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
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…
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CaseChat Overview and Summary
In Darmadi & Binjori, the father appealed against orders made by the primary judge regarding parental responsibility and the terms of contact with his two children. The father, who had a history of family violence and had not seen his children since 2018, sought shared parental responsibility and visitation rights. The mother sought sole parental responsibility and no contact with the father. The primary judge found that the father had perpetrated family violence and ordered him to complete behavioural courses and anger management counselling, after which the children would spend increasing amounts of supervised and then unsupervised time with him. The mother appealed against these orders.
The legal issues before the court involved whether the primary judge made an error in exercising his discretion in fashioning the contact orders. Specifically, the appeal questioned whether the primary judge correctly assessed the risk of harm to the children if they spent time with their father. The court needed to determine whether the primary judge considered the father’s lack of insight into his violent behaviour, the effectiveness of the proposed behavioural interventions, and whether the preconditions set for contact adequately mitigated the risk of harm.
The court held that the primary judge failed to properly assess the risk of harm to the children if they spent time with their father. The judge did not adequately consider the likelihood of the father again demonstrating family violence and anger, nor the potential harm that could result. The court found that the primary judge did not sufficiently engage with how the preconditions set for contact would mitigate the risk, particularly in light of the father’s lack of insight. As a result, the court found that the primary judge made an error in exercising his discretion, leading to an unreasonable or unjust outcome.
The appeal was allowed, and the orders pertaining to the time the father spends with the children were set aside. The case was remitted for rehearing on the issue of contact. All grounds of appeal were found to have merit, and the costs of the appeal were awarded to the appellant.
The legal issues before the court involved whether the primary judge made an error in exercising his discretion in fashioning the contact orders. Specifically, the appeal questioned whether the primary judge correctly assessed the risk of harm to the children if they spent time with their father. The court needed to determine whether the primary judge considered the father’s lack of insight into his violent behaviour, the effectiveness of the proposed behavioural interventions, and whether the preconditions set for contact adequately mitigated the risk of harm.
The court held that the primary judge failed to properly assess the risk of harm to the children if they spent time with their father. The judge did not adequately consider the likelihood of the father again demonstrating family violence and anger, nor the potential harm that could result. The court found that the primary judge did not sufficiently engage with how the preconditions set for contact would mitigate the risk, particularly in light of the father’s lack of insight. As a result, the court found that the primary judge made an error in exercising his discretion, leading to an unreasonable or unjust outcome.
The appeal was allowed, and the orders pertaining to the time the father spends with the children were set aside. The case was remitted for rehearing on the issue of contact. All grounds of appeal were found to have merit, and the costs of the appeal were awarded to the appellant.
Orders
Orders of the court
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Background
Background to the litigation
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…
Evidence
Evidence Before The Court
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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