Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Fowler & Northwood [2022] FedCFamC1A 173
Appeal from: Northwood & Fowler [2022] FedCFamC2F 841 Appeal number: NAA 157 of 2022 File number: NCC 1911 of 2021 Judgment of: AUSTIN J Date of judgment: 24 October 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Unacceptable risk – Where the father appeals from interim parenting orders providing for the child to only spend time with him under professional supervision – Consideration of single expert report at interlocutory hearing – Assertions of denial of natural justice – Where a judge is not required to expose their thought processes or inclinations for further comment – Asserted errors of principle – Principle in Rice and Asplund (1979) FLC 90-725 – Where both parties conducted the proceedings on the basis that circumstances had materially changed – Admissibility of single expert report – Where no objection was taken to the report and it was exhibited in evidence – Reliance upon contested evidence – Where the primary judge was circumspect about relying upon untested evidence – Inadequacy of reasons – Where the reasons for judgment sufficiently expose how and why the orders were made – Whether result is “plainly wrong” – Where it could not be reasonably contended there was an incongruence between the evidence and the result – No error identified – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CG, 69ZL, 117 Cases cited: Albert & Plowman [2020] FamCAFC 23
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Cimorelli & Wenlack [2020] FamCAFC 58
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Reid v Lynch (2010) FLC 93-448; [2010] FamCAFC 184
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Schorel & Schorel (1990) FLC 92-144; [1990] FamCA 58
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 226 CLR 152; [2006] HCA 63
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 58 Date of hearing: 18 October 2022 Place: Newcastle Counsel for the Appellant: Mr Rugendyke Solicitor for the Appellant: Stevens Family Law Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Merridy Elphick Lawyers ORDERS
NAA 157 of 2022
NCC 1911 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FOWLER
Appellant
AND: MS NORTHWOOD
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
24 October 2022
THE…
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- AGLC
- Fowler & Northwood [2022] FedCFamC1A 173
- Case
- [2022] FedCFamC1A 173
- Decision Date
CaseChat Overview and Summary
Fowler & Northwood involved a dispute between the parties regarding the care of their children. The initial orders were made by the Federal Circuit Court on 26 June 2020, which granted the parties equal shared parental responsibility, with the children residing with the mother and spending substantial time with the father. The mother sought to revise these orders in June 2021, proposing that the children only spend supervised time with the father until a Family Report was prepared. The father opposed the application but also sought revisions to the original orders, aiming for increased involvement in the children's lives. The Senior Judicial Registrar confirmed the operation of the June 2020 orders but mandated professional supervision for the children's exchange between the parties. A report from a single expert psychologist was obtained and indicated several issues, including unresolved conflict between the parties, the children's anxiety, and the father's risk of harm to the mother and children due to his exposure to family violence.
The legal issues in Fowler & Northwood primarily concerned the appropriate terms for the children's care and contact with the father, particularly in light of the father's alleged family violence and coercive behaviour. The court had to determine whether the father's conduct warranted restricting or supervising the children's time with him. Additionally, the court needed to assess the evidence and expert opinion to decide on the children's best interests, balancing the need for their safety against their relationship with the father. The mother argued for stricter supervision due to safety concerns, while the father sought more unsupervised time, citing the need for the children to maintain a relationship with him.
The primary judge found that the father had indeed perpetrated family violence, as evidenced by his admissions and the expert opinion. The judge accepted the single expert's view that the father posed a risk of harm due to his coercive and controlling behaviour. Consequently, the primary judge ruled that professional supervision of the children while they spent time with the father was necessary to protect them. The court emphasised the paramount importance of the children's safety and well-being, and the findings supported the mother's application for supervised visits. The primary judge's decision was grounded in the evidence presented and the expert's report, which highlighted the ongoing conflict and the father's risk of harm.
The legal issues in Fowler & Northwood primarily concerned the appropriate terms for the children's care and contact with the father, particularly in light of the father's alleged family violence and coercive behaviour. The court had to determine whether the father's conduct warranted restricting or supervising the children's time with him. Additionally, the court needed to assess the evidence and expert opinion to decide on the children's best interests, balancing the need for their safety against their relationship with the father. The mother argued for stricter supervision due to safety concerns, while the father sought more unsupervised time, citing the need for the children to maintain a relationship with him.
The primary judge found that the father had indeed perpetrated family violence, as evidenced by his admissions and the expert opinion. The judge accepted the single expert's view that the father posed a risk of harm due to his coercive and controlling behaviour. Consequently, the primary judge ruled that professional supervision of the children while they spent time with the father was necessary to protect them. The court emphasised the paramount importance of the children's safety and well-being, and the findings supported the mother's application for supervised visits. The primary judge's decision was grounded in the evidence presented and the expert's report, which highlighted the ongoing conflict and the father's risk of harm.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the appeal is dismissed.Background Orders between the parties in respect of their children were first made under Pt VII of the Act on 26 June 2020 by a judge of the Federal Circuit Court of Australia (as the Court was then known). With the parties’ consent, it was ordered that they would have equal shared parental responsibility for the children, the children would live with the mother, and they would spend substantial time with the father. Fresh proceedings were commenced by the mother about 12 months later in June 2021, seeking revision of the orders. Her interlocutory proposal was that the children only spend supervised time with the father, at least until a Family Report had been prepared. The father opposed the mother’s application, but he too sought revision of the orders made in June 2020 by the expansion of his involvement in the children’s lives. The Senior Judicial Registrar entertained the parties’ interim dispute on 1 September 2021 and confirmed the operation of the June 2020 orders, save for the variation of the changeover arrangements so as to require professional supervision of the children’s exchange between the parties. Procedural orders were made in October 2021 for the procurement of a report from a single expert psychologist (“the single expert”), whose report was furnished to the Court and released to the parties in February 2022. The single expert reported upon several salient features of the litigation, including these: the June 2020 orders had not quelled the parties’ conflict; the mother commenced fresh proceedings following an unpleasant incident between the parties in June 2021; the children had been referred for assessment and treatment for their anxiety; the children appeared somewhat reluctant to stay in the father’s company when under observation; and the father posed a material risk of harm to the mother and children by his subjection or exposure of them to family violence. The single expert did not support the father’s proposal for any expansion of the time the children spend with him and instead urged the Court to consider the need for their supervision when with him. In March 2022, admittedly motivated by the contents of the single expert’s report, the mother ceased to comply with the operative orders and refused to allow the children to spend time with the father unless professionally supervised, to which demand the father reluctantly but willingly temporarily acceded. Contemporaneously, on 23 March 2022, the mother filed an interim application seeking to vary the orders by requiring professional supervision of the children while spending time with the father. He opposed her application. The interim dispute was heard by the primary judge on 18 May 2022, with judgment then delivered on 28 June 2022. Her Honour made several findings which were central to the outcome. First, it was found, partially on the strength of the father’s admissions, he had perpetrated family violence. The single expert opined that he posed a risk of harm to the mother and the children on account of his propensity for coercive and controlling behaviour, which opinion evidence the primary judge accepted (at [55]–[56]).
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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