Eagle & Scarlett (No 2) - [2020] FamCAFC 291

FAMILY COURT OF AUSTRALIA

EAGLE & SCARLETT (NO. 2)

[2020] FamCAFC 291

FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders – Where no time was ordered between the appellant father and the child – Apprehended bias – Alleged errors of fact – Only material errors of fact justify appellate intervention – Whether there was internal contradictions within the reasons – Alleged failure to have regard to evidence – Weight challenges – Alleged failure to order a further psychological report – Where the behaviours of the father, not their cause, plainly concerned the primary judge – Where the conviction of the father for assaulting the respondent mother post-separation compelled the displacement of the presumption of equal shared parental responsibility – Where no ground of appeal is established – Appeal dismissed.

Family Law Act 1975 (Cth) s 61DA

De Winter v De Winter (1979) 23 ALR 211
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT:

Mr Eagle

RESPONDENT:

Ms Scarlett

INDEPENDENT CHILDREN’S LAWYER:

JLM Family Lawyers

FILE NUMBER:

PAC

2781

2016

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

20 November 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Strickland, Aldridge & Tree JJ

HEARING DATE:

9 October 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 December 2019

LOWER COURT MNC:

[2019] FCCA 3584

REPRESENTATION

THE APPELLANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Reeves

SOLICITOR FOR THE RESPONDENT:

Reid Legal Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Greenaway

SOLICITOR FOR THE INDEPENDENT CHILREN’S LAWYER

JLM Family Lawyers

Orders

Appeal No. EAA 6 of 2020 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eagle & Scarlett (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 6 of 2020
File Number: PAC 2781 of 2016

Mr Eagle

Appellant

And

Ms Scarlett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

On 13 December 2019, the primary judge made final parenting orders in relation to the only child of the parties’ relationship, X, born in 2015, and hence presently five years of age (“the child”). Pursuant to those orders, the child lives with Ms Scarlett (“the mother”) who has sole parental responsibility for her. The orders provide that the child spend no time with Mr Eagle (“the father”) and there were no orders made facilitating any communication regime between the father and child. Further, the mother was given permission to change the child’s surname to Eagle-Scarlett.
From those orders, the father now appeals. The appeal is resisted by the mother and the Independent Children’s Lawyer. For the reasons which follow, the appeal fails.

Background

The father was born in 1977, and hence at the time of trial, he was 42 years of age. It was uncontroversial that he had a long history of involvement with the law. At [41]–[43] of the primary judge’s reasons, her Honour said as follows:
41.The father was first incarcerated at the age of 17 years and spent time in a number of Youth Detention Centres until being moved to an adult facility at the age of 21. He has spent approximately 20 years of his life in prison having most recently being [sic] released from custody in 2014.
42.The father began using heroin when he was approximately 19 years of age and states that he has used a number of other illegal substances including marijuana, ice and cocaine in the past. He says that since being released from prison in 2014 he has only had marijuana on one occasion and drank alcohol occasionally.
43.The father is currently prescribed the drug [suboxone] which is an opioid narcotic prescribed to assist him in remaining heroin free.
The offences for which the father has been incarcerated, included “assault and armed robbery” for which he served “a sentence of 10 years and six months up until 2014” (at [20]).
The mother was born in 1988, and hence at the time of trial, she was 31 years of age. She identifies as Aboriginal (at [47]). Prior to her forming a relationship with the father, she had two children to a previous relationship, being A, born in 2009, and B, born in 2012.
The father was released from custody in early 2014 and the parties commenced their relationship in October of that year, although they never lived together (at [24]–[25]). As we have already noted, the child was born in … 2015. The parties’ relationship concluded in December 2015. The mother said that she ended the relationship because “she became concerned about [the father’s] abusive and controlling behaviour towards her” (at [52]).
It appears as though immediately post-separation, the father spent occasional time with the child, supervised by the mother (the mother’s affidavit filed 17 April 2018, paragraph 17). However in March 2016, matters took a bad turn when, according to the mother, “the father attended the mother’s home demanding she give him the child. He was holding a black bag and threatened to blow her head off if she did not comply with his demand” (at [58(a)]).
The mother claims that in January 2016, the father again threatened her, including saying “I swear on the Quran I will kill you. I will make you disappear and my daughter will be spitting on your grave wearing a hijab by the time she is six” (Exhibit 2, p.14). The mother attended police in relation to this and other matters, in consequence of which, an application for an apprehended violence order (“AVO”) was made on her behalf on 21 June 2016, naming the father as the respondent.
The father was subsequently charged with assaulting and stalking the mother. Although the father’s criminal record shows that the offence date was 12 June 2016 (Exhibit 3, p.16), oral evidence suggested that the offence in fact occurred in January 2016 and comprised the father pushing a door against the mother causing her to fall (Transcript 27 May 2019, p.9 line 29 to p.11 line 43; Transcript 29 May 2019, p.3 lines 4–18). According to the father’s criminal history, in early 2018, the father was ultimately convicted of the assault of the mother but found not guilty of stalking her (Exhibit 3, p.16). He was placed on a bond for two years.
The father commenced proceedings in the Federal Circuit Court of Australia on 17 June 2016. Four days later, on application by the police, a final AVO was made in favour of the mother against the father, to last for a period of two years. That order was made by consent without admission (Transcript 27 May 2019, p.8 line 23).
On 2 December 2016, the Federal Circuit Court made interim orders that the father commence spending time with the child, increasing to three times per week for four hours at a time. Those were the orders which prevailed at the time of the trial.
At [58(c)]–[58(d)] of the reasons, the primary judge recorded the mother’s subsequent claims against the father as follows:
…
c)At changeover on 18 December 2016 the father approached the mother and spat at her saying words to the effect of “you’re nothing but a liar. The AVO is a lie. The Judge hates you and the solicitors hate you. You’re nothing but a liar”; and
d)At changeover on 27 December 2016 the father “angrily shoved” the child into the pram because she was crying then lifting the two front wheels of the pram and slamming them to the ground. The mother reported this incident to the police.
On 2 January 2017, the father telephoned emergency services stating that he was being chased by two males with firearms. Police attended and spoke with the father and another person that he was with. According to the police records, “[w]hilst Police were talking with [the father], [the other person] notified police that [the father] had been consuming ‘ice’ during the night and they had not been chased with [sic] two males with firearms” (Exhibit 2, p.9). No further police action ensued.
The primary judge recorded further events in 2017 as follows:
88. On 9 January 2017 the father contacted emergency services because he believed he was being followed by armed persons in a vehicle. Father stated to police that “they are going to knock me, I’m not strapped here and I’m scared”. As a result, the father was transported back home in a contained police vehicle.
89.On 11 January 2017 the father again contacted the police reporting that he was being followed. The father then forced himself into the guard’s room of Suburb K Railway Station and scared transit staff. Police attended the scene where they advised the father to “move on”. The police were of the opinion that the father was suffering from paranoia.
In early 2017, the mother gave birth to her fourth child, H with her then partner Mr G.
The primary judge recorded further events in 2017 involving the father as follows:
90.On 1 February 2017 the father jumped off the train platform at Central Railway Station and climbed the fence to get to another platform. He did this because he believed he was being chased. Police were called and he asked the officers if they were real police officers. The father explained in cross-examination that the reason he did this was because some of his acquaintances had in the past impersonated the police, so to him it was not unreasonable to assume that these police officers were being impersonated. He was conveyed by ambulance to hospital and sedated. He says the psychologist saw him at the hospital and concluded “there’s nothing wrong with this bloke”.
91.On 8 February 2017 the father locked himself in the toilet of a restaurant where police were called to intervene. The father was transported to Suburb Q hospital due to his “erratic and aggressive behaviour”.
Police records of the event referred to at [91] disclose that the father “informed police that he had taken the drug ice a few days ago but was not currently under the influence” (Exhibit 2, p.6).
The primary judge recorded another event in 2017 involving the father, as follows:
92.Later that year, on the 29 May 2017 the father again contacted the police reporting he was being pursued by unknown armed persons who were attempting to shoot him. Police arrived at the father’s home and found him suspended over the balcony. The father was conveyed to Suburb D Hospital and sectioned under the Mental Health Act. Once the father had been admitted to hospital, a psychiatrist had diagnosed him with paranoia and referred him to [a mental health facility]. The father did not accept the psychiatrist’s diagnosis and so released himself from treatment.
93.The father is adamant that he was pursued and that the unknown assailants wanted to harm him on each of these occasions.
Police records of this event contain the following, the father “was clearly drug affected and displaying signs of paranoia and delirium” (Exhibit 2, p.5).
At the father’s hospital admission on 29 May 2017, the assessing psychiatrist identified that the father’s presenting problem was “paranoia” (Exhibit 4). The hospital notes record that the “clinical impression” was of “paranoia” and “drug induced psychosis” (Exhibit 4), however they also record that the father denied being under the influence of methamphetamines “stating he has not had any illicit substances in the last [six] months” and that he had been clean for the last six months (Exhibit 4). That said, they also record that the father “[s]tates he was admitted in [hospital] [more than] [six] months ago, for a [three] day admission, due to drug induced psychosis” (Exhibit 4). The diagnosis made of the father was “paranoia” (Exhibit 4) and he was said to be “a mentally disordered person” (Exhibit 4).
On 21 November 2017, the primary judge found that on three occasions (being 18, 20 and 25 May 2017), the mother had contravened the orders of 2 December 2016 orders by failing, without reasonable excuse, to make the child available to spend time with the father.
On 7 February 2018, a Family Report was released to the parties.
The mother continued to claim that the father was aggressive towards her at changeovers. The primary judge said:
59.In her affidavit filed 28 March 2019 the mother says that earlier in 2018 at changeover the father had blocked her path and abused her saying words to the effect of “You’re a fat dog and fucking mole. I know where you live. Don’t think you’ll report me. You know I’ve bashed these dogs before”.
The mother’s fifth child, F, was born in … 2018, the father being her then partner Mr G.

The trial and the primary judge’s reasons

The father was self-represented at trial. He sought orders for equal shared parental responsibility, and for the child to live with the mother but to spend significant and substantial time with him during school terms and school holidays, together with special days.
Both the mother and the Independent Children’s Lawyer sought the orders which were ultimately made by the Court.
The primary judge identified the issues requiring her determination, the material that the parties relied upon and their competing proposals (at [2]–[8]). Her Honour then articulated the relevant legal principles which she was obliged to apply, and proceeded to make findings of fact, and in doing so, her Honour considered the evidence of the parties, before specifically traversing that material which dealt with the allegations of risk and family violence.
Amongst the material annexed to the father’s affidavit filed 13 July 2018, was the report of a psychologist, Ms M, dated 2 February 2018. It recorded that she had been undertaking psychological counselling of the father since September 2017 as “it had been suggested to him that he was being unnecessarily paranoid and that this may possibly impact on his ability to have visits with his daughter” (annexure “B” to the father’s affidavit filed 13 July 2018).
Ms M opined that “[d]uring the past 12 visits I have seen no evidence of [the father] having any paranoid thoughts” (annexure “B” to the father’s affidavit filed 13 July 2018).
However not only was Ms M not produced for cross-examination, but further, in his own cross-examination, the father conceded that he had only told her about “probably one or two” or “at least two” of the incidents referred to earlier in these reasons (Transcript 27 May 2019, p.31 lines 13–39), and in relation to the 2 January 2017 incident, “I told her I had dramas from – yes. I told her I had dramas – I didn’t get on to the full details, but I told her, yes, people were … yes” (Transcript 27 May 2019, p.32 lines 1–3).
Her Honour then reviewed the Family Report, before turning to the determination of the matters raised by the case. Central to that was an assessment of the risk of harm that the father posed to the child. We have already recited paragraphs [88]–[93] of the reasons which fall within this part of the judgment, but at [94]–[99] her Honour continued:
94.These incidents occurred while orders for father to spend time with child were in force. They did not occur in the presence of the child. The father says to this court; “what’s weird about it? …. I can guarantee he’s not going to hurt children... I went into hiding…. Do I arm up?... What do I do?… What’s so weird about it?”
95.In the world where the father spent most of his life, such incidents might not be extraordinary. To most people though they are not only extraordinary but dangerous, unusual and highly concerning.
96.The idea that a defenceless child at 3, 4, 5 years of age (or older) could be put in harm’s way in this manner is simply unacceptable. To have the father hanging off balconies and roofs in an attempt to escape being seriously hurt or killed, in any reasonable world is a situation which is dangerous and highly so. To suggest that these criminals would not hurt a child because that’s not the type of people they are is so fraught with irrationality that it makes the Court find that the father lacks insight and understanding into his actions and how they could have impacted the child.
97.The father has had plenty of opportunity to be on his best behaviour and to show the Court (and the mother) that he was serious about being a good parent and citizen. Whilst the Court feels a fair amount of sympathy for the father given his difficult life, and understands that in the scheme of things, the father has probably done fairly well to turn his life around, these proceedings are not about the father. It is not an experiment. It is not about giving him the chance to prove he can do something. He has already had ample opportunity of proving himself. He did not come clean about serious dangerous episodes, because he does not consider those things to be important. He did not tell the psychologist who prepared a report about each and every incident because “it’s been sorted”.
98.It is, in one sense, pure luck that no harm has come to the child. The mother was not aware of what was going on, the father did not tell her and the documents which shed some light had not yet been produced to the Court under subpoena. The ICL did not know about it, she had some warning as a result of limited material being made available to her and consequently sought that the father obtain a mental health assessment.
99.That assessment which was completed on 2 February 2018 by Ms M, psychologist must be given little to no weight. The opinion was not based on a full disclosure of relevant facts and as such is of little to no relevance. Ms M was not called to give evidence, her report was simply annexed to the Father’s affidavit.
(As per the original)
Her Honour then continued under the heading “[c]ourt’s [d]etermination” as follows:
100.While the child at present has a relationship with the father, the benefit of the child having a meaningful relationship with him must be weighed against the need to protect her from physical or psychological harm. The harm which the child could come to as a result of the father’s behaviours is serious. While Ms M’s report seems to suggest that the father does not suffer from any mental health issues, that opinion as explained above, will not be given any weight. The evidence suggests otherwise.
101.Alternatively, the father’s past associations are such that he has continued to lead a lifestyle which is unusual and carries with it a significant amount of danger, not only for him, but for the child. The father simply does not accept that there is anything unusual, wrong or risky with the way that he has acted in the early part of 2017. While those episodes do not appear to have repeated themselves, in the exercise of the Court’s discretion the Court is not prepared to test the waters by putting the child in a situation where she is at an unacceptable risk of harm.
102.In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating the risk that, in this instance, erratic and dangerous behaviour by the father will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of such behaviour.
103.The High Court has clearly stated that “… a Court would not grant custody or access to a parent if that custody or access will expose to child to an unacceptable risk of [harm]…”
104.In addition, the Court has serious concerns about the father’s behaviour towards the mother and her children, and towards the subject child.
105.The Court finds that unsupervised time between the father and the child would place her at an unacceptable risk of harm.
106.Next then is for the Court to consider whether the risks which have been identified might be ameliorated by supervision of the child’s time with the father. The mother proposes to relocate to the Town N area or indeed in the Sydney Metropolitan area. The evidence in support of that relocation is scant. However, she is the child’s primary carer and there is no competing application by the father for the child to live with him.
107.There is no evidence before the Court about what, if any, supervision services there might be available in the Town N area, nor is there any evidence as to whether or not the available supervisions services would be able to guard against the risks which the father poses to the child.
108.While an order for a child to spend no time with a parent is almost always an order of last resort, there are no alternatives available to this child at present. Even if the mother was to remain living in or near her current location, so that there would be less of a practical difficulty with the child spending time with the father, once again without specific evidence as to what safety guards there might be in place by a proposed supervision service, the Court would not be able to make a finding that the risks have been appropriately ameliorated.
109.In all of the circumstances, the only order which will provide the necessary safety guards for this young and vulnerable child at present is for her not to spend any time with the father.
110.As for the suggestion that there be provision of letters, cards and similar for identity purposes, there is no evidence that there would be co-operation from the mother about this, indicated by the family consultant.
(Footnotes omitted) (As per the original)

Finally, her Honour determined that a change of surname by adding the mother’s surname to the child’s existing surname was in the child’s best interests (at [111]).

The appeal generally

At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
As he was before the primary judge, the father was self-represented in the appeal. He relied upon an Amended Notice of Appeal dated 10 January 2020 which extended to some 19 grounds of appeal. Perhaps because of a lack of familiarity with House v The King, many of the grounds of appeal did not raise proper challenges, and some are not grounds of appeal at all. Further, some of the grounds of appeal are repetitive.
Further complexity arose from the father’s Summary of Argument filed 2 June 2020. Whilst many matters traversed in that document were related to the grounds contained in the Amended Notice of Appeal, some new challenges were also advanced. At the hearing of the appeal, we permitted the father to rely upon those additional challenges as if they were formally raised as grounds of appeal.
Some of the father’s grounds of appeal allege bias. We will deal with those first, and then go on to discuss the remaining grounds of appeal and challenges in the father’s Summary of Argument by arranging them into categories, and considering them collectively.
We should also advert to the fact that the father sought to rely upon documents within a “Contested Appeal Book.” In the event, only one document in it, being earlier reasons of the primary judge arising from contravention proceedings, was referred to by the father. We propose to have regard to that document.

Bias – Ground 14 and Summary of Argument paragraphs 24 and 33

Ground 14 provides:
in Paragraph 110 reasons [for] judgement 2019, Judge says there’s no evidence about co-operation by mother, about father receiving Photo’s, card’s, letters from his daughter. Unbelievable, Judge is clearly biased, your a Judge – order it.
(As per the original)
The father’s Summary of Argument at paragraphs 24 and 33 contend:
24.…The judge makes no claims or mentions of my allegations, which I made to Police or to the court, another judicial error its one sided and biased.
…
33.…Shows I did make allegations against mother yet judge never noted it down in her reasons for judgement, biased throughout the hearing.
(As per the original)
The relevant principles relating to judicial bias are well established.
In Johnson v Johnson (2000) 201 CLR 488 at 492–493, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Footnotes omitted)
Later in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 Gleeson CJ, McHugh, Gummow and Hayne JJ said:
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
The matters raised by the father in Ground 14 could not possibly found a reasonable apprehension of bias. The primary judge made no provision in the orders about the father receiving photographs, cards and letters from the child, because she accepted the evidence of the family consultant who was of the view that the mother would not be cooperative about this (at [110]). Even recognising that there is something of a logical disconnect in the primary judge’s reasoning, it could not possibly suggest that her Honour was not bringing an impartial mind to bear upon the determination of that issue, or that her Honour had in some way prejudged it.
As to the challenges based upon the primary judge’s failure to traverse the father’s allegations against the mother, these claims principally were that:
(a)in some text messages, the mother had expressed regret for her conduct;
(b)the mother only went to police after the parenting proceedings had commenced;
(c)the mother is motivated by money and alcohol;
(d)the mother’s claims against the father are false; and
(e)the mother mistreats her children.
These, and other matters, were denied by the mother in her cross-examination. In any event, whilst the mother’s honesty was challenged by the father, he did not assert that she posed an unacceptable risk to the child. Rather, the focus of the case was entirely on the risk posed by the father, and as we have noted, looming large in that was the incontrovertible evidence of his behaviour in 2017. Against that evidence, the father’s allegations against the mother were essentially peripheral.
We are not satisfied that a fair-minded observer would reasonably entertain the prospect that, by failing to mention the father’s allegations against the mother in her Honour’s reasons, the primary judge was not bringing an impartial mind to bear.
These challenges fail.

Alleged errors of fact

We have already referred to the relevant principles in relation to errors of fact in discretionary judgments articulated in House v The King. However it is useful to also state that the weight to be given to evidence is quintessentially a matter for the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519-520) and that factual findings can only be disturbed on appeal if they were “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy (2003) 214 CLR 118 at [24]). Further, it is only if a mistake of fact is material, that such a mistake will justify appellate intervention (De Winter v De Winter (1979) 23 ALR 211at 217).
Against those principles, we shall consider the factual challenges advanced by the father under the following grounds.

Erroneous conclusion in relation to the father’s mental health – Grounds 1 and 19

It is convenient to consider these grounds together.
Ground 1 provides:
that Judge made error by giving her findings of my mental health, its clearly not her field of expertise to over rule a psychologist, says I have no mental health issues, the Judge is in error
(As per the original)
Ground 19 reads:
that Judge failed to properly consider the psychologist report resulting in an error of fact.
(As per the original)
The challenge raised by these grounds is essentially that the primary judge was wrong to reject the evidence of Ms M, and in doing so, committed appealable error.
We have already recited the primary judge’s reasons at [99], where her Honour concluded that Ms M’s evidence “must be given little to no weight” because it was “not based on a full disclosure of relevant facts” and because “Ms M was not called to give evidence.”
Both of those reasons virtually compelled an absence of weight being given to any expert opinion, which is only as valid as the factual history upon which it is based. We have already recited the father’s own concession under cross-examination that he withheld significant detail of one of the two events that he told Ms M about, and omitted to tell her about several other significant events as well.
These challenges fail.

Mistake as to balcony – Ground 3

Ground 3 provides:
Judge makes error by saying in Paragraph 92 I was hanging off my balcony, when clearly it wasnt my house, the entire statement is false.
(As per the original)
This ground asserts that the primary judge at [92] erroneously concluded that the balcony from which the father was hanging was his own accommodation, when he was, in fact, “hanging off the side of a staircase at a block of units” (Transcript 28 May 2019, p.10 lines 41–42).
As we have already observed, only material errors of fact justify appellate intervention; if the error does not have any material impact upon the outcome, then it will not excite appellate review. The location of the balcony is, par excellence, an example of an immaterial mistake. It matters not whether it was the father’s own home, a public building, or someone else’s home, that was the location of the incident. The materiality is the conduct of the father, not where it occurred.
This ground fails.

“Unknown Assailants” – Ground 5

Ground 5 provides:
Judge says that I said unknown assailants in P93 were chasing me, when clearly in P101 of the reasons for judgment 13/12/19 Judge says his past associations, that clearly indicates a contradiction and error in the Judges findings of facts. unknown assailants or Past associations.
(As per the original)
This challenge arises from [93] of the reasons, where, in relation to the 29 May 2017 incident, the primary judge said “[t]he father is adamant that he was pursued and that the unknown assailants wanted to harm him on each of these occasions.”
In fact the father during cross-examination identified that he knew who the assailants were, but refused to give the police their names (Transcript 27 May 2019, p.32 lines 7–26).
Correctly, counsel for the mother identifies that the primary judge did not know the identity of the would-be assailants, and therefore, from her perspective, they were “unknown.” Alternatively, there may have been a slight infelicity of language in [93], in that perhaps her Honour ought to have used the word “unnamed.”
However, again this is not a material error, if indeed it be an error at all. That is because the crux of the primary judge’s reasoning lay not in whether or not the father’s behaviour was the product of some mental illness, illegal drug, or his factually accurate belief; rather it was the father’s lack of “insight and understanding into his actions and how they could have impacted the child” (at [96]) which was central to the risk assessment.
This ground fails.

Conclusion that father failed to give full history to Ms M – Ground 8

This ground provides:
Judge claims I didnt come clean to psychologist not true (Findings of facts)
(As per the original)
This ground may be dealt with shortly. We have already identified that in cross-examination, the father himself admitted to not giving a full history to Ms M. The primary judge was therefore correct to so conclude.

Erroneous conclusion in relation to the father being diagnosed with paranoia – Ground 9 and Summary of Argument paragraphs 6 and 13

Ground 9 provides:
Judge claims I was diagnosed with Paranoia not true
(As per the original)
The father’s Summary of Argument at paragraphs 6 and 13 assert:
6.…one police opinion, out of a total of 20 officers, not his field of expertise he’s not a psychologist, therefore Judge made a finding of fact on an important issue which could not be supported by the evidence. Annex G
…
13.…it states I was diagnosed with paranoia, not True Annex G and Annex E
(As per the original)
At [87] the primary judge recorded that “[t]he father is adamant that he does not suffer from any mental health issues, such as paranoia or delusion”. Her Honour referred to a psychiatrist’s diagnosis of paranoia at [92], and police officers’ opinions to like effect at [89]. However nowhere does the primary judge conclude that the father in fact suffers paranoia. In part, that is likely because her Honour was not particularly concerned as to the cause of the father’s behaviour, but rather the behaviour itself, and his lack of insight into the risk which it posed to the child. In any event, as we have already noted, there is clear evidence that the father was diagnosed as suffering paranoia during his 29 May 2017 hospitalisation (Exhibit 4).
These challenges therefore fail.

Error in relation to urine tests – Ground 10 and Summary of Argument paragraph 22

Ground 10 provides:
Judge claims urines werent “chain of custody” these were extra urines I provided and were not mandatory and they were “chain of custody”
(As per the original)
The father’s Summary of Argument asserts:
22.…evidence of the parties heading “The Father” judge makes no mention of the [six] mandatory urines I gave, and the 31 urines I gave from my free will 2016-2019 all clean, no drugs detected.
(As per the original)
At [45] of the reasons, the primary judge said as follows:
Tendered in the proceedings were eight urinalysis reports for the father. The samples were not provided in accordance with a chain of custody, nor were they collected at an accredited collection centre. The reports show that none of the substances tested for were detected in the samples provided.
It is significant to note that this discussion was undertaken under the heading “[e]vidence of the parties.” Further it is important to note that the primary judge made no findings in relation to whether or not the father was abstinent or otherwise from the drugs that the urinalysis reports were intended to detect. To repeat, it was the behaviours of the father, not their cause, which plainly concerned the primary judge.
In any event, as the mother tellingly demonstrates, even in his own cross-examination, the father admitted that some of the relevant tests were not “[chain] of custody” (Transcript 29 May 2019, p.44 line 21–24), which is apparent on the face of the eight test results themselves (Exhibit 1).
As to the matters raised in the father’s Summary of Argument at paragraph 22, the fact that the father annexed to his evidence 31 test reports, cannot deflect attention from the eight other tests.
This ground of appeal fails.

Error that the mother’s evidence was unchallenged – Ground 11

This ground provides:
Judge claims the mothers testimony, remained unchallenged, untrue, I did challenge it
(As per the original)
This appears to involve the father confusing the use of the word “untested” with “unchallenged.” At [84] the primary judge said “[u]ntil the final hearing in these proceedings, the evidence remained untested.” Her Honour was there employing a term of art, namely that it had not been challenged formally by way of cross-examination, so as to test it. Her Honour was not indicating that the father was not challenging the mother’s evidence. Indeed it was plain from his affidavits that he was.
This ground of appeal is based upon a misconception, and therefore must fail.

Erroneously accepting the mother’s allegations of risk and family violence – Grounds 12 and 16 and Summary of Argument paragraphs 16 and 18

It is convenient to deal with these challenges together.
Ground 12 provides:
no evidence paragraph 16 that there was family violence.
(As per the original)
Ground 16 reads:
Judge allows mothers false allegations of risk and violence, no police statements or evidence
(As per the original)
The father’s Summary of Argument at paragraphs 16 and 18 provide:
16.…under the heading ALLEGATIONS OF RISK AND FAMILY VIOLENCE paragraphs 6, 5, 7, 58 a-b-c-d, paragraph 59, 60, 61, 62, 63, 64, 65, 66, 67 and 68 there’s no evidence but only hearsay I’ve challenged all these to be false claims by the mother to strengthen her case Annex B Annex C Annex D.
…
18.…In paragraph 16 section 61DA of the Act for reasons of judgement 13/12/2019 the presumption does not apply where there are reasonable grounds to believe a party has engaged in abuse of a child or family violence Is untrue mother coaches a child who was only 3 years old when I lived with her to say 4 years later I hit him and the mother makes contradictory statements to ICL, reporter and police and Judge makes statement in reasons for judgement 21/11/2017 from paragraph 48A to 56, ANNEX V Annex W Annex X, Annex Y Annex Z.
(As per the original)
These grounds appear to be based upon an assertion that there needed to be objective evidence as to family violence, in order for such a finding to be made. Particularly, they appear to be founded on the assumption that, unless and until there are police statements to substantiate allegations, findings cannot be made. Leaving aside the plainly erroneous nature of that assumption, in any event, the father has been convicted of common assault of the mother post-separation, seemingly relating to events in January 2016. That is significant, not merely because of the verification of the facts underpinning the charge, but also because it is consistent with the mother’s other allegations.
As to the challenges made in the father’s Summary of Argument, suffice to say again that the conviction of the father for assaulting the mother speaks loudly to the fact of family violence between the parties, and compelled the displacement of the presumption of equal shared parental responsibility otherwise established by s 61DA of the Family Law Act 1975 (Cth).
These challenges are without merit.

Error that supervision is not safe – Summary of Argument paragraph 8 and 32

These paragraphs of the father’s Summary of Argument are as follows:
8.…Judge says no supervision services to guard against fathers’ risk to the child what risks no evidence again finding of facts which could not be supported by evidence. I’ve never hurt my Daughter Annex H.
…
32.…JUDGE says in page 33 paragraph 107 no evidence of any supervision in Town N nor any evidence to guard against my risks, what risks? Never proven nor do I pose a risk, yet in the mothers final orders sought in the mothers amended response filed 27/4/2018 on page 48 paragraph (5a) and (5b) she asks that the time be supervised in Town N or by her mother either way proving that the mother ain’t scared of me and that the judge knew there was a supervision centre in Town N.
(As per the original)

The primary judge dealt with the question of supervision as follows:
106.Next then is for the Court to consider whether the risks which have been identified might be ameliorated by supervision of the child’s time with the father. The mother proposes to relocate to the Town N area or indeed in the Sydney Metropolitan area. The evidence in support of that relocation is scant. However, she is the child’s primary carer and there is no competing application by the father for the child to live with him.
107.There is no evidence before the Court about what, if any, supervision services there might be available in the Town N area, nor is there any evidence as to whether or not the available supervisions services would be able to guard against the risks which the father poses to the child.
108.While an order for a child to spend no time with a parent is almost always an order of last resort, there are no alternatives available to this child at present. Even if the mother was to remain living in or near her current location, so that there would be less of a practical difficulty with the child spending time with the father, once again without specific evidence as to what safety guards there might be in place by a proposed supervision service, the Court would not be able to make a finding that the risks have been appropriately ameliorated.
(Footnotes omitted)
It is correct to say that the mother, up until the submissions at the end of the trial, was proposing that the father spend supervised time with the child. It is also correct to say that there was no evidence as to the standard, or even availability of supervision, in Town N. The father’s 2017 behaviours required regular police intervention. Contact centre supervision would have been unlikely to mitigate the risks which his behaviour then generated. In those circumstances, we are not persuaded that an error of a House v The King kind is established, in that plainly this course was open to her Honour. The fact that we may have concluded differently is insufficient to establish error.

Grounds alleging internal contradictions in the primary judge’s reasons – Grounds 2, 4, 6 and 18 and Summary of Argument paragraph 25

These grounds provide:
2.Judge allows visits to continue after [three] days hearing, saying no evidence I suffer mental health on may 29th 2019, yet [three] weeks later June 2019 says I do with no new evidence.
…
4.Judges inconsistencies and errors in judgement
…
6.in Paragraph 96 and Paragraph 100 she contradicts herself again, she acknowledges criminals are after me then in P100 she believes Im suffering mental health issues, she cant have it both ways. Findings of facts that contradict eachother.
…
18.on 27, 28, 29th may 2019 Judge says insufficient evidence Im a threat to my daughter, yet on 17th June she changes her mind with no new evidence, even after a one minute proposed order was rejected by Judge, therefore the Judge made a finding during the hearing in may 2019 that there was insufficient risk concerns to warrant the making of no contact orders as sought by the ICL and the [mother’s] Lawyers. her honour has contradicted this finding as stated [three] weeks later in June 2019 and in her final orders 13/12/19
(As per the original)
Paragraph 25 of the father’s Summary of Argument reads:
…Please read the reasons for judges decision 21/11/2017 from paragraph 48a all the way to paragraph 60, now please read reasons for judgement 13/12/2019 about the same incident from paragraph 61 to paragraph 65, no mention of me denying telling the mother she didn’t hit her head, nor any mention of judgment of judge in reasons for judgement on the 21/11/2017 about this incident in her latest reasons for judgment 2019. But she throws it out there to strengthen her case, why the father is getting no time. Its not true, the judge knows of the mother believed so why continue to bring her to visits for over [two] years, why except money, emails hoping I get better obviously an error by the judge v, w, x, y, z
(As per the original)
The most significant alleged contradiction is the assertion that the primary judge made findings on 29 May 2019 to the effect that there was no evidence that the father suffered poor mental health, and yet in the June iteration of the hearing, made a conclusion that the father suffered from mental health issues. However the assumption which underpins this particular ground is false, in that the primary judge made no findings on 29 May 2019 about anything other than in relation to an asserted flight risk attaching to the father, which she rejected (Transcript 29 May 2019, p.19 lines 44–46). In June 2019, her Honour did accede to an application to suspend the father’s time pending judgment, but that was advanced on the basis of the risk posed by the father’s conduct and behaviour, not any asserted flight risk. There is therefore no contradiction between the reasons for the refusal to suspend time in May 2019, and the suspension of time in June 2019. Grounds 2 and 18 fail.
As to the alleged contradiction between [96] and [100] of her Honour’s reasons, it is said that the primary judge’s acknowledgment of the father’s suggestion that the people pursuing him were “criminals” cannot sit with her later concluding that “the evidence suggests otherwise” than that the father does not suffer any mental health issues.
It is by no means the case that these two conclusions or statements are mutually exclusive. They are certainly not contradictory. Ground 6 fails.
The challenge made by the Summary of Argument at paragraph 25 is essentially that the primary judge’s reasons in the contravention judgment and the parenting judgment are inconsistent. We reject that suggestion. We can detect no tension between the two judgments, much less inconsistency.
It therefore follows that all the challenges based upon alleged contradictions by the primary judge fail.

Grounds alleging a failure to have regard to evidence – Grounds 7, 13, 15 and 17 and Summary of Argument paragraph 23

These grounds provide:
7.Judge makes no mention of sleeve 21 where [three] police officers state mother is being dishonest to strengthen her family case.
…
13.mother of child has [two] different statements Judge “puts no weight on it”
…
15.Judge Principle of Law is contradicted – mother makes different statements in ICL report and reporters report
…
17.Judge Puts no weight on mothers inconsistencies, nor on police statements supporting my version.
(As per the original)
Paragraph 23 of the father’s Summary of Argument reads:
…The judge allows the false “allegations of risk and family violence” in the reasons for judgement 2019, not one of them are true, in paragraph 58a no evidence mother says she spoke to police, no event number provided, mother says the police told her to go to family court. Really? 58b, c, d and Paragraph 59, 60 and 61 she has never reported to police. If the mother believed that I abused the child, why bring her to visits for another [two] years and [two] months. Clearly if the judge believed such why not stop visits in 2017.
(As per the original)
At the outset, it is useful to state that it is not incumbent upon a trial judge to refer to every piece of evidence relied upon by the losing party, or to traverse every argument advanced by them (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
Turning to the first challenge raised under this conceptual grouping, it is said that the primary judge erred by failing to mention material produced by New South Wales Police under subpoena, where three police officers expressed a conclusion that the mother was being dishonest so as to strengthen her family law case (Exhibit 5).
It is correct to say that her Honour makes no reference to this material in her reasons. However as we have just noted, it was not incumbent upon the primary judge to traverse every piece of evidence which supported the father’s case. Moreover, in any event, the weight given to the opinions of police officers who were not produced for cross-examination, and whose reasoning for reaching that opinion was not exposed, means that even if the primary judge had adverted specifically to the evidence, it is likely to have commanded very little, if any, weight.
Next it is asserted that the mother made contradictory statements, which the primary judge failed to take into account. In his Summary of Argument, the father relied upon two specific matters. The first is an apparent inconsistency between what the mother is recorded as having told the Family Report writer, namely that the father “has not actually hit her” (Family Report dated 7 February 2018, paragraph 18), and the mother’s affidavit filed 11 August 2016, paragraph 37 to like effect, with what was in the Independent Children's Lawyer’s Case Outline filed 4 December 2018 at p.5. However all that appears in the latter document is a reference to the father’s conviction for common assault of the mother. Thus there is no contradiction between these materials.
Next, the father refers to the Family Report writer’s statement that the mother was “somewhat vague and contradictory” in relation to the history of her relationship with the father (Family Report dated 7 February 2018, paragraph 45).
However, the simple fact is that both parties agree that they were in a short relationship, and there was no significant matter in dispute in relation to it, other than the mother’s allegations of coercive and controlling behaviour by the father.
Otherwise the father did not identify, in his written material or elsewhere, further allegedly contradictory statements of the mother, and in any event, even if there were any inconsistencies in the mother’s versions given over time, it by no means precludes one of those versions being accepted as accurate, or indeed, mandates the rejection of the entirety of the witness’ evidence.
It therefore follows that all of the grounds which allege a failure on the part of the primary judge to have regard to evidence are not established and fail.
With regards to the father’s challenge at paragraph 23 of the Summary of Argument, it is plain that the primary judge was well aware that the child had been spending unsupervised time with the father for a considerable period, without incident, and that the mother had complied with orders requiring her to do so. However, the weight which that evidence deserved was a matter quintessentially for the primary judge. The fact we may have given it different weight, and in consequence made different orders, is not sufficient to establish appealable error.

Failure to order a further psychological report – Summary of Argument paragraph 27

This paragraph reads:
…psychology Report Says I Do Not Suffer From Mental Health, if The Judge Rejects This Report Why didn’t the judge re-order a psychology report?
(As per the original)
During the proceedings, the primary judge ordered the father to provide a report from his psychologist, which he did. The fact that the primary judge thereafter gave it no weight did not require her Honour to first require a report based upon a full history to be presented. It is for the parties to marshal the evidence, not the Court.
This ground fails.

Outcome

No ground of appeal is established and therefore the appeal fails. It will be dismissed. In that event, no party sought any order for costs.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Tree JJ) delivered on 20 November 2020.

Associate:

Date: 20 November 2020