FAMILY COURT OF AUSTRALIA
Farrand & Mahdi [2021] FamCAFC 122
Appeal from: Farrand & Mahdi [2020] FamCA 875 Appeal number(s): NOA 76 of 2020 File number(s): BRC 11658 of 2018 Judgment of: AINSLIE-WALLACE, AUSTIN & TREE JJ Date of judgment: 22 July 2021 Catchwords: FAMILY LAW – APPEAL – Appeal against final parenting orders providing for the children to live with the respondent and spend no time with the appellant – Risk of harm – No apprehension of bias – Adequate reasons – No error in the acceptance of the respondent’s evidence over that of the appellant – Weight challenges – Findings open on the evidence – Decision of the primary judge not plainly wrong – No error of law – Appeal dismissed – Appellant to pay the costs of the respondent and the Independent Children’s Lawyer in a fixed sum. Legislation: Family Law Rules 2004 (Cth) Sch 3 Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
R v Mahoney (2000) 114 A Crim R 130; [2000] NSWCCA 256
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Division: Appeal Division Number of paragraphs: 161 Date of hearing: 11 May 2021 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Geddes QC with Ms Bryan Solicitor for the Appellant L&S Lawyers Counsel for the Respondent: Dr Brasch QC Solicitor for the Respondent: Murdoch Lawyers Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
NOA 76 of 2020
BRC 11658 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS FARRAND
Appellant
AND: MR MAHDI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, AUSTIN & TREE JJ
DATE OF ORDER:
22 JULY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 March 2021 is allowed.
2.The appeal against orders made by a judge of the Family Court on 16 October 2020 is dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $31,295.37 within thirty (30) days of the date of this order.
4.The appellant pay the Independent Children’s Lawyer’s costs fixed in the sum of $4,161.90 within thirty (30) days of the date of this order
.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 17.02A(b) of the Family Law Rules 2004 (Cth)), or…
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CaseChat Overview and Summary
The court found that the appellant’s allegations against the respondent were unfounded and had been rejected by both the police and the coroner. The primary judge concluded that Ms Farrand's behaviour, including her unsubstantiated allegations and attempts to undermine the respondent’s relationship with the children, posed a risk to the children’s welfare. The court found no evidence of bias in the primary judge’s decision and confirmed that the reasons provided were sufficient. The court also found that the primary judge’s acceptance of the respondent’s evidence over that of the appellant was not erroneous, as the findings were supported by the evidence and open on the material before the court. The court held that the primary judge’s decision was not plainly wrong and did not contain any error of law.
The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs in the sum of $31,295.37 and the Independent Children’s Lawyer’s costs in the sum of $4,161.90, both within thirty days of the date of the order. The form of the order is subject to entry in the court’s records, and any minor typographical or grammatical errors may be subject to review or variation under the Family Law Rules 2004 (Cth).
Orders
Orders of the court
NOA 76 of 2020
BRC 11658 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS FARRAND
Appellant
AND:
MR MAHDI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, AUSTIN & TREE JJ
DATE OF ORDER:
22 JULY 2021
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 8 March 2021 is allowed.
2. The appeal against orders made by a judge of the Family Court on 16 October 2020 is dismissed.
3. The appellant pay the respondent’s costs fixed in the sum of $31,295.37 within thirty (30) days of the date of this order.
4. The appellant pay the Independent Children’s Lawyer’s costs fixed in the sum of $4,161.90 within thirty (30) days of the date of this order
.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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appellant maintained that while she had accused the father of murdering the mother she would not discuss her views with the children. The primary judge dismissed the appellant’s application and made a number of injunctions restraining her from having any direct contact with the children.THE PRIMARY JUDGE’S CONSIDERATION The primary judge acknowledged that given the appellant’s negative view of the father in the past it was “perhaps understandable… that the [appellant] would reject the non-suspicious circumstances of her daughter’s death, particularly when the [appellant] said that when she last spoke to the mother, she was happy and talked about future plans” (at [28]). After reflecting on the “terrible grief” the appellant would have experienced, the primary judge said:28.… However, the [appellant’s] behaviour, including making extraordinary allegations against the father without any reasonable foundation, and her intrusion and undermining of the father’s relationship with the children, combined with her extraordinary lack of insight, cannot be neutralised by a simple acknowledgement that she is a grieving mother. The primary judge set out in some detail the appellant’s allegations against the father and to whom they were made including forwarding to the coroner numerous documents to be taken into account in the determination of the circumstances of the mother’s death, which included a recording of the children answering questions asked of them by the appellant and a recording of a session between a clairvoyant/psychic and the appellant in which the clairvoyant confirmed that the father had murdered the mother. Her Honour also listed the allegations or more accurately the insinuations made by the appellant in relation to the father; about the company he kept and his parenting of the children (at [72]). Her Honour concluded that the allegations made by the appellant against the father and his friends were “vicious and without foundation” and had been rejected by the police and the coroner (at [73]). The primary judge found that before the mother’s death the children enjoyed a meaningful relationship with the appellant and said that this would likely have continued but for the appellant’s suggestions that the father played a role in the mother’s death and what the father saw as her interference in and undermining of his parenting (at [15]). Although the primary judge acknowledged that the appellant wished to put the events of the past behind her, she noted that the appellant’s trial affidavit contained criticisms of the father, his parenting style and included reference to an allegation she made against him in 2015 (at [74]). A significant plank in the appellant’s case was her contention that despite her allegations and criticisms of the father, she had not shared those views with the children and she contended that if she was reintroduced to the children’s lives she would contain herself because she had “moved on”. The primary judge rejected that she had “moved on” and concluded that the appellant’s attempts to undermine the father’s parenting were of long standing and, on occasion she had exposed the children to those views (at [78]).