Dewan & Ganesh

Case [2024] FedCFamC1A 156

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dewan & Ganesh [2024] FedCFamC1A 156   

Appeal from: Dewan & Ganesh [2024] FedCFamC2F 592
Appeal number(s): NAA 131 of 2024
File number: BRC 10206 of 2021
Judgment of: SCHONELL J
Date of judgment: 13 September 2024
Catchwords: FAMILY LAW – APPEAL – Appeal from interim parenting orders – Apprehended bias – Discretion – Weight – Where the primary judge did not err in his treatment of s 60CC of the Family Law Act 1975 (Cth) – Appeal dismissed
Legislation: Family Law Act 1975 (Cth) s 60CC
Cases cited:

Baisman & Cartmill [2022] FedCFamC1A 36

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Crabman & Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCACF 146

Dewan & Ganesh [2024] FedCFamC2F 592

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369; [2023] HCA 15

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs: [45]
Date of hearing: 5 September 2024
Place: Sydney
Solicitor for the Appellant: Guy Sara & Associates
The Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Ms Conte-Mills
Solicitor for the Independent Children's Lawyer: Phillip A. Wilkins & Associates

ORDERS

NAA 131 of 2024
BRC 10206 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR DEWAN

Appellant
AND:

MS GANESH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed 30 May 2024 is dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

  1. By Notice of Appeal filed 30 May 2024, the appellant father (“the appellant”) appeals interim parenting orders made by the primary judge in 2 May 2024.

  2. The appeal was supported by the Independent Children’s Lawyer (“the ICL”). The respondent mother, despite having notice of the appeal, did not file a…

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AGLC
Dewan & Ganesh [2024] FedCFamC1A 156
Case
[2024] FedCFamC1A 156
Decision Date

CaseChat Overview and Summary

Dewan & Ganesh involved an appeal from interim parenting orders made by the Family Court of Australia. The parties, Mr. Dewan and Ms. Ganesh, were married and have two children, X and Y. The dispute centred on allegations of family violence and excessive discipline by Ms. Ganesh, which were corroborated by the children's interviews and a Family Report prepared by a Court Child Expert. The primary judge had made interim orders providing for increasing periods of time with Mr. Dewan during school holidays. The appeal focused on the primary judge's treatment of section 60CC of the Family Law Act 1975 (Cth), which deals with the best interests of the child.

The court was required to decide whether the primary judge had erred in his interpretation and application of section 60CC. Specifically, the appeal argued that the primary judge had not given sufficient weight to the allegations of family violence and excessive discipline. The court also considered whether the primary judge was correct in his findings regarding the children's safety and welfare, and if there was any apprehension of bias.

The court found that the primary judge did not err in his treatment of section 60CC. The primary judge had carefully considered the evidence, including the Family Report, the children's interviews, and the concerns raised by both parents. The court held that the primary judge had appropriately balanced the competing interests of the children and made orders that were in their best interests. The court dismissed the appeal, noting that the primary judge's orders were well-founded and that there was no apprehension of bias.

The court ordered that the Notice of Appeal filed on 30 May 2024 be dismissed.

Orders

Orders of the court

NAA 131 of 2024

BRC 10206 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DEWAN

Appellant

AND:

MS GANESH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The Notice of Appeal filed 30 May 2024 is dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

As their Honours observed in Crabman & Crabman (No 2) (2020) 61 Fam LR 191:16.Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 at [117]). Unless this is done, the impression created by the defective course remains and undermines public confidence in the administration of justice (Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [28]). BACKGROUND The proceedings before the Court relate to the parties’ two children; X and Y. The parties were married in 2008 and separated on a final basis in December 2020. The parties divorced on 14 March 2022. The parties appear to have lived for a time in New Zealand and then Queensland. At the time of the separation the respondent and the children moved to Sydney, initially without the knowledge of the appellant. There would appear to have been a period of no time between the children and the appellant until orders were made in August 2021 which provided for increasing periods of time with the appellant. At the time of the hearing the respondent lived in Sydney and the appellant lived in Region J. On 27 April 2022, orders were made for the children to spend time with the appellant during school holidays with changeover to take place at City G Police Station. The matter next came before the Court on 4 August 2023 when a Recovery Order was made directing the appellant to return the children to the respondent’s care. On 10 October 2023, a Family Report was prepared by a Court Child Expert. Relevantly, the Family Report recorded:20.[Mr Dewan] (aged 41 years) was polite and engaged positively during his interview. [Mr Dewan] appeared child focused and showed reflective parenting capacity on the importance of [X] and [Y]’s relationship with their mother. [Mr Dewan] did, however, struggle to explore the allegations made against him in this assessment and, at times, appeared to gloss over concerns raised around his possible contribution to placing the children at risk of harm as a direct result of family violence, parental conflict and excessive alcohol consumption. …26.[Ms Ganesh] reported being the victim of physical and psychological abuse perpetrated by [Mr Dewan] throughout their relationship and post separation, whereby she fled Queensland with the children to escape family violence. [Ms Ganesh] described a cycle of family violence, which had escalated to physical assaults in the form of strangulation in front of the children, and threats to lethally harm [Ms Ganesh]. [Ms Ganesh] also reports experiencing coercive and controlling behaviours whereby [Mr Dewan] would dictate the day-to-day functioning of the home, be the sole decision maker, and set high expectations for [Ms Ganesh] in relation to her parenting and upkeep of the household. [Ms Ganesh] reports that [Mr Dewan’s] acts of violence escalated to physical assaults when his expectations were not met, as well as when he would be under the influence of alcohol.…28.[Ms Ganesh] reports that [Mr Dewan] verbally and physically assaulted her in the presence of the children and gave an example whereby [Mr Dewan] allegedly chocked [Ms Ganesh] while [X] and [Y] were in the room, as dinner was not prepared on time. [Ms Ganesh] says that [X] has copied his father’s behaviours, for example, telling [Ms Ganesh] that she is “good for nothing”. Despite [Y]’s young age, [Ms Ganesh] still held concerns for his exposure to family violence, stating that [Y] would comment on his father stating “dada is bad”.29.[Mr Dewan] categorically denies perpetrating family violence towards [Ms Ganesh], and described trying to “control violent situations, not control her”, when [Ms Ganesh’s] allegations were raised with him. [Mr Dewan] denies using any form of physical abuse towards [Ms Ganesh], however, acknowledged that he had hit [Ms Ganesh] in 2010, when they were in the car together, stating that this was to prevent [Ms Ganesh] driving into oncoming traffic. [Mr Dewan] believes that the historic protection order in 2012, was in place based solely on allegations made by [Ms Ganesh]. When allegations of strangulation were raised with [Mr Dewan], he acknowledged that he may have “held her” for fear that she would run away from the house, however, believes that this is not an act of strangulation, as there was no intent, in his account, to kill [Ms Ganesh]. [Ms Ganesh] acknowledged that he would belittle [Ms Ganesh] when they had arguments; referencing times where he had made jokes at [Ms Ganesh’s] expense and stature.…31.The primary concern for [Mr Dewan] in this matter is the children’s exposure to excessive discipline whilst in the care of [Ms Ganesh]. There has been recent police involvement following a disclosure made by [X], whereby it is alleged that [Ms Ganesh] pushed him, and then hit him across the face with a spoon (used for cooking), leaving a scar on [X]’s face. [Mr Dewan] stated that [X] showed him photographs of the injury, which he took on his tablet straight after he was struck by his mother. It appears that [Mr Dewan] held concerns for [X]’s sense of safety in the care of his mother following the alleged assault, reporting that [X] withheld this information from him for two weeks. [Mr Dewan] also holds concerns that [Ms Ganesh] did not report this incident to him to explain what had occurred. Both parents confirmed that [X] had been interviewed by police, and that [Y] will also be interviewed by police. Subpoenaed records from police state that [X] and [Y] were not at risk of harm in the care of their father, and considerations were being made to interview [Y] as part of their investigation. Subpoenaed records from The Department of Communities and Justice (The DCJ) confirmed that the triage record was closed on the basis that the children were in the care of their father at the time of receiving the report.32.[Ms Ganesh] confirmed that she had caused an injury to [X]’s face, however, appeared to struggle with her memory in recounting the incident. [Ms Ganesh] could recall that the children were screaming upstairs, and that she saw [X] “strangling” [Y]. [Ms Ganesh] stated that she reacted by pulling [Y] away and then pushing [X] hard. [Ms Ganesh] could not recall how [X] sustained the injury to his face, however, acknowledged that she was holding a plastic spoon, which must have come into contact with his face when she pushed him. [Ms Ganesh] stated that she then treated the injury, as [X] was bleeding, and that she did not discuss the incident with the children afterward. [Ms Ganesh] holds concerns that if she faces police charges, then this may impact her Australian citizenship application. …64.The observations of [X] and [Y] with their parents would suggest that they felt comfortable and familiar in the presence of both parents. The children seemed to have a very close and loving relationship with their father, and [Mr Dewan] appeared to be very thoughtful about and insightful into the children's needs. It would appear that the children’s desire is to spend more time with their father, and they expressed a genuine sadness when saying goodbye. This is consistent with information gathered in the children’s interviews whereby they spoke fondly of their father, and were seeking more time with him.65. It would appear that the children have a complex relationship with their mother, on the basis that she is their primary caregiver, whom they showed warmth and affection to, however, they also raised concerning information about her being physically violent towards them. The Court Child Expert is of the view that the children have been placed at risk of harm in the care of their mother based on the children’s interviews, [Ms Ganesh’s] partial admission to the use of excessive discipline, and subpoenaed material from The Department of Communities and Justice (The DCJ). Parental use of harsh physical discipline can have a range of deleterious impacts on a child. These detrimental impacts are not dissimilar to the negative impacts of family violence on a child which include the risk of the child incurring a serious physical injury, poor educational outcomes, social isolation, poor self-esteem and mental health issues. [Ms Ganesh’s] excessive discipline/violence towards the children may also lead to the children refusing a relationship with their mother as they get older or rebelling against her, and potentially engaging in risk taking behaviours throughout their adolescence.66.In light of concerns raised in relation to [Ms Ganesh’s] use of excessive discipline towards the children, it is positive that she is open to accessing support to learn better ways to respond to challenging behaviours. [Ms Ganesh] also acknowledged that sharing more of the parental care with [Mr Dewan] would benefit her wellbeing which, in turn, may increase her parenting capacity. [X] may also benefit from individual counselling to help him develop a relationship with a safe and trusted adult, who can help [X] make sense of his experiences, and assist him in his relationship with his mother.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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