FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Eastley & Eastley [2022] FedCFamC1A 101
Appeal from: Eastley & Eastley [2021] FedCFamC1F 212 Appeal number(s): NAA 89 of 2021 File number(s): CAC 1729 of 2020 Judgment of: AUSTIN, WILLIAMS & HARPER JJ Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Unacceptable Risk – Where the primary judge found the father posed an unacceptable risk of harm to the children and made orders providing for the mother to have sole parental responsibility for and residence of the children, with the children spending no time nor communicating with the father – Error of law – Where the primary judge was not obliged at law to settle nominated factual controversies – Inadequacy of reasons – Where the primary judge’s reasons are adequate as it can be discerned why the findings were made – Failure to make findings – Where there could be no error in abstaining from making a definitive factual finding when the evidence precludes it – Where it is well accepted that an accumulation of factors not individually proven on the balance of probabilities can still be enough to demonstrate the existence of an unacceptable risk – Mistake of fact – Where the father submitted the mere possibility of his sexual deviance was not enough to support the finding he poses an unacceptable risk of harm – Where the finding was open on the evidence – No error identified – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Athens v Randwick City Council [2002] NSWCA 83
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170
Savage v Lunn [1998] NSWCA 203
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
U v U (2002) 211 CLR 238; [2002] HCA 36
Heydon, J.D, Cross on Evidence (LexisNexis Australia, 13th edition, 2021)
Number of paragraphs: 68 Date of hearing: 28 June 2022 Place: Heard in Sydney, delivered in Newcastle Counsel for the Appellant: Mr Kearney SC with Ms Carter Solicitor for the Appellant: Alliance Legal Counsel for the Respondent: Dr Smith with Ms Tiernan Solicitor for the Respondent: Dobinson Davey Clifford Simpson The Independent Children's Lawyer: Filed Submitting Notice 14 February 2022 ORDERS
NAA 89 of 2021
CAC 1729 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR EASTLEY
Appellant
AND: MS EASTLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, WILLIAMS & HARPER JJ
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s costs of and incidental to the appeal fixed in the sum of $41,555.
Note: The form of the order is subject to…
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- [2022] FedCFamC1A 101
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CaseChat Overview and Summary
The appeal in Eastley & Eastley was brought by the father against the primary judge’s orders made under the Family Law Act 1975 (Cth) that the children not spend any time with him and that he not contact them until they attained their majority. The children, born in 2017 and 2019, had been living with their mother since the parents’ separation in 2020, following the mother’s allegations of sexual abuse against the father. The primary judge found the father posed an unacceptable risk of harm to the children, and that the children would likely suffer emotional harm if they were to spend time with him. The primary judge concluded the children should live with their mother and not spend any time with their father.
The legal issues before the court were whether the father presented an unacceptable risk of harm to the children and, in any event, whether the elder child would be at risk of emotional harm if he were to spend any time with the father. The primary judge found the father’s potential deviant interest, poor judgment, and poor boundary setting, combined with the elder child’s potential trauma and adverse reaction, constituted an unacceptable risk of harm. The father appealed the primary judge’s findings and orders. The court considered the evidence and submissions from both parties, and the findings and conclusions of the primary judge.
The court found the primary judge’s reasoning and conclusions were well-founded and supported by the evidence. The court held the primary judge was correct to find the father posed an unacceptable risk of harm to the children and that the children would likely suffer emotional harm if they were to spend any time with him. The court found the primary judge’s orders were appropriate and in the best interests of the children. The court dismissed the father’s appeal with costs.
The final orders of the court were that the mother have sole parental responsibility for the children, that the children live with their mother, that the children not spend any time with or communicate with their father, and that the father be restrained from approaching or contacting the children until they attained their majority. The father’s appeal was dismissed with costs.
The legal issues before the court were whether the father presented an unacceptable risk of harm to the children and, in any event, whether the elder child would be at risk of emotional harm if he were to spend any time with the father. The primary judge found the father’s potential deviant interest, poor judgment, and poor boundary setting, combined with the elder child’s potential trauma and adverse reaction, constituted an unacceptable risk of harm. The father appealed the primary judge’s findings and orders. The court considered the evidence and submissions from both parties, and the findings and conclusions of the primary judge.
The court found the primary judge’s reasoning and conclusions were well-founded and supported by the evidence. The court held the primary judge was correct to find the father posed an unacceptable risk of harm to the children and that the children would likely suffer emotional harm if they were to spend any time with him. The court found the primary judge’s orders were appropriate and in the best interests of the children. The court dismissed the father’s appeal with costs.
The final orders of the court were that the mother have sole parental responsibility for the children, that the children live with their mother, that the children not spend any time with or communicate with their father, and that the father be restrained from approaching or contacting the children until they attained their majority. The father’s appeal was dismissed with costs.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the appeal is dismissed with costs.BACKGROUND The parties commenced cohabitation in 2011, married in 2013 and finally separated in 2020. The two children were born in 2017 and 2019. They were respectively aged four and two years at the time the trial concluded and the appealed orders were later pronounced. At or about the time of separation, the mother formed the view the father had sexually abused the elder child and so withheld both children from him. The father commenced proceedings seeking parenting orders under Pt VII of the Family Law Act 1975 (Cth) a month later in August 2020. In September 2020, the proceedings were transferred to the Family Court of Australia from the Federal Circuit Court of Australia (as the courts were then known). In December 2020, the primary judge made interim orders providing for the children to live with the mother and for only the younger child to spend supervised time with the father. However, those orders were only implemented for about six weeks. The mother ceased compliance when informed by the supervisor the father had experienced penile erection when with the younger child, which the father denied (at [6]). The father made no attempt to enforce the orders after January 2021. As a consequence, the younger child spent no time with the father after January 2021 (at [7]), though the elder child spent no time with him after the marital separation in July 2020, other than when they were interviewed together by the single expert psychologist in November 2020 (at [5], [144] and [196]). As identified by the primary judge (at [1], [8] and [23]), the two principal issues at trial were, first, whether the father presented an unacceptable risk of harm to the children, and secondly, in any event, whether the elder child would be at risk of emotional harm due to fear and trauma he would likely endure if he were to spend any time with the father. The trial concluded in May 2021 and judgment was delivered in November 2021. The orders provided for the mother to have sole parental responsibility for the children and for them to live with her (Orders 2 and 3). Even though it was common ground the children should continue to live with the mother (at [1] and [229]), curiously, the father still appeals from the residence order. The allocation of parental responsibility was always in dispute (at [14]–[17] and [230]), so his appeal from that order is at least understandable. The orders directed that the children not spend any time nor communicate with the father and restrained him from approaching or contacting the children until they attain their majority (Orders 4 and 5). The father’s elimination from the children’s lives followed upon findings made by the primary judge that he poses an unacceptable risk of harm to them, which risk could not be satisfactorily ameliorated by any form of order (at [259]–[271]). The primary judge found the unacceptable risk of harm comprised a “suite of risks” (at [259]), comprising the father’s “potential deviant interest” (at [253] and [260]), his “poor judgment and poor boundary setting” (at [261]), the elder child’s potential trauma from spending time with the father (at [262]), and the elder child’s likely adverse reaction if the younger child was to spend time with the father alone (at [263]).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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