Darmadi & Binjori
[2023] FedCFamC1A 29
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Darmadi & Binjori [2023] FedCFamC1A 29
Appeal from: Binjori & Darmadi [2022] FedCFamC2F 1503 Appeal number(s): NAA 243 of 2022 File number(s): PAC 3257 of 2019 Judgment of: TREE J Date of judgment: 23 March 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders providing for the children to spend time with the father upon certain preconditions – Assessment of risk – Where there were obvious deficiencies in the risk assessment process undertaken by the primary judge – Whether the primary judge failed to determine a material issue – Where the primary judge failed to properly engage with a central issue in the mother’s case of the father’s lack of insight, which failure is in the nature of jurisdictional error – Adequacy of reasons – Where there is no explanation in the reasons for judgment of how the preconditions would work to sufficiently mitigate the risk – Appeal allowed – Orders pertaining to the time which the father spends with the children set aside – Remitted for rehearing on that issue – Costs certificated issued. Cases cited: Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Number of paragraphs: 32 Date of hearing: 9 March 2023 Place: Cairns (via video link) Solicitor for the Appellant: Legal Aid NSW Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Independent Children's Lawyer: Mr Francis Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
NAA 243 of 2022
PAC 3257 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DARMADI
Appellant
AND: MR BINJORI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE J
DATE OF ORDER:
23 march 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 4 to 13 of the orders made by the primary judge on 10 October 2022 are set aside.
3.The issue as to what, if any, time the children should spend with the father is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
4.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.
5.The Court grants to the respondent and the Independent Children’s Lawyer 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 and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
6.The Court grants to the parties and the Independent Children's Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
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 Darmadi & Binjori has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
This is an appeal brought by Ms Darmadi (“the mother”) from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 10 October 2022. Those orders provide for the mother to have sole parental responsibility for the parties’ two children, who are to live with her and, upon certain things occurring, commence to spend supervised time with Mr Binjori (“the father”) with the potential of moving to unsupervised alternate weekend time, if further things have occurred. The orders under appeal are those establishing the arrangements for the children to spend time with the father.
The father opposes the appeal, but the Independent Children’s Lawyer (“ICL”) supports it, having also supported the mother’s position at trial before the primary judge.
For the reasons which follow, the appeal will be allowed.
BACKGROUND
Both the mother and the father were aged 32 at the time of trial. They commenced their relationship in 2008, married in 2012 and separated in March 2018 after a domestic violence incident, which resulted in the father being restrained by an Apprehended Domestic Violence Order (“ADVO”). The two children of the relationship were born in 2014 and 2013, and are currently 10 and 9 years of age. At the time of trial, the children had not spent any time with their father since 2018, a period of four years.
The primary judge found that the father had perpetrated family violence on the mother during the relationship (at [24]), and has been the subject of various ADVOs. Particularly the father is the subject of a final ADVO for a term of five years for the protection of the father’s current partner’s 12 year old child, arising from a sexual assault allegation. Notably, the father failed to disclose this information in his material before the primary judge, which was only discovered in subpoenaed material.
The father commenced these proceedings in July 2019. A family report was completed by Mr E which was in evidence before the primary judge, and Mr E was cross-examined.
At trial, the mother sought orders that she have sole parental responsibility for the children, that the children live with her, and spend no time with the father. The Independent Children’s Lawyer supported the mother’s case and the orders sought by her.
For his part, the father initially sought orders that the parties share parental responsibility for the children, who would live with the mother, but spend time with him every second weekend from Friday to Sunday, and half of the school holiday periods. However, during the trial the father gave evidence that he consented to an order for the mother to have sole parental responsibility and that he would do whatever was asked of him in order to see his children again, including undertaking behavioural courses and a period of supervision.
On 10 October 2022, the primary judge delivered his reasons for judgment and made the orders the subject of this appeal. Particularly, the primary judge ordered the father to complete a 20 week men’s behaviour change program and 12 weeks of anger management counselling. The orders stipulate that upon the father completing half of each, the children would then commence to spend two hours per week with him, supervised by a children’s contact service. Upon the completion of the men’s behaviour change program, the counselling and at least 6 months of supervised time, and the provision of a report from the supervision service that “the children’s time with the father has gone well”, that time would progress to unsupervised time on alternate weekends from Friday to Monday, together with special occasions and, after 18 months, half of the school holidays. Those are the specific orders the mother appeals.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
The mother’s Amended Notice of Appeal filed 1 February 2023 extends to only three grounds, which, as her counsel accepted, really make the same complaint from three perspectives.
The grounds are:
1.The primary judge failed to properly consider how the facts raised an unacceptable risk of harm if the children were to spend time with the father by failing to properly consider whether the father had demonstrated a lack of insight into, and failure to acknowledge, family violence.
2.Further or alternatively, the primary judge constructively failed to exercise his jurisdiction by failing to address the mother’s substantial and clearly articulated submission about the significance of the father’s lack of insight into, and acknowledgment of, the impact of his behaviour on the children and the mother.
3.Further, or alternatively, the primary judge failed to adequately expose the requisite reasoning in support of his finding that the orders under appeal sufficiently ameliorated any risk posed to the children by the father spending time with them.
To understand the common complaint raised by these grounds, a little further information is required. At trial, the mother (supported by the ICL) contended that during their relationship the father had perpetrated family violence on her, sometimes in the presence of the children. She further contended that the father lacked insight into the likely impact of his family violence on the children, such that the risk of harm which he posed to them was an unacceptable one. It was the father’s contended lack of insight which was front and centre stage of her case that the children should spend no time with him.
Whilst the primary judge was clearly unimpressed with the mother’s evidence, nonetheless he found that the father had “historical behaviours around anger management and family violence” (at [31]) and “that the father had perpetrated family violence on the mother during their relationship” (at [24]).
However there was little discussion by the primary judge as to what, if any, insight the father had as to the impact on the children’s exposure to his family violence. The only reference appears to be when the primary judge was discussing the mother’s case at [18] as follows:
18.On the topic of supervised time, counsel for the mother submitted a condition precedent to the father spending time with the children must be evidence of an intention to change and the completion of anger management therapy. It was further submitted that there is no evidence of an intention to change at present and that given the father is so unpredictable and is such a “loose cannon”, supervision is unlikely to avoid exposure of the children to family violence. It was further submitted the father has failed to return the children, has locked the mother and the children in their house in City F, and it was further submitted the father has caused the mother to be fearful and lacking in confidence and appears to have little insight into the damaging effects of his actions.
(Emphasis added)
As I have already indicated, the primary judge imposed preconditions to the father spending supervised time, and then unsupervised time, with the children. The preconditions for supervised time commencing were that the father had completed one half of both a “20-week Men’s Behavioural Change course designed to assist men who are perpetrators of family violence” (Orders 4 and 7) and a 12 week course of psychological counselling in respect of his anger management (Orders 5 and 7). The preconditions for unsupervised time were completion of the course and counselling, the completion of 6 months of supervised time, and “a report from the supervision service that indicates the children’s time with the father has gone well, in that the father and the children appear relaxed and happy in their relationships with one another” (Order 10(c)).
Although not the subject of any ground of appeal, counsel for the mother and ICL were nonetheless critical of the potential under the orders for permanent supervision if no supervisor’s report in the required terms was forthcoming, the delegation of the commencement of unsupervised time to an unspecified supervisor, and the immediate progression from brief supervised time to a block of three nights per fortnight of unsupervised time, contrary to the expert evidence, which had suggested a transition utilising a period of time during the days, then including overnights, before culminating in the three night block. Whilst it is therefore unnecessary to discuss them further, those criticisms nonetheless appear to have merit.
Rather the focus of the submissions of both the mother and the ICL had as their starting point the implicit acceptance by the primary judge that the father posed a risk of harm from family violence to the children, which could only be ameliorated by the preconditions recited above, namely that the risk to the children, even of professionally supervised time, required his substantial attendance of the course and counselling, and the risks of unsupervised time required their completion, the effluxion of six months of supervised time, and the relevant supervisor’s report. That much appears unarguable, even though the primary judge did not himself use terminology such as “unacceptable risk” in discussing the preconditions.
Next, the mother and ICL focussed on the issue of the father’s lack of insight, which, although central to the mother’s case, was not directly, and perhaps not even indirectly, addressed by the primary judge. The reasons why the father’s insight was critical (leaving aside the obvious reason that it to some degree predicts a repetition of such conduct) in this case was because the father denied in cross-examination that he needed anger management counselling as follows:
[COUNSEL FOR THE MOTHER:] One of the recommendations in that report was that you should either undertake some counselling in relation to anger management or a course in taking responsibility. Let me ask you about the counselling to begin with. Have you since that time undertaken anger management counselling?---
[THE FATHER:] I did not – I did not need that. I didn’t need counselling during that period of time, and I didn’t know that was compulsory to do the anger management course, so I didn’t do it. But from now I’m willing to do. It’s only – I’ve realised only a 14 day course. I’m willing to obtain the course. I’m willing to do it, because I really want to see my children. I want to do everything to prove that I’m not harmful to the community man like what she’s claiming. She’s – she’s a liar and I can prove that.
[COUNSEL FOR THE MOTHER:] Right. So to answer my question ---?---
[THE FATHER:] She has been lying.
[COUNSEL FOR THE MOTHER:] To answer the question ---?---
[THE FATHER:] The question to that, no counselling. No course was undertaken.
(Transcript 8 February 2022, p.14 lines 21–35) (Emphasis added)
The impression that evidence gives is not only a rejection by the father of the need for any counselling, but also that he only accepted undertaking it because he “really” wants to see his children and the course was short. That is, of course, redolent of a perfunctory, going through the motions, approach to any such course.
Further, Mr E’s evidence in respect of the need for insight generally was as follows:
[COUNSEL FOR THE ICL]: And, Mr E, just in relation to these particular programs, if the father, for instance, who enters into these programs simply does not believe that he was responsible for any violence, do these programs have any success?---
[MR E:] Their success is – would be – look, they may still have some success, but the success would be quite limited because, I think as most people accept, the motivation for psychological counselling or group process is usually, you know, a necessary ingredient for the full worth of the program for it to be successful. But if somebody goes into a program and doesn’t believe that they really have done anything and they really shouldn’t be there, they’re going to get a minimal outcome from it. Yes.
HIS HONOUR: Mr E, can I just ask this question: is it the case that some men don’t understand what family violence is and that by doing the program they then understand, “Look, some of the behaviours that I was exhibiting I didn’t really realist the impact that might have had on my partner and I didn’t really realise what family violence – but now having done the program I understand the behaviours and that some of my behaviours are family violence and I will get something out of it”?---
[MR E:] That’s a – look, that’s a very valid point, your Honour. And, you know, on occasions that does happen. I have – I have seen clients, male clients over the years who have actually made those statements to me after having undergone programs such as this. So they – I believe they can be beneficial even if the client starts out not really believing he can get a lot out of it. I think they can. One of the – I would suggest that one of the indicators is also whether a client remains compliant with attending all group sessions. What tends to happen, of course, is that people who don’t really believe in it may attend one or two sessions and then they become very lax in attendance and it takes them a long, long time to finish the program. So one indicator could very well be attendance at all times and turning up on time and the reports of the program – the group supervisor as to the person’s participation. So I think – I would agree with that that that is possible.
(Transcript 18 March 2022, p.194 lines 5–33) (Emphasis added)
The criticisms which the mother and ICL advanced by reference to that evidence were twofold. Firstly, that absent insight as to a need to change – denied by the father as set out above – the prognosis for change was poor; secondly, that it was only possible, not probable, that participation in such courses may produce insight.
It was further said that, given that evidence, and the implicit acknowledgment by the primary judge that, at the time the orders were made, the father otherwise presented as an unacceptable risk of harm, at the very least the primary judge’s reasons were deficient as the reasoning for the decision is not able to be ascertained, nor is justice (to the mother’s case) seen to have been done (Bennett and Bennett (1991) FLC 92-191 at 78,266).
One necessarily asks, by what chain of reasoning was the primary judge satisfied that the two sets of preconditions sufficiently ameliorated an unacceptable risk to the point where it was acceptable, especially given the evidence discussed above? Absent an answer being evident – and none was advanced by the father – at least Ground 3 must succeed.
Further, it is clear that the primary judge therefore failed to properly engage with the central issue in the mother’s case of the father’s lack of insight about the impact of his violence and anger, which failure is in the nature of jurisdictional error (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33) as Ground 2 correctly contends.
Finally, there were obvious deficiencies in the risk assessment process undertaken by the primary judge. It bears repeating what five judges said recently in the Full Court decision of Isles & Nelissen (2022) FLC 94-092 (“Isles”) at [12]:
12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child (at 82,713-82,714) and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm (at 82,714)…
(Emphasis added)
I also venture to repeat what I earlier said in Bant & Clayton (2015) 53 Fam LR 621 at [171], cited in Isles at [35], as follows:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
(Emphasis added)
The primary judge did not undertake any assessment of the likelihood of the father again demonstrating family violence and anger, or the prospect and magnitude of harm to the children should he do so. However equally significant is the absence of any reworking of the risk assessment factoring in the effect of the two sets of preconditions. In this case it was essential, in order for a proper risk assessment to be undertaken, to grasp the nettle and engage directly with how – if at all – the two sets of preconditions sufficiently ameliorated the relevant risk, here, seemingly being the likelihood of the father again demonstrating family violence and anger, rather than the prospect and magnitude of harm to the children should he do so.
Whilst it is true that the primary judge engaged with the legislative provisions, and found there was a need to protect the children from physical and psychological harm (at [32]) caused by being exposed to family violence (at [34]–[35]), and although his Honour then stated that the measures proposed by the family consultant would ameliorate these risks to the children (at [33]–[35]), there is no explanation of how those conditions would, on the facts of this case, and particularly the father’s lack of insight, work to sufficiently mitigate the risk.
The lack of insight by the father was essentially what the case before the primary judge was about, and yet the risk assessment does not really touch upon it at all. It follows then that Ground 1 also has merit.
OUTCOME
All grounds of appeal enjoy merit and hence the appeal will be allowed, and the orders pertaining to the time which the father spends with the children set aside. In that event, all parties accepted the matter would need to be remitted for rehearing on that issue.
COSTS
In the event the appeal succeeded on a question of law all parties sought costs certificates both for the appeal and the rehearing. Those certificates are appropriate in the circumstances.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 23 March 2023
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