Fiedler & Vitale
[2025] FedCFamC1A 7
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fiedler & Vitale [2025] FedCFamC1A 7
Appeal from: Fiedler & Vitale (No 2) [2024] FedCFamC1F 584 Appeal number(s): NAA 242 of 2024 File number(s): NCC 983 of 2018 Judgment of: RIETHMULLER, KARI & CHRISTIE JJ Date of judgment: 5 February 2025 Catchwords: FAMILY LAW – APPEAL – CHILDREN – Where the father appeals final parenting orders – Where the father asserts a lack of procedural fairness – Where the primary judge was not bound by the parties’ proposals – Where the father asserts a lack of reasons – Where the reasons give careful consideration of the evidence – Where the primary judge conducted an assessment of the risk of harm that each parent presented – Where there are no challenges to the findings made by the primary judge – All grounds fail – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 65DAAA Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Epping & Merl [2015] FamCAFC 81
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Malpass & Mayson (2000) FLC 93-061; [2000] FamCA 1253
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oberlin& Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Sun Alliance Insurance Ltd v Massoud [1989] VR 8; (1991) FLC 91-191
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 66 Date of hearing: 11 December 2024 Place: Sydney Counsel for the Appellant: Mr Harper Solicitor for the Appellant: Lindeman Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: McNeilly Lawyers Counsel for the Independent Children’s Lawyer: Ms Ingenito Solicitor for the Independent Children’s Lawyer: Stevens Family Law & Mediation ORDERS
NAA 242 of 2024
NCC 983 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FIEDLER
Appellant
AND: MS VITALE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
RIETHMULLER, KARI & CHRISTIE JJ
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Appeal NAA 242 of 2024 be 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 Fiedler & Vitale has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER, KARI & CHRISTIE JJ:
INTRODUCTION
This is an appeal from parenting orders regarding the parties’ eight year old child, made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 23 August 2024 (“the parenting orders”).
Of significance, the parenting orders effected a change of the child’s living arrangements from the father to the mother.
The reasons were delivered ex tempore on 23 August 2024, seven days after the conclusion of the final hearing that spanned six sitting days. The final hearing took place, despite the Court being presented with a proposed Minute of Order to resolve the parenting dispute on the second day of the trial. The proposed parenting orders would have seen the child continuing to live with the father and spend time with the mother. The primary judge however was not prepared to endorse the agreement reached between the parties without hearing oral evidence.
It is clear from the reasons, that the primary judge was in the invidious position of fashioning parenting orders, in circumstances where findings were made (which are not the subject of challenge in this appeal), that there were significant risks of harm to the child in each of the parent’s households. At the commencement of the reasons the primary judge commented:
8.There is, unfortunately, at the end of the trial, no good option for the child before this Court. I consider both the father's and the mother's households to present significant risks to the child for full-time live-with orders, and if there was another option, I would consider it.
9.The Court has invited the NSW Department of Communities and Justice (“DCJ” or “the Department”), who have had involvement with both households, to intervene. The request was made on two occasions. DCJ declined to intervene on two occasions and is not a party.
The father’s appeal concerns all of the parenting orders made by the primary judge.
For the reasons that follow the appeal shall be dismissed.
BACKGROUND
The parties to the proceedings are the child’s parents. At the time of trial, the mother was 39 years of age and the father was 46 years of age.
The child was born in July 2016 and was eight years old at the time of trial.
The mother has three other children who live with her and are the child’s half-siblings. The child’s two older half-siblings (aged 12 and 10 at the time of trial) each have significant behavioural issues and high needs as a result of each having a diagnosis of Autism Spectrum Disorder. The father has the care of a child who is his second cousin (aged 11 at the time of trial). He too has significant behavioural issues and needs. A feature of the behaviours of the child’s two older maternal half-siblings and that of the father’s cousin, is that they have each been physically aggressive towards the child.
At the commencement of the trial the father was in a relationship with Ms D. By the conclusion of the trial, that relationship had broken down. The primary judge was told this was because of the “unhealthy nature of their relationship” (at [72]).
The circumstances of the child prior to the commencement of the proceedings included:
(a)The child was born as a result of a brief three-month relationship between the parties, with the parties separating before the child’s birth.
(b)The father did not meet the child until the child was three months old.
(c)In December 2016 the parties attended mediation and reached agreement about the father spending time with the child.
(d)By March 2018 the parties’ agreement had broken down and after four months of no time, the father commenced proceedings.
(e)Final orders were made by consent in the earlier proceedings on 26 February 2021. Of significance those orders provided for the child to live with the mother and spend alternate weekends and half school holidays with the father.
(f)The mother ceased the child’s time with the father on 19 November 2021 when she became aware of the existence of an AVO between the father and his partner, Ms D.
(g)The father next saw the child on 25 January 2022 when the mother asked the father to collect the child from her care as there had been an incident at the home of the maternal grandmother where she and the child had been living together with the maternal uncle. Findings were made that this incident concerned the maternal uncle (who suffers from a “significant intellectual disability”), attempting to “strangle” the child.
(h)The child essentially lived with the father since this time.
(i)The mother was admitted to a mental health facility between 29 January 2022 and 31 January 2022.
(j)On 2 March 2022 the mother attended the child’s school and removed him.
(k)On 3 March 2022 the father collected the child from school and did not send him to school again until 28 March 2022, he said out of fear that the child would be at risk of harm as the mother had resumed living with the maternal uncle.
The proceedings were commenced by the father in April 2022.
Throughout the proceedings the child remained living with the father, and spent time with the mother as a consequence of orders made by consent on 9 December 2022 which provided for the child to spend time with the mother each alternate Saturday and Sunday from 9.00 am until 5.00 pm.
The parties agreed pursuant to s 65DAAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that the Court ought reconsider the earlier final parenting order made 26 February 2021.
THE ORDERS MADE AND REASONS OF THE PRIMARY JUDGE
The suite of parenting orders provided for:
(a)The child to live with the mother (Order 4) and that she have sole parental responsibility and sole decision making for the child (Order 3).
(b)The child to spend time with the father effectively on one occasion each month for a period of four hours on each occasion (Order 5), with such time to occur in only “public places, including parks, beaches and shopping centres etcetera” (Order 6).
(c)The mother to suspend time spending and provide make-up time to facilitate the child’s attendance at any “prior engagement” (Order 7).
(d)Video call communication between the father and the child to take place each Wednesday for a period of 30 minutes, together with communication on the child’s and the father’s birthday (Order 9).
(e)Changeover arrangements (Order 8).
(f)Authority for the father to obtain information directly from the child’s school (Order 10) and medical providers (Order 11).
(g)The method of the parties’ communication with each other (Orders 12-14).
(h)Injunctions restraining each parent from permitting contact between the child and four named persons (Order 15(a)-(d)).
(i)Injunctions restraining each parent from denigrating the other parent, physically disciplining the child, exposing the child to family violence, or discussing the proceedings or any other litigation involving the parents in the presence or within hearing of the child (Order 15(e)-(g) and 15(i)).
(j)Injunctions restraining the parties from consuming illicit substances in the presence of the child, while the child is in their respective care, or for 48 hours prior to the child coming into their respective care (Order 15(h)).
(k)An injunction restraining the father from consuming alcohol in the presence of the child, whilst he is responsible for the care of the child or for 48 hours prior to time with the child (Order 16).
(l)The mother to ensure that the child attends school (Order 17), and all medical appointments (Order 18).
(m)The parties to keep each other informed as to their respective residential addresses and text numbers for communication (Order 19).
(n)The mother to advise the father of the details of the child’s school and treating medical practitioners (Order 20).
(o)The father to immediately notify the mother if the child becomes ill or requires emergency medical attention whilst in the father's care (Order 21).
(p)The mother to notify the father if the child becomes seriously injured or requires hospitalisation (Order 22).
(q)The mother to provide a copy of the orders to the child’s “educational providers” (Order 23).
(r)The mother to provide a copy of the orders and the reasons to the child’s treating medical professionals (Orders 24–26).
(s)A copy of the orders and the reasons to be provided to the NSW Department of Communities and Justice (“DCJ”) (Order 27).
(t)A copy of the orders to be provided to the Court Children’s Service and the Court Child Expert (Order 28), with the Court Child Expert and Independent Children’s Lawyer (“ICL”) to explain the orders to the child (Order 29).
(u)The child to immediately transition to the mother’s care that day (Order 31) with the father to provide the child’s clothes and other possessions 2 days later (Order 32).
The reasons expose the primary judge’s detailed and careful analysis of the multitudinous difficulties and risk factors facing this child.
Of significance, the primary judge made findings throughout the reasons which are not the subject of challenge in this appeal.
Importantly, the primary judge made a finding that each of the parents, and the father’s partner, Ms D, were “unreliable” witnesses, finding (at [73]):
… They were all happy to lie at will, even in the face of overwhelming evidence that what they were saying was clearly untrue. The only difference between them was that, sometimes, the mother made concessions in the face of overwhelming documentary evidence…
In those circumstances, the primary judge appropriately concluded that he would have regard to the “objective documentary evidence” (at [74]) in making findings, which included police and DCJ records.
Where the mother is concerned, and despite the mother’s denials during her evidence, ultimately by closing submissions, her counsel “effectively conceded the risks identified by the expert, the ICL and the father” (at [177]–[178]), and findings were made about:
(a)Her long term poor mental health (at [180]–[189]).
(b)Her “long history of neglect; neglect of the children’s medical needs, neglect of the children’s educational needs, neglect of the children’s emotional needs, neglect of the children’s safety needs” (at [186] and [191]–[195]).
(c)Her substance abuse (at [196]).
(d)Her housing instability (at [197]–[198]).
(e)Her limited protective capacity to protect the child from physical abuse by either the maternal uncle, or from the older maternal half-siblings (at [199]–[220]).
(f)Her limited parenting capacity (at [222]).
Where the father is concerned, there were findings about:
(a)The father’s physical assaults upon the child (at [273]–[277]).
(b)The father’s use of cannabis and alcohol (at [102], [107–116], and [118]) .
(c)The father’s numerous prior criminal convictions including five separate convictions for common assault, with one of the victims of these offences being a former partner of the father. An ADVO was made in relation to that victim, which was the subject of immediate breach by the father (at [88]–[120]).
(d)The family violence perpetrated by the father towards Ms D, with the primary judge describing the relationship as one “marred by extensive family violence” (at [121]–[176]).
(e)An incident of family violence that involved the father striking Ms D’s 15 year old child, whilst drug-affected (at [169]).
(f)The family violence perpetrated by the father towards the mother (at [172]).
THE APPEAL
The father filed a Notice of Appeal on 20 September 2024 setting out 12 separate grounds of appeal. However, those grounds of appeal were abandoned in their entirety when the father filed an Amended Notice of Appeal on 22 November 2024 setting out five separate grounds of appeal.
Before turning to consider each ground of appeal, it is apparent from the appellant’s Summary of Argument that the appellant took issue with the primary judge’s reasons, as this forms the foundation for the errors asserted Grounds 1–3.
Overarching the grounds of appeal, and raised in the Summary of Argument (but not in oral submissions), the appellant contended that the primary judge fell into error for two separate reasons:
(a)Firstly, because the primary judge did not apply a “structured and orthodox” approach to the assessment of risk and unacceptable risk (Appellant’s Summary of Argument, paragraph 5); and
(b)Secondly, because the primary judge made orders directed to the NSW DCJ which were contended were designed to “coax a non-party” “into providing assistance which he [the primary judge] believed was necessary for the child” (Appellant’s Summary of Argument, paragraph 6).
Grounds 1–3 are directed to the first contended error. Ground 4 is directed to the second contended error. Ground 5 is not directed to either contention, and rather, complains of a lack of procedural fairness.
As shall be elucidated when turning to each of the grounds of appeal, we do not agree that the primary judge fell into error in relation to each of the separate contentions.
In circumstances where Ground 5 asserts a lack of procedural fairness, it is appropriate to deal with this ground first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
Ground 5 – The primary judge erred by failing to afford procedural fairness insofar as aspects of the orders made were not sought by any party, not raised with the expert and not identified by the primary judge and in particular frequency and quantum of the child’s time with the father
There are two aspects to this ground of appeal agitated by the appellant. Firstly, in relation to the orders for the father to spend time with the child, and secondly in relation to the various injunctive orders made by the primary judge.
In relation to the orders for spending time, the appellant contends that the primary judge failed to afford procedural fairness as the orders made by the primary judge:
(a)Had not been foreshadowed to the parties thus giving them each, and particularly the father a chance to be heard; and
(b)Afforded the father less time with the child than that proposed jointly by each the mother and the ICL at the conclusion of the trial.
As part of this complaint, the appellant argued that there was a significant quantitative difference between the actual time ordered, that would see the father spending time with the child once each month (12 occasions each year), as against the time that the mother and the ICL proposed, which would have seen the father spending time with the child on approximately 30 occasions each year.
Whilst we agree that the primary judge did not foreshadow the precise orders ultimately made, and that the time ordered between the father and the child was less than what the mother and the ICL proposed, procedural fairness only requires the parties to be on notice of the ambit of the orders that may be made.
As earlier identified, on the second day of the trial and following negotiations that spanned the first day of the trial, the parties invited the primary judge to make final orders resolving the proceedings.
The orders the parties and the ICL proposed would have effected:
(c)A continuation of the child’s living arrangement with the father;
(d)The parties having joint decision making; and
(e)A time spending arrangement for the child with the mother on alternate weekends from 5.00 pm Friday until 7.00 pm Sunday, together with one half of the school holidays.
In refusing to make the orders proposed by the parties without hearing oral evidence, the primary judge commented (Transcript 5 July 2024, p. 4 lines 5-8):
I’ve seen that. Look, I’ve read the material in detail and there’s no possible way I can approve that without a trial. On the evidence that has been filed, which I have read with great care, there’s a serious trialable [sic] case about whether the father is an unacceptable risk…
(Emphasis added)
We consider that this comment coupled with the primary judge’s refusal to make the orders promoted by each of the parents and the ICL, signalled to the parties from the commencement of the trial two things:
(a)Firstly, the primary judge did not consider himself constrained by the parties’ proposals (a correct application of the principles in U v U (2002) 211 CLR 238); and
(b)Secondly, the primary judge delineated the ambit of the dispute to include at one end of the spectrum the orders proposed by the parties which would have seen the child remain living with the father, and at the opposite end of the spectrum, orders that addressed the primary judge’s apprehension that the father was an unacceptable risk of harm to the child. Foreseeably such orders would have included orders that provided no time spending between the father and the child.
These opening comments were reinforced by the primary judge’s comments to the ICL during the ICL’s closing submissions; made at a point when the primary judge understood that the ICL and the mother were promoting orders that would provide for a change of primary care to the mother and time spending between the father and the child (Exhibit MFI18) (Transcript 16 August 2024, p. 471 line 46 to p.472 line 3):
… I mean, there’s two different issues. Anyway – indeed, effectively, you’re asking me to accept the father’s case against the mother and the mother’s case against the father, and that’s certainly on the cards. But given what you’ve just said, what about the risks, then, of the child – I mean, on one view, it’s a no time case with the father, but you’ve allowed some time.
(Emphasis added)
We consider these comments by the primary judge made it explicit to the parties that, having by that stage heard all of the evidence in the final hearing, he continued to actively consider orders different to those proposed by the mother and the ICL, including orders for no time spending between the father and the child.
Importantly, these comments of the primary judge sequentially occurred at a time prior to either the father’s or the mother’s counsel addressing the Court with closing submissions.
In Allesch v Maunz (2000) 203 CLR 172, Kirby J made the following comments when discussing procedural fairness:
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
…
38…it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
(Footnotes omitted)
(Emphasis added)
With this in mind, the Court is not to know the forensic decisions made when putting the father’s case at trial. What is known, however, is that throughout the final hearing, and despite the forewarnings of the primary judge at the commencement of the trial and during closing submissions, the father only ever agitated orders that provided for the child to live with him and spend time with the mother. No alternative position was put by the father if the mother’s case was made out and/or if the Court determined (as repeatedly foreshadowed as a possibility by the primary judge) that the father presented an unacceptable risk of harm to the child.
As the Full Court stated in Oberlin& Infeld (2021) FLC 94-017 at [22]:
…the primary judge was not bound to conclude the case by selecting between the suites of orders propounded respectively by the parties and the ICL. Once they failed to reach a compromise, the paramount consideration in the litigation was the children’s best interests and the orders which were most suited to achieve that purpose were the product of the primary judge’s exercise of discretion, irrespective of the competing orders for which the parties and the ICL advocated. Orders are not vitiated merely because they do not match the orders devised by the parties or the ICL (U v U (2002) 211 CLR 238 at 284–285 and 263).
While we accept that there is a quantitative difference between the time spending ordered by the primary judge as against that proposed by the mother and the ICL, the primary judge understood and considered these matters, but determined that while he had considered making a “no-time order”, he did not do so because “on balance” he accepted that there was “some benefit” to the child maintaining a relationship with the father (at [320]).
Turning to the injunctions made by the primary judge, when asked during the hearing of the appeal what further evidence might have been adduced by the father and/or submissions made in relation to the injunctions that were made, the father’s counsel properly conceded that nothing further would have been put and that the range of injunctions that were made were open on the evidence before the Court at the final hearing.
Moreover, counsel for the appellant properly conceded that absent the procedural fairness complaint regarding the orders for time between the father and the child being made out, the alleged denial of procedural fairness in relation to the injunctions that were made would not have of itself given rise to error.
There is accordingly no merit in this ground.
Ground 1 – The primary judge erred by failing to conduct a prospective unacceptable risk analysis of the circumstances of [the] child in both households
Ground 2 – The primary judge erred by failing to conduct a real evaluation of the relevant s 60CC factor and instead regarded an issue of “slightly less risk” as determinative. In doing so the primary judge elevated s 60CC(2)(a) above other factors
Ground 3 – The primary judge erred by failing to give adequate reasons explaining determinations, if made, of unacceptable risk and the balancing of competing s 60CC factors
We deal with Grounds 1–3 collectively in circumstances where the appellant relied on the submissions put in relation to Ground 1 in relation to Grounds 2 and 3.
To the extent that these grounds complain about a lack of reasons, as identified by the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266, citing with approval Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
When regard is had to this test, we do not agree that the reasons are inadequate.
Rather, as earlier identified, we consider the reasons evince a careful and detailed consideration of the evidence before the Court, and the reasoning upon which the parenting orders were made. The reasons clearly identify that the primary judge considered both parents to present a risk of harm to the child and that on balance the risk presented in the mother’s home was slightly less; which in the face of no other option, was the living arrangement that was considered by the primary judge to be in the child’s best interests.
In coming to this conclusion, the primary judge conducted an assessment of the risk of harm that each of the parents presented. This assessment was done in an orthodox manner (per Isles & Nelissen (2022) FLC 94-092 at [83]–[86]), by making findings (as earlier identified) about the existence of certain facts and circumstances and thereafter undertaking a prospective evaluation in light of those findings as to the risk of harm posed by each of the parents (in relation to the mother at [185], [188], [189], [195], [196], [201], [207], [211], [216], [301], [305], [309], and in relation to the father at [215], [280], [289], [299], [300], [304], [317]).
Where there has been no challenge to the findings made by the primary judge, to ground the evaluative assessment of risk, the appellant faces some difficulty establishing any error alleged in these grounds.
Relevantly, section s 60CC(2) of the Act provides six general considerations for determining a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
It is clear from the reasons that the primary judge had at the forefront of his reasoning the safety of the child (per s 60CC(2)(a) and s 60CC(2A)). As such, we do not consider it necessary for the primary judge to use the words “unacceptable risk” when conducting the assessment of the various risks of harm posed by each of the parents; particularly in circumstances where the primary judge did not ultimately go on to make orders for no time between the father and the child.
Moreover, whilst we agree with the submission that no one consideration prescribed by s 60CC(2) is determinative of a child’s best interests, it is difficult to fathom a circumstance in which s 60CC(2)(a) would not be given prominence in the line of reasoning, if the Court was of the view that a child was not safe and/or where the child was at risk of some form of harm; as was the case here.
With this in mind, it follows, that in prioritising the child’s safety, and ultimately determining that there was a risk of physical harm to the child and/or exposure to family violence in the father’s household, the primary judge in making orders for the child to spend limited time with the father, also acted in accordance with the obligation created by s 60CG of the Act, which provides:
60CG Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
To the extent that Ground 2 appears on its face to be a challenge to the weight afforded by the primary judge to s 60CC(2)(a), we note:
(a)To the extent that it is a challenge to the weight given by the primary judge to the various factors prescribed by s 60CC(2), the principles identified in House v The King (1936) 55 CLR 499 (at [504]–[505]) apply. As such, absent legal, factual or discretionary error, which was not argued, this ground is unable to succeed in light of the wide ambit of discretion provided by the statute (Gronow v Gronow (1979) 144 CLR 513 at 519–520; Norbis v Norbis (1986) 161 CLR 513); and
(b)In submissions, the appellant eschewed any interpretation of this ground as a weight challenge.
Grounds 1–3 fail.
Ground 4 – The primary judge erred by making aspirational orders involving intermediaries rather than determining the matter on the evidence presented
We do not agree with the premise of this ground in so far as any assertion that the primary judge made aspirational orders.
In submission, the complaint appeared to be directed to Order 27 which concerns the NSW DCJ, which provides:
27.A copy of these Orders and the written reasons for Judgment are to be provided to the NSW Department of Communities and Justice (“DCJ”) in relation to the child, his siblings and paternal cousin.
As is plain, Order 27 does not require the DCJ to do anything in relation to this family. Rather, the primary judge considered it appropriate, that the orders and reasons be provided to the DCJ.
When regard is had to the findings made by the primary judge and the subsequent evaluation of risk, it is clear that the primary judge was concerned for the safety of not only the child the subject of the proceedings, but additionally the safety of the child’s older maternal siblings and the father’s cousin who live in the mother’s and the father’s households respectively.
The referral of the reasons and orders, in light of all of the matters discussed in the reasons, was in our view an unsurprising outcome particularly given the primary judge’s view that if he had been presented with a different option, he would have taken it.
Whilst no submissions were put to us in this appeal that the Court did not have the power to refer any aspect of the proceedings to the DCJ, we express the preliminary view that the power to refer the reasons and the orders to the DCJ, the NSW agency charged with ensuring the protection of children, is no different to the Court’s ability and power to refer material from any proceedings before it to the appropriate government or regulatory agency; for example, the referral of material to the Australian Taxation Office (per discussion in Malpass & Mayson (2000) FLC 93-061 at [20]–[31]) or the referral of material to a legal professional regulatory body (see for example Epping & Merl [2015] FamCAFC 81 at [33]–[36]).
Ground 4 also fails.
DISPOSITION
In circumstances where we have found no merit in any of the grounds of appeal, it follows that the appeal shall be dismissed.
COSTS
No orders for costs were sought in the appeal, accordingly, no such orders shall be made.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Riethmuller, Kari & Christie. Associate:
Dated: 5 February 2025
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