Dunne & Houghton
[2024] FedCFamC1A 198
•24 October 2024
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
On 29 February 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders. The orders provided that the subject child, X (“the child”) was to live with the mother and spend no time with the father, and further, that the child spend supervised time with the paternal grandmother.
Both the father and the paternal grandmother appeal from the orders of 29 February 2024. The mother asks that both appeals be dismissed. The Independent Children’s Lawyer (“ICL”) submits that the father’s appeal should be dismissed but contends error such that the paternal grandmother’s appeal should be allowed.
For the reasons which follow, both appeals will be dismissed.
THE TRIAL
In late 2023 and early 2024, the primary judge heard evidence in a parenting dispute concerning the child then aged eight. The child was living with the mother at the time of trial. Time between the child and the father had been suspended in September 2020 and supervised time between the child and the paternal grandmother had been ordered on an interim basis by consent.
The mother sought an order at trial that there be no time between the father or the paternal grandmother and the child. The father was seeking orders that the child live with him on five out of 14 nights during term time. The paternal grandmother’s primary position at trial was support for the father and effectively she would exercise any time during time when the child was in the father’s care, but should the court not make an order for time between the father and the child, the paternal grandmother sought time one weekend per month and for half of school holidays.
The primary judge’s reasons are squarely focused on evaluation of the evidence relevant to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
Earlier proceedings between the parties had resulted in court orders which provided for the child to live with the mother and spend time with the father.
Domestic violence orders had been made including a final order dated early July 2019 and expiring early July 2024 for the protection of the mother and restraining the conduct of the father.
The reasons for judgment set out a long history of largely uncontroversial interactions between the parties. The text messages which were excerpted in the reasons give an indication of the extent of conflict between the parents. Two examples, the first from 11 January 2019 will suffice. The father wrote to the mother:
U know what when [X] say 2 U why did dad kill him self just say he a piece of shit O n wait a minute he a warm peace of shit,cunt, paranoid,skitafranuc, low life s scum bag. That what I am by
(As per original)
On 17 January 2019, the father wrote to the mother:
Fuck U U an your dad game Over this is hOw U wanna pLay cunt
I hope u drop ded
JUst letting You Know I have let child services kNow all about U your dad drug dealing so fuck U
I’m his farther so I will be having my son on the day the court order say if not U will be arrested so just try
Answer n the police want be Involved I mean iT I really don’t care if I and getting locked up like I said I will die b4 that happen so answer the fucking phone know or are you fat legs 2 busy being spread like a slut U r is that why U can’t answer U have your mouth hands full do U
I really hope die a slow painful death I really do
Hope your cancer spread all through u. U deserve it
(As per original)
The father sent text messages to the mother in which he threatened to show the police and court naked photographs of the mother, taken during their relationship.
In that context, unsurprisingly, considerable time is spent in the reasons for judgment considering the evidence relating to events which occurred between mid to late September 2020, culminating in a recorded telephone call from the father to the mother where the father said (as recorded at [326]):
You know what, you just signed both our death warrants, you cunt. You calling coppers; they are going to have to shoot us dead, right, I fucking promise you that. Fucking dog, you’re a fucking dog, that’s all that you fucking are. I mean it, call the fucking coppers about this right now. Call [Suburb R] Police Station. They are going to have to shoot us both fucking dead, you silly cunt. That’s what you fucking are: a stupid fucking silly cunt.
(As per original)
The primary judge accepted that the child had been present (with the father) when the father spoke to the mother. The primary judge found that the child formed the view from his father’s words and conduct that morning that the father and the child would die together.
These events occurred at the home of the paternal grandmother. She initially removed the child to the granny flat occupied by the paternal great grandmother in the backyard of her own home but then determined to return the child to his mother. The mother requested they meet at the police station. The paternal grandmother declined and met the mother at a petrol station.
The primary judge concluded that the time between the child and the father would place the child at an unacceptable risk of harm. The primary judge concluded that time between the child and the paternal grandmother would be beneficial to the child but to ameliorate the risk to the child of any risk associated with the paternal grandmother being unable to navigate the competing loyalties between child and grandchild – the child’s time with the paternal grandmother should be supervised.
THE APPEALS
On 28 March 2024, the father filed a single Notice of Appeal which designated him as “First Appellant” and the paternal grandmother as “Second Appellant”. The mother was the Respondent. On 23 August 2024, following directions, the father filed an Amended Notice of Appeal and on that same day, the paternal grandmother filed an Amended Notice of Appeal.
As was noted by Austin J in Janzen and Naish [2024] FedCFamC1A 75 at [6]:
…as a matter of procedure, two independent parties with separate grievances cannot combine their grievances within a single Notice of Appeal. Joint appeals by multiple appellants are only entertained when their appellate interests wholly align.
I propose for the purpose of determining the appellate proceedings before me to designate the father as the appellant and the paternal grandmother as the cross-appellant. The mother is the respondent to both the appeal and the cross-appeal.
The appellant appealed against all of the orders of the primary judge and sought orders for either remission or re-exercise depending on which grounds were successful. The cross-appellant appealed against orders 4–13 and sought unsupervised time by way of re-exercise. The respondent sought that both appeals be dismissed. The ICL contended that the appellant’s appeal ought be dismissed but that of the cross-appellant’s be allowed.
The appeal
Ground 1 – In paragraph 324 of His Honours reasons and onwards, His Honour does not make clear that his findings were made in circumstances, where he was satisfied that the Briginshaw Test has been satisfied. Because if it had not, it affects the predicting nature as the evidence in assessing unacceptable risk.
From [324]–[330] of the primary judge’s reasons, his Honour explains why it is that he accepts the version of the events of September 2020 provided by the child, and supported by the objective evidence, and why it creates (in the context of what had occurred previously and what was yet to occur), a situation of unacceptable risk. The appeal ground complains that in reaching that conclusion, the primary judge did not explicitly refer to the Briginshaw standard given the gravity of what was alleged: s 140 Evidence Act 1995 (Cth). As Aldridge J has recently observed in Beckham & Quarrington [2024] FedCFamC1A 136, that: “…no error would normally arise merely because a trial judge did not set out provisions in full as the relevant task is to apply the law and not to recite it”: at [46]. The same principle applies here – there will be no error where the primary judge does not explicitly refer to a relevant principle of law – provided he or she applies that principle correctly. That occurred.
The primary judge systematically set out the evidence on this important factual issue and weighed it, concluding a preference for the evidence which was recorded by those who spoke to the child relatively proximately to the events recorded. In addition, the reasons cite the appellant’s own words at [326]. The primary judge well understood the seriousness of the allegation and made findings consistent with the standard. There is no error.
Ground 2 – His Honour has not exposed his reasonings in paragraph 345 (b), (c), (d), (f), (i), (j) and (k).
This ground is ill-conceived. In the subparagraphs referred to, the primary judge does no more than refer the reader of the reasons for judgment to his Honour’s earlier analysis of the relevant statutory considerations.
The appellant submitted that the primary judge’s reference at [345(b)] to s 60CC(3)(b) of the Family Law Act 1975 (Cth), and in particular, the sentence, “I will speak further about the relationship [X] has with the PGM later in these reasons” constituted error because the primary judge did not, in fact, return to a discussion of the relationship between the child and the cross-appellant. While it is accurate to note that the primary judge did not, in the reasons, discuss the value of the relationship between the child and the paternal grandmother to the child, I do not consider this to amount to error for two reasons: first – the value to the child of the relationship was an uncontroversial matter which led to the making of an order for time. Second, to suggest that the reasons did not actually speak further about the relationship of the child and the paternal grandmother imports too narrow a reading of the reasons. The primary judge’s focus in paragraphs [367], [370], [373], [376], [384] and [385] was on the finding that the paternal grandmother had prioritised the relationship with the appellant over her relationship with the child.
Ground 3 – His Honour erred in placing emphasis on the September 2020 incident and previous history without taking into account the history between September 2020 and February 2024.
This ground, as drafted, ignores the discussion, for example, at [236] where the primary judge places emphasis on the appellant’s lack of candour with the court and the discussion at [300]–[330], about the manner in which the appellant chose to conduct the litigation.
The appellant’s Summary of Argument filed 23 August 2024 contended “there was no evidence of any improper conduct on the part of the Father between September 2020 and the commencement of the Trial”. A generous reading of that submission could confine it to conduct vis-à-vis the respondent but even that would not be factually accurate.
One need go no further than the appellant’s own evidence to understand the difficulty with that submission. In late September 2020, the appellant was charged with offences against a police officer concerning obstruction and bodily harm.
The respondent’s evidence contains reference to a number of incidents in 2020-2023 which saw the father appear before a Court in Suburb BB, including breaches of bail, and domestic violence offences.
There is no merit in ground 3.
Ground 4 – His Honour improperly disregarded the evidence of the two (2) experts.
The primary judge had before him the evidence of Ms AA and Mr T.
Mr T was a clinical psychologist engaged to provide “reunification therapy” after the previous family therapist terminated her involvement and reported to the ICL that the appellant had spoken about kidnapping the child.
Notwithstanding the nature of Mr T’s engagement, he made a recommendation in his report about time between the appellant and the child.
He said:
In my opinion, after observing the joint sessions between [X] and [Mr Dunne], I would recommend unsupervised contact between [Mr Dunne] and [X].
The primary judge was critical of the recommendation on the basis that it fell outside the scope of Mr T’s engagement and was made absent a comprehensive risk assessment informed by collateral information.
Ms AA prepared the Family Report in the matter. She recommended family therapy with time between the child and the father to be based on the recommendation of the family therapist.
Again, the primary judge was critical of the recommendation on the basis that the report writer effectively outsourced the obligation to express an opinion about the appropriateness (or otherwise) of time to a third party.
The primary judge was not obliged to accept the evidence of either witness and gives cogent reasons for its rejection. There is no error.
Ground 5 – His Honour improperly disregarded the uncontested evidence of the child's statement of [sic] Mr [T].
Mr T’s second report included the following opinion:
… in the four joint sessions I observed [X] to show physical and other affections to his father, I did not observe concern by [X] for his father after his initial reaction previously mentioned. During the joint sessions, [X] repeatedly asked his father to spend time with him, specifically to teach him to ride his bike, to go to his father’s work (father is a [tradesperson]) and to swim together.
When questioned alone, [X] reported that he wanted to spend time with his father, he reported he was not scared of his father.
His Honour’s reasons for approaching those conclusions with caution are plainly expressed at [295]–[296]. No error is demonstrated.
Ground 6 – His Honours findings at paragraph 355 of his reasons are contrary to the evidence.
The primary judge’s reasons at [355] say:
Much was made of the fact that there had been no breaches of the DVO since September 2020, but this does not mean that the father has understood how he has committed family violence upon the mother. All it shows is that the father has understood that the order is there for a reason and that he must comply or there will be consequences.
The primary judge accepted that the father had understood that there could be consequences for breach, but he was not satisfied that the father has understood how he has committed family violence. This is an unimpeachable conclusion on the evidence.
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.
In closing submissions, counsel for the appellant acknowledged the “inconsistent evidence” about the appellant’s “drug and alcohol issues”. In cross-examination, the appellant indicated, in around September 2020, his alcohol consumption was “a drink every couple of days throughout the week”. At the same time in September 2020, he reported to the hospital that he was engaged in daily binge drinking and consuming “12-14 mid-strength beers and a six pack of Jack Daniels and Coke mixed daily”. The appellant told the court his present weekly consumption was “a couple beers a night”.
The respondent submits that the fact of the father having completed a course between September 2020 and trial is not, in and of itself, conclusive of the father addressing the problem – as is pointed out in the respondent’s submissions, the father had undertaken such courses in the past. Further, the father had reported to Mr T a pattern of drinking consistent with binge drinking and had been charged with “[offences relating to drunkedness]” in early to mid-2022. The primary judge’s conclusion was available on the evidence. Ground 8 has not been established.
Ground 9 was abandoned.
The Cross-Appeal
The submissions filed by the cross-appellant did not directly address the appeal grounds in the cross-appellant’s Amended Notice of Appeal filed 23 August 2024. Rule 13.23(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides:
(2) For the purposes of subrule (1), a summary of argument must:
(a)set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript) …
This failure makes the task of the respondent and the Court more difficult. During the course of oral submissions, the grounds which were being pursued were clarified with counsel who appeared on behalf of the cross-appellant.
The cross-appellant abandoned Grounds 1–3.
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)
The oral submissions on behalf of the cross-appellant focused on the single comment of the primary judge in the reasons as sufficient to ground the apprehension. However, the fair mind lay observer would be expected to take into account the evidence upon which the primary judge had reached his conclusion about “insight”.
The statement of the primary judge at [377] should also be read in light of his conclusions at [385]. In assessing potential future risk, the primary judge was obliged to consider whether the parties had displayed sufficient insight in respect of what had occurred in the past to inform his Honour’s determination as to what measures may be necessary to ameliorate risk.
The primary judge’s comment is probably gratuitous but ultimately little more than a finding, at the conclusion of a hearing, that the paternal grandmother and her son exhibited a similar lack of insight. Ground 4 is not made out.
Ground 5 – His Honour erred in declining to accept the Consent Orders reached between the parties on the first day of the trial.
On the first day of the trial, the parties intimated to the primary judge that there may be a resolution of matters involving the cross-appellant – which they anticipated would result in consent orders. Following a discussion about the fact that even if consent orders were executed, the cross-appellant would remain a witness in the appellant’s case, no party sought to tender the proposed consent order at that stage. The transcript makes tolerably plain that all parties accepted that this was the appropriate course. On 9 November 2023, at the request of the cross-appellant’s counsel, the document was marked for identification and no further application was made for its tender. At the end of the trial, it no longer represented the mother’s position.
During oral submissions in the appeal, counsel who appeared on behalf of the cross-appellant appeared to contend that the ground of appeal could be construed as a complaint that the primary judge failed to take into account the nature of the agreement contained in the proposed consent orders. Even adopting a generous approach to the ground as drafted, it cannot be read as a failure by the primary judge to consider the terms of an agreement which had been abandoned. The primary judge was always obliged to reach his own view about what orders best met the needs of the child. The ground is without merit.
Ground 6 – His Honour erred in considering the evidence of the Independent Children's Lawyer in support of the father and paternal grandmother having a relationship with the child.
The ICL did not give evidence. It was not apparent from either the Summary of Argument or oral submissions whether the ground was intended to refer to evidence elicited by the ICL in cross-examination or submissions made by the ICL. In either event, the ground misses the mark. The primary judge plainly recognised the value to the child of the relationship between the child and the cross-appellant by the making of orders which provided for time between the child and cross-appellant. Ground 6 is without merit.
Ground 7 – His Honour erred in failing to consider evidence that the child is safe and secure and enjoys a beneficial and healthy relationship with both his father and paternal grandmother.
As discussed above, the beneficial nature of the relationship between the child and the cross- appellant was not seriously in issue. The focus was on the conditions which should be placed on the time to ensure the safety of the child.
While the ground refers to the child’s relationship with the appellant as well, counsel for the cross-appellant confined the submissions on the hearing of the appeal to whether or not the primary judge failed to consider evidence about the relationship between the child and the cross-appellant. For the reasons discussed above at [66], this ground must fail.
Ground 8 – That His Honour erred by not considering and taking into account the nature of the relationship between the child and the paternal grandmother.
As already discussed, it is axiomatic that the primary judge did take into account the nature of the relationship since he ordered that there be regular time between the child and the paternal grandmother. The imposition of supervision was not a reflection of the relationship, but a condition designed to ameliorate risk. Ground 8 fails.
Ground 9 – That His Honour erred in finding that the paternal grandmother would allow the father to come and see the child and that the paternal grandmother would pass messages from the father to the child.
Ground 10 – That His Honour erred in not finding and considering that if the father was to come into contact with the child that the paternal grandmother could be trusted to then remove the child.
Grounds 9 and 10 can be dealt with together since they raise the same issue – whether there was an error in the conclusion of the primary judge that the child’s time with the cross-appellant required supervision and whether the findings underpinning that conclusion were available on the evidence.
Counsel who appeared on behalf of the ICL, in supporting the cross-appeal, focused on grounds 9 and 10 as grounds which raised the adequacy of the primary judge’s reasons.
The primary judge concluded that the balance between the desirability of the child continuing to see and spend time with the cross-appellant and the risk that such time may expose the child to unacceptable risk was met by the imposition of supervision.
The primary judge exposed the reasoning in paragraphs which discussed the failure of the cross-appellant to take the child to the police station, her knowledge of the appellant’s long history of substance abuse and her approach to the litigation (in taking the appellant’s part).
Reasons will be inadequate where it is not possible to ascertain the path or basis upon which the conclusion was reached. That is not the position here.
Ground 11 – That His Honour erred in finding that the paternal grandmother knew that the father had armed himself for a confrontation with the police and that such a finding as against the paternal grandmother was manifestly unjust and plainly wrong.
In the reasons for judgment the primary judge said (at [375]):
The PGM could not explain why it was that she refused to meet at the police station. Given that she knew that the father had armed himself for a confrontation with police, it would have been in the best interests of the child to meet at the police station. There the child would have been able to explain to the mother what had happened and the PGM could have explained to the police the situation that was occurring back at her home to ensure that the police were not entering into a situation that put them in danger.
(Emphasis added)
The cross-appellant maintained that the appellant had possession of a knife merely for the purpose of making a sandwich. The primary judge was not obliged to accept that evidence.
In her affidavit, the cross-appellant said that in September 2020 she heard the appellant say (in the presence of the child) on two occasions words to the effect that the respondent had been in contact with the police who would have to shoot him if they wanted to arrest him.
The cross-appellant, responding to the child’s distress, removed him from the immediate vicinity of the appellant after which time, she says, the appellant picked up a bread knife to make a sandwich. He continued to have the knife in his hand when the child returned to the room after which the cross-appellant says the appellant put it down on a glass cabinet. It cannot be forgotten that the primary judge also had additional evidence about what had occurred that day including accounts from the child. The primary judge recorded the respondent’s evidence (at [130]):
The mother told [X] that he was safe, and she then said to [X] “Nanny got you away, did she?” [X] replied, “yeah from dad because daddy was really naughty, daddy got a knife, daddy got a knife, it was dangerous, Nanny saved me”.
The child provided an account recorded by Ms K (the child’s maternal aunt) and reproduced in the reasons for judgment in which the child described his father having a big knife and wanting “the police to kill us” (at [134]). The child told the police that the cross- appellant had screamed “put that knife down” at the appellant (at [313]). The child subsequently told Mr T the appellant “tried to kill me with a knife” (at [260]).
Finally, the primary judge records at [245]:
… the father said that, [in] September 2020, he grabbed the knife because police were going to come to the house, and he wanted to be armed. He could not explain why it was that he wanted to be armed other than to say that he wanted to “protect himself” from the police.
The ground was argued on the mistaken basis that the primary judge’s finding required a concession on the part of the cross-appellant. It did not. Against the background set out above, the conclusion of the primary judge that the cross-appellant knew the appellant had armed himself for a confrontation with the police was sound. The ground fails.
Ground 12 – His Honour erred in finding that the paternal grandmother should have taken the child to meet the mother at the police station.
This is not a proper ground of appeal since it does not assert legal error. In any event, the paternal grandmother accepted the proposition in her oral evidence that in hindsight, she should have agreed to the mother’s proposal to effect handover of the child at the police station in September 2020: see [376].
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 24 October 2024
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