Dunne & Houghton

Case [2024] FedCFamC1A 198

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dunne & Houghton [2024] FedCFamC1A 198   

Appeal from: Houghton & Dunne [2024] FedCFamC2F 259
Appeal number: NAA 87 of 2024
File number: BRC 15957 of 2020
Judgment of: CHRISTIE J
Date of judgment: 24 October 2024
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appellant and cross-appellant appeal from final parenting orders – Whether primary judge erred in failing to apply the Briginshaw test – Whether primary judge erred in assessment of findings giving rise to unacceptable risk – Whether primary judge gave adequate reasons – Whether primary judge erred in not accepting expert evidence – Whether primary judge made findings contrary to evidence – Where cross-appellant contends apprehended bias on part of primary judge – Consideration of test in Ebner – No grounds of appeal challenging parenting orders established – Both appeal and cross-appeal dismissed.  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 60CC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23

Cases cited:

Beckham & Quarrington [2024] FedCFamC1A 136

De Winter v De Winter (1979) 23 ALR 211

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

Janzen and Naish [2024] FedCFamC1A 75

Johnson v Johnson (2000) 201 CLR 48; [2000] HCA 48

Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Number of paragraphs: 82
Date of hearing: 11 October 2024
Place: Sydney
Counsel for the Appellant: Mr Pope
Solicitor for the Appellant: Derek Legal
Counsel for the Cross-Appellant: Mr Finch (direct brief)
Counsel for the Respondent: Ms Downes
Solicitor for the Respondent: Aylward Game Solicitors
Counsel for the Independent Children's Lawyer: Ms Cullen
Solicitor for the Independent Children's Lawyer: Bridges Family Law Specialists

ORDERS

NAA 87 of 2024
BRC 15957 of 2020

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

MR DUNNE

Appellant

MS PIERCE

Cross-Appellant
AND:

MS HOUGHTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

24 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed by the appellant on 23 August 2024 is dismissed.

2.The Amended Notice of Appeal filed by the cross-appellant on 23 August 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 the pseudonym Dunne & Houghton

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AGLC
Dunne & Houghton [2024] FedCFamC1A 198
Case
[2024] FedCFamC1A 198
Decision Date

CaseChat Overview and Summary

The appeal was filed by Mr Dunne against the final parenting orders made by the Federal Circuit and Family Court of Australia, with Ms Houghton as the respondent and Ms Pierce as the cross-appellant. The primary issues in the appeal were whether the primary judge erred in failing to apply the Briginshaw test, the assessment of findings giving rise to unacceptable risk, the adequacy of reasons provided by the primary judge, the acceptance of expert evidence, and findings contrary to evidence. Additionally, Ms Pierce argued that the primary judge had an apprehended bias.

The court examined each ground of appeal and cross-appeal meticulously. It found that the appellant failed to demonstrate that the conclusion reached by the primary judge was unavailable, as required by the principles in Pachris & Tajir (No 3) [2023] FedCFamC1A 230. The court also reviewed the primary judge's findings at paragraph 358, concluding that they were consistent with the evidence presented, particularly concerning the father's alcohol problem. Regarding the allegation of bias, the court applied the Ebner test, which is an objective assessment of whether a fair-minded lay observer might reasonably apprehend bias. The court concluded that the primary judge's comments did not amount to bias as per the Ebner test. The court found no merit in the grounds of appeal and cross-appeal.

The court dismissed both the appeal and the cross-appeal, affirming the primary judge's findings and orders. The court also made it clear that the form of the order is subject to entry in the Court’s records and that any minor typographical or grammatical errors may be subject to review. The court emphasised that the publication of identifying details in family law proceedings is an offence under Part XIVB of the Family Law Act 1975 (Cth).

Orders

Orders of the court

NAA 87 of 2024

BRC 15957 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DUNNE

Appellant

MS PIERCE

Cross-Appellant

AND:

MS HOUGHTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

24 OCTOBER 2024

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed by the appellant on 23 August 2024 is dismissed.

2. The Amended Notice of Appeal filed by the cross-appellant on 23 August 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

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Evidence

Evidence Before The Court

To succeed, the appellant must demonstrate that the conclusion was not available, not merely assert that another finding was available: Pachris & Tajir (No 3) [2023] FedCFamC1A 230 at [38]. The ground fails.Ground 7 – His Honours findings at paragraph 358 of his reasons are contrary to the evidence. Ground 7 referred to the reasons for judgment at [358], which state:Given what the father has told staff at the MHU about his drinking, it is clear to me that the father has a serious problem with alcohol and there has been nothing that has been presented to this Court that shows that he has done anything to address this problem. The father told the Mental Health Unit (“MHU”) (at [224]):… that he drinks 12 to 14 mid-strength beers and a sixpack of Jack Daniels and Coke daily. He said that he has been doing so every day since he was a teenager. He said that he has withdrawals and heightened anxiety when he is not drinking. He said that he last drank the day before (25 September 2020). The primary judge’s conclusion was consistent with the evidence. At the hearing of the appeal, (and inferentially in the Summary of Argument) the appellant said the reference to [358] was in error and the ground was intended to refer to [357], which reads:I am not convinced that the father has been free of drugs as he claims. Whilst he belatedly gave to the Court the results of two hair follicle tests, these were not conducted at the behest of the ICL, and the father took the tests at a time of his choosing. Given what he had told the hospital in September 2020 (that he had abstained from drugs for two months because he knew he was going to be tested), as well as the many statements given to staff at the MHU about his drug taking, I cannot conclude that the father is not using illicit drugs. The difficulty with that submission is that while there was some evidence that the father had tested negative for illicit drugs since the commencement of the current proceedings, the evidence about when he had ceased to use illicit drugs was not consistent across all sources. The primary judge was entitled to remain concerned about illicit drug use and the possibility of relapse. I accept the submission that the primary judge was in error in concluding that the hair follicle tests were not undertaken at the request of the ICL, as a proper reading of the transcript supports the conclusion that they were undertaken at the request of the ICL. However, nothing in the appellant’s submissions has persuaded me that this error in isolation was material having regard to the breadth of material upon which the primary judge’s conclusion of “unacceptable risk” was based, and accordingly, this ground must, consistent with the principles in De Winter v De Winter (1979) 23 ALR 211, fail.Ground 8 – His Honours findings at paragraph 359 of his reasons are internally inconsistent. At the hearing of the appeal, the various parties appeared to accept that while the appeal ground referred to [359], the appellant had intended it to refer to [358] and the argument proceeded accordingly. The reasons at [358] say:Given what the father has told staff at the MHU about his drinking, it is clear to me that the father has a serious problem with alcohol and there has been nothing that has been presented to this Court that shows that he has done anything to address this problem.

Decision

Reasons for decision

Ground 13 alleged bias on the part of the primary judge and so will, consistent with authority, be considered first.Ground 13 – His Honour erred in making the comment in the judgment that lack of insight seemed to be a hereditary trait and in so doing demonstrated unfair bias. In September 2020, the child was in the care of the cross-appellant and the respondent asked her to meet at the police station to effect changeover of the child. The cross-appellant declined to meet at the police station as requested. In the reasons, the primary judge said:[376]If the PGM were truly looking out for the best interests of the child, this is exactly what she would have done. She did eventually concede, during her evidence, that she had not acted appropriately by refusing to meet at the police station. That was a big concession for the PGM to make. However, during her submissions at the end of the trial, the PGM ignored this and made the blanket statement that “I have always acted in the best interests of the child”.[377]Lack of insight would seem to be a hereditary trait. As developed by the cross-appellant, the assertion of “unfair bias” was an allegation of apprehended bias on the part of the primary judge. The law in respect of allegation of apprehended bias is well-settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the plurality of the High Court stated: [6]Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity …, a judge is disqualified if 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.(Footnotes omitted) The Ebner test is an objective one – would a hypothetical reasonable observer of the judge’s conduct apprehend that the judge may not bring an impartial mind to the task. The test has been the subject of consideration by the High Court in Johnson v Johnson (2000) 201 CLR 488:[13]Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”…(Footnotes omitted)

Ratio Decidendi

Legal Principle Established

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