the home invasion in which Mr F was injured in March 2013 and this is a significant factual matter that requires determination.
245.I am satisfied that the father was involved in the home invasion at the mother’s home and that it was carried out at his behest for the following reasons. My assessment of the father’s credit is such that little weight can be attached to his denial that he played any part in the event. The father was well aware of the physical layout and in particular the entrance to the mother’s home which was utilised by the intruders as a result of the surveillance undertaken by “Company S” shortly prior to the event. It is also of significance that the documents produced by “Company S” and the father are incomplete and in particular no records are produced from March 2013 when the home invasion occurred. I draw the inference that it is likely that surveillance was conducted at the father’s behest in March as there are records of that surveillance in January, February and April 2013. I also draw the inference that the missing records are likely to assist in resolving the dispute about this event and were strategically withheld by the father.
246.It is also to be noted that the home invasion took place at a time when the child was not in the mother’s care. While this may be merely coincidental, it is also consistent with the intruders consciously choosing a time when the child was not present so as not to risk exposing him to the event. Robbery does not appear to have been a motive in the incident and both the mother who had a taser held to her face and Mr F who was assaulted were personally targeted by the intruders.
247.Further, the father made threats to harm the mother and Mr F in text messages, only a matter of weeks prior to the incident.
On January 31 he wrote;
“don’t let me catch that fat fuck anywhere near my son again…do I make myself clear? If you want to prostitute urself you do it ur time slut. Leave my son out of ur pleasures. Take this as a warning. Worthless low life whore”.
On 1 February he wrote;
“and I mustn’t catch him anywhere near my child. Promise u there will be trouble”.
On 8 February he wrote;
“There’s more to come. If I catch fat fuck near my child you will see what im capable of. You’ve lost ur mind. Think about your child and what you are doing.”
And later in the day wrote;
“you won’t be smiling soon. Rest assured. I promise you. Now give ur worthless failure body to a fat fuck and enjoy. Last warning. Keep that fuck away from my child. I see everything. Don’t let me catch him near him again. Am I clear? You will be sorry.”
248.It is also of significance in my view, that the father annexes messages between himself and the mother sent on almost every day from 20 January until 3 March 2013. The records then recommence from 2 April 2013. Inexplicably, there is no evidence of the parties’ later communication in March 2013, including at the time of the “home invasion”. I infer that it is likely that the communication between the parties was occurring between 3 March 2013 and 2 April 2013 as it occurred at great regularity with many messages sent each day both prior and after this period. Alternatively, there were no messages sent or surveillance undertaken at this time. Regardless of which alternative is correct I form the impression, from the absence of messages and surveillance records for this period that the father is attempting to convey that he had little to do with the mother at this time and is thereby distancing himself from any suggestion that he was involved in the home invasion.
249.Finally, the father clearly had an awareness about events at the mother’s home shortly after the events occurred and in my view he provides a particularly spurious and changeable explanation for the basis of that awareness. The father provides no explanation in his affidavit about how he became aware of the home invasion which may have been expected, given that he denies playing any role in it and that at the time the mother was protected by an ADVO against him. He denies providing a version to Dr G as recorded in the doctor’s notes and report and this version in any event is inconsistent with his oral evidence. Dr G was questioned by the father’s counsel concerning his characterisation of the home invasion as an incident of some significance. However, it was not put to Dr G that he inaccurately recorded information given by the father as to this event. Neither the Facebook page, any police record about the release of information concerning this event or the abusive messages he claims were sent by the mother’s parents are in evidence.
250.For these reasons I am satisfied that the father was involved in the home invasion. I am also satisfied that the father conducted surveillance upon the mother through a private investigation agency until at least June 2014 though I cannot make any other findings concerning the extent of that surveillance. I also find that the father engaged in at least one phone call and sent many threatening and abusive text messages which caused the mother to feel fearful from at least 30 January 2013 to around 20 February 2013 when an ADVO was made for the protection of the mother.
It needs to be understood that the father, the mother, her partner and the single expert all gave evidence about the home invasion. As her Honour’s findings establish, the father was cross-examined about the home invasion and it was common ground that he was not present when it took place.
It follows, and the questions asked make it clear, that the purpose of cross-examination was to establish whether he nonetheless played a role in this event. Indeed, in cross-examination by counsel for the mother, the father acknowledged that he knew the mother accused him of arranging it (transcript, 9 September 2015, page 285). This line of questioning continued for some time and two pages further on the father was asked, and he denied, that he had had any involvement in the home invasion.
That the father’s possible role in the home invasion was understood to be an important fact in issue is further demonstrated by the fact that his counsel cross-examined the single expert on the basis that although the mother alleged the father was involved, there was little evidence to support her belief (transcript, 11 September 2015, page 523).
If for some reason this was not regarded as sufficient to establish that the issue of whether or not the father orchestrated the home invasion loomed large, the following exchange between the primary judge and counsel for the father during counsel’s cross-examination of the mother’s partner puts the issue beyond doubt:
HER HONOUR: Why did you feel fearful?
MR F: From the home invasion.
HER HONOUR: In your mind, do you regard the father as being responsible for that home invasion?
Mr F: To a certain degree, yes.
HER HONOUR: And why is that?
[COUNSEL FOR THE FATHER]: Your Honour, I object to that. [The father] has never been charged with anything. He
MR F: I understand that. These are not criminal proceedings. This – the issue of unacceptable risk of harm
[COUNSEL FOR THE FATHER]: Yes.
HER HONOUR: is a live issue in these proceedings
[COUNSEL FOR THE FATHER]: Yes.
HER HONOUR: with respect to both of the parents.
[COUNSEL FOR THE FATHER]: Yes. In my respectful submission, it calls for speculation on his part.
HER HONOUR: Well, it may or it may not
[COUNSEL FOR THE FATHER]: Yes.
HER HONOUR: and if it does, then the whole issue of what weight you should attach, and you may make submissions about.
(Transcript, 9 March 2016, page 336, line 24 to page 337, line 5)
We are completely satisfied that the primary judge was entitled to make the findings she made about the father’s involvement in the home invasion. Moreover, in our view the gravity of the risk of violence to the mother, her partner and the child, even though he was not present on that occasion demanded that the question of the father’s potential involvement be addressed. The point being that this was an incident of the utmost gravity which would inevitably impact on whether or not it was in the best interests of the child to spend time with his father, even under supervision. (See A v A (1998) FLC 92-800).
The manner in which this ground was argued before us carried the assumption that the decision of the primary judge to make no orders for the child to spend time or communicate with the father rested entirely upon the father’s involvement in the home invasion.
It therefore bears emphasis that when the reasons for judgment of 16 September 2015 and those of 10 August 2016 are read together as a whole, the primary judge’s determination that the father poses such a risk of physical and psychological harm to the child that the need to protect the child extends to making no orders for time or communication, did not stand or fall on whether or not the father was implicated in the home invasion.
There was ample evidence, including that of the single expert Dr G, as to the father’s highly concerning behaviours surrounding his obsessions about the mother including his conduct in attempting to have his claims that the mother and her partner were abusive to the child investigated and justified, which lay at the heart of the central findings made by the primary judge as to the risk the father posed to the child. Viewed in its proper context, the father’s involvement in the home invasion amounted only to an example of the father’s conduct, but was by no means the sole manifestation of the father’s underlying mental health issues and fixed beliefs. In other words, even if there was no home invasion; or if in fact the father was not involved in the home invasion which occurred; there remained ample evidence to support the primary judge’s central findings as to the risks to the child which the father posed.
Ground 1 has not been made out.
Orders for supervised time should have been made
Grounds 2 and 3 were argued together and we will adopt the same approach.
As the terms of ground 3 suggest, in closing addresses on behalf of the father his counsel conceded that the mother posed no risk of harm to the child. However, the primary judge did not accept that this concession represented the father’s true belief, and it was found that he remained paranoid about the risk the mother posed to the child. The expert evidence that his paranoia may increase if orders were made for supervised time was accepted.
The gravamen of grounds 2 and 3 is that if the father’s concession reflected his belief, it necessarily followed that he was no longer pre-occupied with issues to do with the child’s safety in the care of the mother and thus, the child could safely spend supervised time with him. Otherwise, as to the challenge to the adequacy of her Honour’s reasons for the rejection of an order for supervised time, the solicitor for the father properly acknowledged that if her Honour’s finding concerning the father’s involvement in the home invasion was available, the reasons challenge would be diminished. The finding has survived and, as we shall shortly demonstrate, her Honour’s reasons for rejecting supervised time are compelling and could not be clearer.
Her Honour clearly relied upon the following matters:
·The longstanding nature of the father’s beliefs and conduct including:
oThe father’s suspicion during the relationship and his use of a tracking application on the mother’s phone [118] and [119] which he said was “[f]or the mother and child’s safety”;
oThe father’s access to the mother’s telephone records because he wanted to know where the mother was at all times which was “required” for the safety of the child [118];
oHis assertions that the mother was “unstable with the child” during the relationship [119];
oThe father reported to his psychiatrist that “he had every right to be controlling as he was concerned about his son’s well-being” [120];
oThe father hired a private investigator to watch and report on the mother post-separation until at least mid-2014 and potentially into 2015 (when the trial commenced in September 2015); [127], [149], [153];
oThis surveillance resulted in the private investigators entering the mother’s property and recording videos from her back door [129] and the child’s day care centre [131];
oThe father took the child to hospital on a number of occasions asserting the existence of various injuries which were not supported by the doctors’ observations;
oThe father began making complaints to the police about the mother’s conduct toward the child in January 2013 [134] and as at the recommencement of the hearing on 7 March 2016, the father was still agitating for a criminal investigation into what he said were the injuries to the child including agitating for an adjournment on this occasion to permit the investigation to conclude;
oThe father consistently sent abusive and threatening text messages to the mother;
oThe father maintained that the mother had been violent toward him and the child prior to separation including attempting to kill the child and stab him [the father] with a knife on two occasions and a pen on one occasion [154].
·In the event the father was to spend supervised time with the child, he would have to cease interrogating the child and would have to receive mental health treatment for the demonstrated characteristics, however his lack of insight into his own mental ill health and refusal to accept the same suggested to Dr G and her Honour that he was unlikely to engage in this sort of treatment [272].
It is not entirely clear what evidence the father could have given which would have affected this conclusion, particularly in circumstances where her Honour made certain negative credit findings in respect of the father’s evidence (see, for example, at [229]).
Her Honour explained the decision to reject the concession as disingenuous in the following terms:
283.I am of the view that although the father ultimately conceded through his counsel that the child was not at risk of harm in the care of the mother, it is likely that he does not genuinely hold this belief. The manner in which the case was conducted on his behalf including the application for an adjournment only a few days before final submissions on the basis that he still held grave concerns for the child’s safety and wished the investigation to be completed are completely at odds with submissions put on his behalf at the end of the proceedings. I am of the view that the entirety of the father’s conduct from at least the time of separation and throughout the proceedings is consistent with him continuing to hold a firm and fixed belief about the risks posed to the child by the mother.
None of the matters upon which her Honour relied in coming to a view about the concession are challenged. In addition to those matters, for ground 3 to be established, it would be necessary for us to find that the primary judge was obliged to disregard the fact that:
·The concession at best represented the father’s changed instructions proffered after the evidence had closed on a 10 day hearing;
·It was open to the father to lead further evidence as to his changed position but he did not; and
·The father’s views about the risk the mother and her partner posed to the child were central issues in the proceedings and his concession was given in a manner which protected him from being tested on it.
In our view, the father’s concession was so totally at odds with the manner in which he involved the child in ongoing investigations concerning maternal mistreatment (which included an investigation instigated by him and current at the close of the hearing) and the evidence which he gave in the hearing that her Honour was entitled to evaluate the concession in the fashion she did. Any other approach would have been fraught with the risk of appellate intervention.
The effect of this is that her Honour’s findings concerning the risks that supervised time with the father posed to the child were also available. Her Honour said:
296.As the father in my view does not genuinely accept that the mother poses no risk of harm to the child or that he does pose a risk to this child, his paranoia may increase if orders are made for the supervised time. There is a real risk that he may again fail to take up the supervised time available to him. In the opinion of the family consultant, which I accept, this would have an even greater negative impact upon the child than having no time.
As to the reasons challenge, the ratio of her Honour’s decision is tidily summarised at [317] – [318] and [329]. In these paragraphs her Honour said:
317.Having regard to the period of time over which the father engaged in conduct that amounted to family violence against the mother, the nature of the stalking which was highly intrusive and his involvement in the home invasion, I am of the view that there is an real risk that he will continue to engage in such conduct to which the child will be exposed should he and the mother have any form of relationship in the future. This risk is best mitigated by the mother’s proposed orders which provide for the father to have no involvement in the child’s life in the future.
318.The proposed orders of the ICL do involve the safeguard of supervision occurring in a contact centre and restraints on the father’s contact together with the power of arrest. This does reduce this risk of harm to some extent but in my view, an unacceptable risk that the father will engage in family violence still remains. This finding and the negative impact on [the child] of exposure to that violence are highly relevant factors in this parenting dispute.
…
329.Clearly the mother’s proposal is the most drastic proposal a parent can make in parenting proceedings and such orders are never lightly made by a court particularly having regard to the Objects and Principles set out in the Act. However, in this matter the father poses such a risk to the emotional and psychological well-being of the child and lacks such capacity as a parent that it is difficult to conclude that the child will receive a benefit from sharing a relationship with him in the future. Notwithstanding the significant role that the father played in the child’s life in the past and that there are real losses for the child in the orders proposed by the mother, appropriate weight must be given to the need to protect the child from the physical and psychological harm posed by the father. Giving this matter significant weight and applying the other considerations referred to in this judgment, I am of the view that the orders proposed by the mother are in the best interest of the child and for this reason I make the orders set out at the forefront of this judgment.
As we said earlier, her Honour’s reasons for not ordering supervised time are clear and compelling.
Grounds 2 and 3 have not been established.
Other matters weighed in favour of supervised time
In support of ground 5, the father presented a list of matters which he contends her Honour “failed to take sufficiently (properly) into account”. The list comprises matters which were considered by the primary judge but which either were not accepted (for example, the concession made in closing addresses) or were given less weight than the matters which weighed in favour of the father having no time or communication with the child, matters which are factually inaccurate (grounds 5(a)(i), 5(a)(ii) and 5(a)(iv)) and assertions in relation to judicial notice.
The best than can be said for the weight challenges is that the matters contained in the list might (we consider this a theoretical possibility only) have been given greater weight by a different judge in the position of the primary judge. However, her Honour’s approach was available and the attribution of weight is quintessentially a matter for her as the trier of fact. As we explained earlier, a court exercising appellate jurisdiction should be slow to intervene when the matter at issue is solely the weight given to various matters.
The two final matters contained in the list assert that the primary judge wrongly took judicial notice of the stated facts. The assertions of judicial notice are wrong. Properly understood the primary judge did no more than deduce that an order for supervised time and the provision of school reports to the father could create an opportunity for him to locate the mother. Given the father’s history of surveillance, which included the day care centre attended by the child, the deduction was astute. We feel obliged to observe that the challenge raised by the last two matters on the list sits uncomfortably with the father’s attempt to set aside order 6.
Ground 5 has not been made out.
Conclusion and costs
The father has not established error and the appeal will be dismissed.
In the event the appeal was dismissed, an application was made by the ICL that the father pays his costs in the amount of $6,210.00. That order was opposed on the basis that at trial, the father was unemployed and had no assets. However, it was conceded that the father had been able to make arrangements to pay his costs for the appeal and at the time of the hearing before us, he was living abroad.
We are not satisfied that the father is impecunious or that an order for costs in favour of the ICL would occasion hardship. In our view, that the father’s appeal has been wholly unsuccessful justifies a departure from the approach that each party bears their own costs, as well as an order for costs. An order in the amount sought will be made.
The mother did not seek costs against the father.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Kent JJ) delivered on 9 November 2017.
Associate:
Date: 9 November 2017
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