Dewan & Ganesh
[2024] FedCFamC1A 156
•13 September 2024
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 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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:
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.
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 Summary of Argument. She nevertheless appeared and made some very brief submissions in reply.
The Notice of Appeal advanced seven grounds. Ground 3 was abandoned in the Summary of Argument and Ground 5 was abandoned during the course of the appeal. A number of the grounds contended apprehended bias.
Consistent with authority, where an appeal contends allegations of apprehended bias and/or a miscarriage of justice then such a ground must be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). Irrespective of the correctness of the result, in the event the appellant is successful on those grounds, then a new trial should be ordered.
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.
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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.
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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.
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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.
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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.
The report writer made the following recommendations:
82.That the Court makes a determination about whether [Ms Ganesh] should have sole parental responsibility or whether the parents should have shared parental responsibility for the children.
83.That the children live with [Ms Ganesh], ideally in Sydney.
84.If [Mr Dewan] relocates to Sydney, or if it is determined that the children and [Ms Ganesh] should relocate back to Queensland, it is recommended that the children spend time with their father for up to five nights per fortnight that includes weekday nights and weekend nights. The parents may wish to consider a rotating schedule whereby in week one the children spend from the conclusion of school on Thursday to the commencement of school Monday in the care of [Mr Dewan]. In week two, the children spend from the conclusion of school on Thursday to Friday morning with [Mr Dewan]. It is further recommended that both parents be permitted to attend any sporting/extra-curricular activities for the children, and that both parents be permitted to attend any schooling functions for the children.
85.If [Mr Dewan] remains living in Queensland, and the children remain living in Sydney, it is recommended that that the children spend half the school holidays in Queensland with [Mr Dewan], and that the children be permitted to spend one weekend per school term from Friday after school to Sunday afternoon in Queensland with [Mr Dewan], and that [Mr Dewan] be permitted to spend one weekend per school term in Sydney with the children from Friday after school to the commencement of school Monday.
On 15 November 2023, the matter came before the Chief Justice when orders were made for the parties to attend dispute resolution and for the matter to be listed for a final hearing before the primary judge on 2 May 2024 for two days. The Court made directions for the parties to file Amended Applications, Responses and affidavits for the final hearing. The Chief Justice noted that the parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for representation.
The appellant complied with the directions for the filing of an affidavit and Amended Initiating Application. His affidavit comprised some six pages of evidence and annexures. He also filed on 9 April 2024, a short affidavit dealing with interim parenting matters. The respondent did not comply with the directions. She did not file an Amended Response but did file, on 29 April 2024, a very short affidavit comprising barely two pages responding to the appellant’s affidavit filed 9 April 2024. Her affidavit was prepared without the benefit of legal assistance.
To observe that the evidence in the parties’ affidavits was sparse would be an understatement. The appellant referred to an incident in April 2024 between the eldest child and the respondent asserting that the eldest child told him that the respondent had strangled him. He said the police were called, the respondent was taken into custody and an ADVO issued. He says he then flew to Sydney and collected the eldest child. The respondents two page affidavit in reply denied she strangled her son but otherwise said little else.
On 2 May 2024, the matter was listed for the first day of the final hearing before the primary judge. The transcript reveals that at the commencement of the hearing, the primary judge enquired of the respondent as to whether or not she knew she was entitled to representation as a consequence of the allegations of family violence. The respondent indicated that she was aware that she could obtain legal representation but was not aware that it would come at no cost to her, saying that she had no idea about that.
The primary judge then addressed all of the parties, including the ICL, about whether they were able to resolve the matter in circumstances where his Honour was not satisfied that the respondent clearly understood her entitlement to Legal Aid.
The primary judge made some observations to the parties about what he thought a court might do if it were hearing the parenting case and what might be the outcome in relation to the financial matters. The primary judge then stood the matter down at 10.24am to enable the parties to have some discussions.
The matter was called again at 2.01pm and the Court was advised that the parties were unable to resolve the matter. The primary judge enquired of the respondent as to the criminal charges (presumably a reference to the ADVO) and said that his Honour had read in the Family Report allegations of excessive discipline and asked the respondent whether the charges related to that to which the respondent replied yes. She later advised the Court that she had spent a night in custody.
The appellant’s solicitor then advised the Court that the matter was listed for a final hearing in 2024. The primary judge then said that he could not see how the criminal charges the respondent was facing were in the best interests of the children and that they were charges the Court would not permit pursuing if it had jurisdiction. The primary judge urged the parties to again seek to resolve the proceedings and stood the matter down at 2.22pm.
The matter was recalled at 3.03pm and the primary judge then heard submissions from each of the parties and the ICL and proceeded to deliver an ex tempore judgment making orders that the mother have interim sole parental responsibility, the children live with her, the eldest child spend time with the father in accordance with his wishes and that the youngest child spend time with the father on alternate weekend and during school holidays.
Relevantly, for the purposes of this appeal the primary judge recorded the following in the reasons for judgment in Dewan & Ganesh [2024] FedCFamC2F 592 (“the judgment”):
5.The ICL and father’s proposed parenting orders were ones to the effect to change the current position so that the elder child would live with the father and spend time with the mother in accordance with his wishes. The father is currently living in Queensland. The effect of this order would be to split the two children from each other and from the mother’s family in Sydney who had been providing support to the mother and clearly have a relationship with the children.
6.The proposed parenting orders apparently intended that the regime for the younger child would continue and had some constraints, sought a fresh hearing date and noting that there were criminal charges against the mother which is listed for a hearing [in late] 2024.
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8.The mother indicated in open Court, contrary to views expressed in an affidavit she filed without the benefit of legal representation, that she wished the two boys to live with her in New South Wales although she expressed concern as to the behaviour of the older child. The Court was informed that since early 2024 [X] has been living with the father in Queensland and has not been attending school.
10.The solicitor for the father acknowledged that splitting the children would be a most unusual thing to do but suggested that this was one of those rare occasions where it was necessary. The ICL also identified that there had been an ADVO obtained against the mother concerning [X] but the Court was informed that none of the conditions prevented [X] living with the mother or spending time with her. The Court was informed that the criminal charges to be heard [in late] 2024 concerned the subject matter of the discipline discussed at length in the family report.
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16.In relation to the making of parenting orders, the Court must take into account the primary considerations in section 60CC of the Act and give greatest weight to the paramount consideration to preventing physical or psychological harm to the children or the children being exposed to abuse, neglect or family violence. The material identified in the family report identifies serious allegations by the mother of family violence of a physical kind including alleged strangling. There are admissions in the family report by the father in respect of physical interaction with the mother of a kind that would identify family violence has occurred. It is not necessary or appropriate for a Court to make actual findings in that regard.
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32.The Court is not aware of the whole of the evidence that is before the DPP, and those matters being fixed for a final hearing [in late] 2024. On the material before the Court in relation to detailed discussion before the family report writer and the views expressed by the children, the Court is firmly of the view that pursuit of the criminal prosecution against the mother is not in the best interests of the children. It is much to be regretted that there has not yet been passed legislation that permits this Court to prevent prosecutions being pursued in state Courts where there is a clear overlap with Family Court proceedings.
33.To permit the pursuit of a prosecution against the mother in circumstances where the children clearly identified to the family report writer as to having a meaningful and loving relationship with the mother, and where there are circumstances where the Court has not yet been able to determine in respect of very serious allegations of family violence and where there has been clearly a withholding of the children by the father, it was not appropriate or in the best interests of the children for the mother to be the subject of these criminal proceedings in respect of the conduct identified in the family report. If the Court had jurisdiction to do so, in this case, it would restrain that prosecution. The Court proposes to take the next best course that it can which is to identify a notation that it would have taken that course and ensure that this is drawn to the attention of the prosecutor and the presiding Magistrate if the matter is pursued.
THE APPEAL
As identified earlier, I propose to deal first with the grounds that address an apprehension of bias on the part of the primary judge. The appellant’s Summary of Argument linked Grounds 4, 6 and 7 so they will be dealt together.
GROUNDS 4, 6 AND 7
4.The learned trial judge erred by displaying an apprehended bias towards the Applicant Father.
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6.The learned trial Judge implicitly gave an ultra vires advisory opinion to the relevant Magistrate of the Local Court of NSW pursuant to Notation C of the orders dated 2 May 2024.
7.The learned trial Judge implicitly gave an ultra vires direction to prosecutors on the record in the Local Court of NSW as to conduct of their case against the Respondent Mother pursuant to Notation D of the orders dated 2 May 2024.
The appellant’s Summary of Argument in support of Ground 4 contends, in the following terms:
13.His Honour in the absence of all of the evidence concerning the Mother’s charges, nevertheless made quasi-directions to the Prosecuting Authorities and ultimately to the Magistrate that shall preside.
14.It is submitted that it can reasonably be apprehended by the lay observer that His Honour has on the public record, when His Honour concedes that the Court did not have all the evidence, that His Honour was suffering from bias favouring the Mother’s position, and by implication to the detriment of the Father’s position. This is manifest in Notations C & D.
15.The transcript implicitly supports the submission that His Honour was suffering from bias favouring the Mother’s position, and by implication to the detriment of the Father’s position:
HIS HONOUR: I intend saying, Mr Sara, something about those criminal charges. They ordinarily should not have been pursued. But put that to one side, unfortunately this court doesn’t have jurisdiction, which it should have, to bind the DPP. But it’s one where having seen the contentions and the children’s reactions to the family report writer, it is outrageous for there to be a pursuit of criminal proceedings referable to the circumstances identified in the family report. And I certainly intend to say something about that if it is to be pursued
HIS HONOUR: Very well... I am very troubled by the pursuit of the criminal charges referable to the discipline. They are disproportionate, on one view, to the circumstances, and certainly not something in the best interest of the children.
16.If this argument is accepted by this Court then this matter should be remitted to another Division 2 Judge.
The appellant’s Summary of Argument in relation to Grounds 6 and 7 merely stated, “The Appellant makes these assertions in the context of Ground 4.”
The Notations are as follows:
C.That there are criminal charges pending against the mother fixed for a final hearing in late 2024, that were the subject of extensive discussion in the Family Report dated 10 October 2023 and that is not in the Court’s opinion in the best interests of the children for this prosecution to be pursued, and if the Court had the power to do so, would restrain this criminal prosecution permanently.
D.The Court expects a copy of these orders and copy of these notations are to be sent by the ICL to the State DPP or the Local Court prosecutor and expressly requests that these notations are drawn to the attention of the hearing Magistrate, if the matter proceeds in that Court.
On the hearing of the appeal, the appellant’s solicitor sought to rely on the appellant’s Summary of Argument. His oral submissions on this aspect of the appeal went no further than repeating what is contained in the Summary of Argument. The ICL’s submissions took the matter no further.
The apprehended bias test requires the establishment of two limbs (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”)). In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369 Kiefel CJ and Gageler J held as follows:
37.The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.
38.Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(Footnotes omitted)
The matters said to give rise to an apprehension of bias are said to be the making of the Notations and the comments by the primary judge during the hearing. When properly analysed, the comments do no more than herald what the primary judge did by the making of the notations.
To succeed, the appellant must satisfy the ‘double might’ test. The appellant did not with precision identify the factor or factors that which might lead the primary judge to decide the matter other than on its legal and factual merits nor did the appellant articulate the logical connection between that factor or factors and the apprehended deviation from deciding that question on its merits or assess the reasonableness of that apprehension through the perspective of a fair-minded lay observer.
By failing to do so, the ground must fail. It is to be observed in passing that the appellant has not identified how the comments made by the primary judge in so far as they relate to charges brought by the NSW Police give rise to an apprehension of bias against the appellant. The contention that the notations are ultra vires advisory opinions or directions has no foundation. They are neither.
It is to be further observed that whatever might be said about what the primary judge said in the passage of the transcript relied upon, the primary judge, before delivering his ex tempore reasons, invited the appellant’s solicitor to make any further submissions. He elected not to do so. At no time thereafter did the solicitor for the appellant raise any objection or make any application that the primary judge recuse himself. By failing to raise any objection or make any application for recusal, the appellant waived his complaint of apprehended bias arising out of the comments made by the primary judge (Vakauta v Kelly (1989) 167 CLR 568). There is no merit to the complaint of apprehended bias arising out of the comments made by the primary judge.
Grounds 4, 6 and 7 are without merit.
GROUNDS 1 AND 2
The appellant relies on two grounds asserting error in the exercise of the primary judge’s discretion as to the attribution of weight. The limits to appellate intervention are well established (see House v The King (1936) 55 CLR 499 (at 504–505). In Baisman & Cartmill [2022] FedCFamC1A 36 Tree J observed in relation to weight appeals:
44.Time and time again it has been emphasised that appellate challenges to weight face a particularly high bar. That is because the question of weight given to competing evidence is quintessentially a matter for a primary judge (CDJ v VAJ (1998) 197 CLR 172).
Further, the criticism of the primary judge in relation to the application of weight is unfounded if unattached to a challenge that the result was unreasonable or plainly unjust (Hedlund & Hedlund (2021) FLC 94-065). Here, there was none.
The primary judge, having found that the matter could not proceed on a final basis where the respondent was unrepresented, determined that the matter should be adjourned. In light of the allegations in the Family Report, particularly in relation to matters of violence, the primary judge determined that it was necessary to make interim orders.
In one sense, the orders made by the primary judge did no more than continue the then court ordered arrangements in relation to the children living in the primary care of the respondent and spending time with the appellant. The primary judge recorded the respondent had initially proposed the eldest child live with the appellant but then changed her view. The primary judge noted the appellant and ICL sought an arrangement that would see the eldest child living with the appellant with consequentially a separation of the siblings from each other and the respondent.
The primary judge recorded the observations of the Court Child Expert that the children had a meaningful relationship with both parents and the views of the eldest child on wanting to spend more time with the appellant. The primary judge also recorded that the ICL had spoken to the eldest child and that the eldest child wished to live with the appellant. There is no merit to the contention that the primary judge did not consider or give appropriate weight to the age and views of the eldest child or to the proposals of the parties and the ICL.
The primary judge addressed each of the primary considerations under s 60CC of the Family Law Act 1975 (Cth) (“the Act”) recording correctly that there were admissions in the Family Report by the appellant that would identify family violence had occurred. The primary judge observed that the appellant’s conduct in withholding of the children from the respondent “as well as” the content in the Family Report was sufficient to establish that on an interim basis the respondent should have sole parental responsibility of the two children. There is no challenge to this finding being entirely consistent with admissions by the appellant recorded in the Family Report. The primary judge also acknowledged that the seriousness of the allegations in the Family Report were such that a change in the children’s arrangement was not such as to be in their best interests at that time.
The primary judge recorded the submissions of the ICL that the eldest child may not be happy spending time with the respondent but noted that he was still of an age where the Court was not satisfied that it should disregard the primary considerations in s 60CC in ensuring that there is a continuing meaningful relationship between the eldest child and his mother, concluding that making orders proposed by the ICL and the father would not, in the Court’s opinion, do so.
The primary judge thereafter addressed each of the additional considerations, recognising that the Court was not aware of all of the evidence that was in the possession of the ODPP in relation to the hearing fixed for late 2024, observed that it was not in the best interests of the children for their mother to be the subject of criminal proceedings, and concluded that the best interests of the children saw them remaining in the respondent’s care and spending time with the appellant.
Contrary to the contentions advanced in the Grounds of Appeal, the primary judge carefully weighed the evidence, such as it was, giving it such weight as was appropriate in the exercise of his Honour’s discretion. There is no merit to Grounds 1 and 2.
DISPOSITION
For the above reasons, the appeal will be dismissed.
No party sought an order for costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 13 September 2024
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