Hahn & McGowan
[2024] FedCFamC1A 215
•15 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hahn & McGowan [2024] FedCFamC1A 215
Appeal from: McGowan & Hahn [2024] FedCFamC1F 418 Appeal number: NAA 186 of 2024 File number: PAC 2445 of 2018 Judgment of: ALDRIDGE, HARTNETT & RIETHMULLER JJ Date of judgment: 15 November 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Change of residence – Where many of the grounds of appeal allege a failure to consider or properly consider relevant matters – Where the primary judge squarely addressed the matters identified – Where the appellant attempts to reagitate issues on appeal – Adequacy of reasons – Where minor mistakes of fact did not affect the primary judge’s conclusions – No grounds of appeal established – Appeal dismissed – Appellant to pay the respondent’s costs. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CG
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter and De Winter (1979) FLC 90-605
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 113 Date of hearing: 2 October 2024 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Finch (direct brief) Counsel for the Independent Children's Lawyer: Mr Lawrence Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NAA 186 of 2024
PAC 2445 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HAHN
Appellant
AND: MR MCGOWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, HARTNETT & RIETHMULLER JJ
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 18 September 2024 is dismissed.
2.Appeal NAA 186 of 2024 is dismissed.
3.The appellant pay the respondent’s costs fixed at $16,445.
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 Hahn & McGowan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARTNETT & RIETHMULLER JJ:
INTRODUCTION
This is an appeal from a parenting decision where the primary judge ordered a change of residence for a seven-year-old child, suspending the appellant’s time with the child for two months and thereafter providing for supervised time with the child for three hours per fortnight until the child is twelve.
The appellant and respondent separated in the second half of 2017, shortly after the child’s birth. The proceedings began in 2018 when the child was approximately one year old. In December 2018, when the child was around 18 months old, the appellant began to allege that the respondent had engaged in sexual impropriety with the child. She said that the child disclosed to her that the respondent touched her in her genital area and started to exhibit concerning behaviours indicative of sexual abuse (at [67]). As a result, the respondent’s time with the child was supervised from March 2019, when the child was about two years old, until the final orders were made in 2024.
BACKGROUND
The appellant’s case alleged three types of risk to the child: drug use, family violence, and sexual abuse, although the central issue at the trial was the appellant’s claim that there was an unacceptable risk to the child as a result of the respondent’s alleged sexual impropriety toward the child. This claim was rejected by the primary judge as were the claims as to the other risks. Two consequential issues then required consideration: whether the appellant was capable of permitting the child to have a relationship with the respondent; and, if not, whether it was in the child’s best interests to live with the respondent rather than the appellant.
Given the wide-ranging nature of the appellant’s submissions it is helpful to note the key findings made by the primary judge.
At the final hearing, many of the appellant’s answers to questions were non-responsive (at [10]). At times she “disavowed statements under her own hand” and alleged that documents and records had been altered or were not her documents, and notes of professionals were “[n]ot my vernacular” (at [11]–[21]). The primary judge found it difficult “to determine whether she was dissembling or whether she genuinely believed that documents had been altered”, preferring the documentary evidence over that of the appellant (at [22]). The primary judge found the respondent’s evidence was given in a manner that was “unremarkable” (at [23]).
The respondent was the subject of random drug and alcohol testing in his employment. He had undertaken three urinalysis tests and a hair follicle test, none of which had detected any illicit substances ([33]–[34]).
The primary judge discussed the family violence claims at length. The primary judge accepted allegations from 2017 that the respondent broke a glass cake dome by throwing a naan bread into it and had threatened to destroy the appellant’s computer; although, this flowed from the respondent not addressing the allegations in his affidavit and the event not being the subject of any cross-examination during the trial. Other incidents were telling, such as:
(a)When the respondent attended for contact in August 2018, the appellant took his phone from him and began looking through it. The police attended and recorded that the appellant “seemed to have some form of mental health or anger issues by the way she was yelling and screaming at Police” (at [45]).
(b)In October 2018, after the child was provided to the respondent for contact, he entered a supermarket. Upon leaving the supermarket sometime later, the appellant had remained in the car park. The respondent took a recording of the interactions on his phone, where he is heard asking the appellant to leave him alone. The appellant then snatched his phone (which had his bank and ID cards with it). The appellant had said in her affidavit that this was to see what he had filmed, but at trial she said it was to search the phone for details of the respondent’s alleged drug dealer (at [46]–[57]).
(c)The appellant’s claim that the respondent may be intending to seek “spousal revenge”. She later resiled from this claim on the basis that he now has a new family and alleged that he is under “police surveillance” (at [65]).
The primary judge concluded that each party had engaged in conduct that could have induced fear but that neither had engaged in coercive or controlling behaviours (within the meaning of s 4AB of the Family Law Act 1975 (Cth)) (at [66]). On the evidence before the Court, her Honour concluded that, provided the parties did not have to undertake face to face changeovers, the child was not at risk as a result of family violence ([66]).
Significantly, there was no direct evidence of any inappropriate conduct by the respondent. None of the behaviours the appellant alleged the child carried out were observed by supervisors ([68]–[70]). Small inconsistencies in the appellant’s reports and conduct in 2018 were noted. For example, in December 2018 she declined a doctor’s offer to physically examine the child, and her claims that the child had exhibited behaviours in front of Dr H and that Dr H asked the child direct questions were not contained in the doctor’s notes. The appellant told police that Dr H had advised that sexual abuse had occurred and a urinary tract infection was detected. However, it was three days later that a urine sample was taken for testing and the appellant did not follow up to obtain the results (at [121]). Regardless, she was informed the results were negative in January 2019, yet the appellant persisted with the allegation to the Court (on 19 February 2019) that the child had been diagnosed with a urinary tract infection.
The primary judge noted that whilst the appellant claimed that the child had made “disclosures”, the child was not of an age where she could make disclosures; rather, the appellant was interpreting the child’s conduct (at [138]).
Despite the allegations of sexual impropriety, in March 2019 the appellant sent the child to supervised contact with the respondent in a dress and sandals, but without any underwear. The supervisor told the appellant that the child needed to wear underwear for visits. The appellant responded that the child was toilet trained and the respondent “would have ample nappies” (at [139]). In answers during cross-examination, it appeared that the appellant took this course in order to have the supervisor determine whether it caused the respondent to become aroused ([140]–[141]).
The sexual impropriety claims were rejected, and the primary judge was not persuaded that the child was at risk in the respondent’s care ([162]).
The primary judge also recounted many examples of the appellant’s challenging behaviours when interacting with others, for example:
(a)In September 2019, after reviewing a video of the appellant provided to police, DCJ noted that the appellant “appears to have a number of mental health issues” and that she “appears to be encouraging the young person to act out sexually in an attempt to incriminate the child’s father” (at [149]–[150]).
(b)Describing the agency workers in derogatory terms such as “[First Name] ‘misery guts’ [Last Name]” and “[First Name] ‘lardass’ [Last Name]”, and referring to “the FACS bovine culture” (at [183]).
(c)Engaging in disputes with seven different supervision agencies that had assisted the family, resulting in the termination of the services of the agencies (at [194]).
(d)Engaging in disputes with various Independent Children’s Lawyers, labelling one as “inflammatory”, “unprofessional”, and “dishonest” (at [247]).
The appellant’s attitude toward the respondent and his family was problematic, for example:
(a)Describing the respondent variously as “Mr Drug Addict”, “Bludger”, “Asshole”, “Lying deceitful cheating crackhead”, “Narcissist”, “Monster [McGowan]”, and “Pedophile” (at [182]) (the appellant habitually misspelled the word paedophile).
(b)Repeatedly referred to the respondent during the hearing as a “sex addict” (at [152]).
(c)Describing the respondent’s partner, Ms [surname ending with ‘-pel’], as “A-dawg ‘the big dipper!’” and “Miss Nipple” (at [183]–[184]).
(d)Denying that the child has a half-sister in the respondent’s household, saying “until I see a birth certificate, I’m not clear if there was a baby born” (at [261]).
(e)Sending the paternal grandfather a text message commencing with “Dear McPedophiles” (at [171]).
(f)Asking a contact supervisor to check the respondent’s fridge to see if the respondent kept “excrement in his fridge” alleging that he consumes “faeces” (at [179]), an allegation she maintained in cross-examination (at [180]).
(g)Providing the respondent with a false password for the parent teacher Zoom meeting of “[Mr AA]isahunkymonkey”, Mr AA being an officer of the NSW police force (at [188]–[189]).
Whilst the respondent’s behaviours were less concerning, the primary judge was also critical of some of the conduct of the respondent. For example, unilaterally retaining the child for five days in September 2021 (at [280]–[286]), and on one occasion telling the maternal grandmother “[s]top fucking up my daughter, you bitch” in the child’s presence (at [63]).
The primary judge considered the child’s relationship with both parents, noting close relationships with both the appellant and respondent (at [254]–[260]) and the child’s developing relationship with her half-sister in the respondent’s household (at [259]–[260]). The primary judge noted that changing the child’s primary residence was a significant step but considered it necessary to protect the child’s wellbeing and development (at [262]–[263], [289]) as her Honour formed the view that the appellant would be unable to shield the child from her extreme views about the respondent.
The primary judge also carefully considered the arrangements for time between the appellant and the child, suspending time for two months and only ordering supervised time until the child attained 12 years. Her Honour noted the likely grief and loss the child would experience from a change of residence. In reaching a conclusion as to the appropriate orders, her Honour considered:
(a)The need to protect the child from psychological harm (at [296]) that may occur if the child was not shielded from the appellant’s negative views about the respondent (at [297]), discussions about returning to the appellant’s care (at [297]), negative discussions or inquiries about the respondent or his family (at [297]), the appellant’s narrative that the child was sexually abused by the respondent (at [299]), and the appellant’s repeated adversarial interactions with services and professionals which may lead to the child’s exposure to a chaotic and hostile home life (at [250]).
(b)The appellant’s persistent belief that the respondent had sexually abused the child, despite the Court’s findings, which impacts her functioning and interactions (at [266]).
(c)Concerns that the appellant’s “negative attitude towards the [respondent] is so extreme and all prevailing that she will be unable to shield [the child] from it if time is unsupervised” (at [169]).
(d)Concerns that unsupervised time with the appellant could function to undermine the child’s stability in the care of [the respondent] (at [293]).
(e)Concerns about the potential non-compliance of the appellant (at [291]) and the potential difficulties of effecting supervision, given the appellant’s past dealings with supervising agencies (at [291]).
The primary judge concluded that supervision was necessary to ensure that the child is protected from psychological harm, while still maintaining a relationship with the appellant (at [296]–[300]).
Following lengthy discussion of the options for parenting orders, including the risks and benefits of each option, the primary judge concluded that the orders were in the child’s best interests.
APPLICATION TO LEAD FURTHER EVIDENCE ON THE APPEAL
On 18 September 2024 the appellant filed an Application in an Appeal, seeking leave to rely upon further evidence on the appeal. The evidence sought to be relied upon is set out in her affidavit filed on the same date.
The Court has a discretion to admit “further evidence” on appeal (Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35). In CDJ v VAJ (1998) 197 CLR 172, the High Court considered the statutory discretion noting that “[i]ts principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous” (at [109]). Other relevant considerations include whether the evidence could have been obtained with reasonable diligence, the weight of the further evidence, and whether it would have been likely to affect the outcome of the trial. Where the further evidence is said to require a new trial, ordinarily, “justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial” (CDJ at [111]). Importantly, in the context of parenting judgments, McHugh, Gummow, and Callinan JJ said:
117The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
The evidence set out in the appellant’s affidavit is broad-ranging. Much of the affidavit (paragraphs 6–49 and 68–73) details the appellant’s version of events that have taken place at supervised visits and related to the interaction of the parties, since the orders were made by the primary judge. None of the matters alleged appear to be beyond the general nature of the difficulties that the primary judge contemplated in the judgment. The allegations that the respondent, by exercise of parental controls within the ambit of the orders, engages in dominating and controlling conduct, do not demonstrate coercive or controlling behaviours.
Paragraphs 50–55 and 73 seek to rely upon an application for an administrative variation of the child support assessment by the respondent. It is difficult to see that any weight could be placed upon the child support departure application. Significantly, the child support departure application was made, with a copy provided to the appellant, in April 2024, well before the conclusion of the trial in June 2024.
Paragraphs 56–64 seek to undermine the primary judge’s finding (at [289]) that “[o]n balance this arrangement … may offer marginally more finality and stability” by relying upon the appellant’s appeal, stay application and the respondent’s costs application following the final orders. The appellant also claims that further proceedings from “10 family members” are likely. The appeal, stay application, and costs application are not unexpected further proceedings. The various unnamed family members had not chosen to join the existing proceedings. The evidence, even at its highest, does not demonstrate error on the part of the primary judge with respect to the orders offering marginally more finality.
At paragraphs 65–67 the appellant seeks to lead evidence of her compliance with the primary judge’s orders to challenge the primary judge’s finding at [252]. At [252], her Honour sets out a list of six reasons why orders for the child to live with the appellant and have unsupervised time with the respondent were unlikely to function. Evidence of compliance with orders for the appellant to have supervised time does not show error on the part of the primary judge in this respect.
Paragraphs 74–100 concern evidence that appears to have been available prior to the trial (concerning many of the issues canvassed at the trial), which could have been the subject of evidence before the primary judge. There is no explanation for why this material was not placed in evidence at the trial.
We are not persuaded that it is appropriate to exercise the discretion to receive further evidence as set out in the appellant’s affidavit on the appeal.
GROUNDS OF APPEAL
The appellant filed a Notice of Appeal on 22 July 2024. There are ten grounds of appeal. The orders sought by the appellant are that the child be returned to her pending determination of the appeal, that the appellant have sole parental responsibility, that the child live with the appellant, that the child be re-enrolled in her former school, that the Court determine the child’s time arrangements with the respondent, and that the child’s name be hyphenated to “[Hahn-McGowan]”.
Ground 1
1.That the Primary Judge failed to properly consider the impact on the child of the significant change in her living circumstances that would be necessitated by the orders made.
This ground of appeal is vaguely drafted, apparently alleging a failure on the part of the primary judge to have regard to relevant considerations and also alleging that the primary judge failed to give appropriate weight to the impact of a significant change in the child’s circumstances.
To the extent that this ground alleges that the primary judge failed to take into account relevant considerations, the appellant’s Summary of Argument alleges that the primary judge:
(a)failed to ensure that the order did not expose the child to an unacceptable risk of family violence (as required by s 60CG of the Family Law Act);
(b)failed to consider the impact upon the child of orders for a change in primary carer; and
(c)failed to take into account that she had not failed to properly care for the child in the past.
The primary judge squarely addressed the family violence issues at [36]–[66], concluding:
66Having reviewed the parties’ evidence and submissions about family violence, I conclude that some of my findings set out above support a conclusion that isolated examples of the [respondent’s] conduct could have induced fear in the [appellant] and vice versa. I do not find that the evidence supports a conclusion that their conduct has been coercive and/or controlling. What is less clear is whether those individual incidents pose a future risk for [the child] in the care of one or other of her parents. The conclusion which I have reached upon review of all the material is that, provided the parents are not required to effect face to face changeover, the incidents which occurred do not suggest that [the child] would be at future risk as a consequence of family violence having regard to the orders I propose to make.
The appellant’s allegations of sexual impropriety by the respondent, which was the central issue in the proceedings, were discussed and the evidence carefully analysed at [67]–[162] The primary judge concluded:
162There is no evidence to support a finding, on the balance of probabilities, that the [respondent] acted in a manner consistent with sexual impropriety in his dealings with [the child] in the period up to the imposition of supervised time, or at all. The authorities recognise that there will be cases in which the Court is unable to make a finding, to the requisite standard, that conduct has occurred but will nonetheless be persuaded by all the available evidence that there is an unacceptable risk of future harm. There are a number of factors in this case which persuade me that there is not an unacceptable risk of future harm for [the child] in the unsupervised care of [the respondent]; these include:
(a) My conclusion about the past events; and
(b)The evidence of the [respondent’s] current partner about the [respondent] and their new child, [the child’s] half sister.
There is no merit in the first limb of the appellant’s argument in support of this ground of appeal.
The likely impact upon the child of a change in care arrangements was addressed at length in the reasons given by the primary judge. For example, the primary judge accepted Dr Q’s (the single expert) concerns about the impact on the child of a change of residence (at [262] and [297]) and considered the impact on the child of changing schools (at [262] and [263]). The primary judge noted the evidence of Dr Q that the child would find the experience of being away from the appellant difficult (at [297]), stating “I am conscious that this will be experienced by [the child] as a loss and I expect she will experience grief” (at [294]). The primary judge then turned to consider the possible protections to enhance the child’s stability to assist with a change of living arrangements, including supervision of the appellant’s time being protective and supportive (at [296], [297] and [299]), the appropriateness for a period of block out time (at [291]–[293]), and therapeutic support for the child (at [321]). This limb of the appellant’s argument is also without merit.
The appellant makes extensive reference to the evidence and transcripts in support of her claims as to the quality of care she had provided to the child prior to the orders made by the primary judge. However, at the trial this was not in dispute. The primary judge accepted that the appellant and child have a close relationship (at [254]) and that the child has a close relationship with the maternal grandmother and aunt (at [256]). The third limb of her argument under this ground must also be rejected.
As Ground 1 sets out, the appellant also argues that the primary judge failed to “properly consider” the various matters set out above. The difficulty of challenging a trial judge’s attribution of weight on appeal is well known. As Latham CJ said in Lovell v Lovell (1950) 81 CLR 513 at 519 (cited with approval by Gibbs CJ in Mallett v Mallett (1984) 156 CLR 605 at 614):
In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion … unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J explained, at 519–520 that:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
As the weight or importance given to evidence is a matter quintessentially for the primary judge, Kirby J stated that an appellant would have to show that the primary judge was “plainly wrong” (see CDJ at 230–231).
Importantly, as was identified by the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66:
120… when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious.
121The alternative approach would permit a party to run one case before the primary judge and different cases on however many levels of appeal were open. Where it is said on appeal that a primary judge was in error in not taking into account a particular consideration “expressly”, even though it was not explicitly submitted to the primary judge that it should be, a benevolent construction of the primary judge’s reasons will often reveal, by a process of inference and implication, that the relevant consideration was borne in mind, even though it was not stated in as clear-cut a way as an appellate court, dealing with a hostile submission by one party not put nearly as distinctly, or at all, to the primary judge, might prefer.
The primary judge has discussed the relevant matters in considerable detail, carefully weighing them against the other considerations in the case. The appellant is not able to show that the primary judge failed to “properly consider” these matters.
Ground 2
2.The Primary Judge failed to take into account material evidence in relation to the [respondent] being an unacceptable risk of harm to the child, particularly having found that the [respondent] had been a perpetrator of family violence including where the [appellant] contended that he had:
(a)Made allegations of the maternal uncle sexually abusing [the child];
(b)Made allegations about the mental health of the [appellant] and maternal family and attempting to have the child removed from the [appellant’s] care to FACS/DCJ and police;
(c)Exposed the child to false beliefs about the [appellant] and maternal family;
(d) Tracked the [appellant], particularly in September 2019;
(e)Recorded the [appellant] without her knowledge or consent for evidentiary purposes; and
It is not necessary that a trial judge “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]. See also Fox v Percy (2003) 214 CLR 118 at [41]). It is not “necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant … Nor is a judge required to make an explicit finding on each disputed piece of evidence” (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA).
The primary judge correctly identified the definition of family violence in s 4AB of the Family Law Act (at [39]) and proceeded to apply the definition when making specific findings as to family violence. The primary judge considered the family violence of each party and the likely risks to the child before making the finding in [66] quoted above at [31] of these reasons.
The allegations in particular (a) refer to the respondent asking the appellant why, when making complaints to police that the child had referred to “Dada”, she had not disclosed that the child also referred to her brother as “Dada” at that time (Transcript 5 March 2024, p.80 lines 9–13).
The appellant does not point to any specific part of the extensive interactions the parties had with police and child protection authorities in support of particular (b). It was not necessary for the primary judge to address every allegation of poor behaviour of the parties in this long running dispute that may have fallen within the broad categories in (b) and (c).
The claim in particular (d) was denied by the respondent where other explanations for the respondent’s knowledge were available (as identified by the primary judge at Transcript 5 March 2024, p.75 lines 24–28).
With regards to particular (e), both parties recorded calls. No applications were made to exclude the evidence.
None of the matters referred to by the appellant in this lengthy and complex case were of such significance that it could be concluded that the primary judge fell into error because they are not discussed in the reasons.
This ground of appeal is without merit.
Ground 3
3.The Primary Judge failed to appropriately consider the [respondent’s] conduct in perpetrating family violence when assessing the competing proposals of the parties including the impact on the child living primarily in the household of a perpetrator.
Ground 4
4.The Primary Judge erred in neglecting and/or refusing to make findings of fact in relation to the domestic violence, including coercive and/or controlling behaviour as contended for by the [appellant] when the evidence supported the making of such findings.
The primary judge specifically addressed the claims of family violence in her reasons. Grounds 3 and 4 must fail for the reasons given above at [31].
The additional argument raised under these grounds was an allegation that the primary judge made an error of fact at [149] in referring to the appellant and the respondent recording a video call, when it was only the respondent who had made the recording. It was conceded on the appeal that the call was recorded by the respondent, however it was the appellant who provided the recording to the police. This minor factual error could not have made any difference to the outcome of the proceedings. This argument is without merit.
Ground 5
5.The Primary Judge neglected to properly consider the evidence as to the [respondent’s] lack of emotional insight in retaining the child for a period of six days in circumstances where the orders in place at that time required the time, he spent with the child to be supervised.
The primary judge had regard to the respondent having retained the child in 2021 (at [280]–[286]) noting that it demonstrated that he lacked insight. The appellant also points to the police having attended when she sought to recover the child. This was carefully addressed by the primary judge, who found that:
285In the afternoon the [appellant] spoke to [the child]. The parties agree the [appellant] asked [the child] whether she wanted to come home. They disagree about the answer [the child] gave. The [appellant] than [sic] attended at the [respondent’s] home about 6.00 pm in the company of her mother and sister. The [respondent] arrived home to see the [appellant] approach. The [respondent] says the [appellant] banged on the windows of the car (which contained [the child]) and tried to open the car. Both the [respondent] and [his partner] were cross-examined about these events and confirmed the account provided to police at the time. Police were called by [the respondent’s partner]. Police arrested the [appellant], grandmother and aunt for intimidation but ultimately determined to release them without charge. Concerned the [appellant’s] behaviour was escalating, police applied for an ADVO.
As the primary judge pointed out in argument, there was no evidence of the child being traumatised. The primary judge ultimately concluded:
295The [appellant] submitted that [the child] had been traumatised when the [respondent] retained her between 10 and 15 September 2021. The [appellant] says that [the child] asked her, “why did you leave me there for 5 weeks?” [The child] was four years old. It is reasonable to imagine that she would have found four days away from [the appellant] challenging given the history of care arrangements and the lack of any precedent. That is not the same as finding that she suffered or experienced trauma. [The child’s] maternal aunt gave evidence that [the child] had expressed fear about being kept away from [the appellant] more than six months later and made reference to the police. I accept that the level of conflict and police involvement is likely to have been a cause of concern for [the child]. Similarly, being separated from her primary caregiver for five days without warning would have been difficult for her to comprehend but the evidence falls short of establishing that she experienced trauma. The police saw [the child] at the [respondent’s] home and described her as “happy and content”.
There is no merit in this ground.
Ground 6
6.The Primary Judge failed to engage with the evidence that the [respondent] had an almost entirely negative view of the [appellant] and the maternal family and
a.How that might impact upon his ability to support a relationship between the [appellant] and the child;
b. How that might impact the child’s sense of self; and
c.In leaving any time that might take place between the child and the [appellant] after she turned 12 to the discretion of the [respondent].
The primary judge did not make a finding that the respondent had an almost entirely negative view of the appellant, and the proposition was not put to the respondent in cross-examination. In final submissions the argument was not put by the appellant’s counsel. However, it is clear that the respondent’s attitudes were considered by the primary judge, making a finding that the respondent was not without criticism, as discussed above.
The appellant, however, gave evidence that she had “a negative view of the [respondent]” (Transcript 24 May 2024, p.314 line 29), which was, in the expert’s opinion, “unshakeable” (Transcript 6 June 2024, p.470 line 11). The primary judge found:
191.Having considered the evidence as a whole, I accept that the [appellant’s] attitude towards the [respondent] (and his family) has been continuously and publicly negative to the extent that it has obscured her capacity to understand and demonstrate to [the child] the importance of that relationship to [the child]. An example from a supervised contact report dated 17 September 2022 is indicative:
At the end of the visit, [the child] hugged [the respondent], she gave her grandparents and [the respondent’s partner] a high 5 and said goodbye. It appeared she did not want to leave [the respondent’s] house…
[The child] was handed back to [the appellant] at the corner of [the respondent’s] Street. [The child] became broken hearted and started sobbing because [the appellant] told [the child] the toys [the respondent] and grandparents had given her were going in the bin. [The child] cried hysterically. She was put in the car, and they left with [the child], while [the child] was crying.
This ground is also without merit.
Ground 7
7.The Court erred in finding that the [respondent] would have the requisite insight to make proper decisions as to the time that the child should spend with the [appellant] after she turned 12 or at all.
The appellant challenges the primary judge’s finding that:
300Originally the [respondent] had sought orders which provided for the [appellant] to transition back to unsupervised time. This is consistent with his position that he is supportive of [the child’s] relationship with the [appellant]. Following Dr Q’s evidence, the [respondent] acknowledged that it may not be possible to know whether or not there had been a change in the [appellant’s] beliefs and conduct so as to make unsupervised time appropriate. In order to provide an opportunity for the time to transition, the time remains supervised but could become unsupervised at the [respondent’s] election. I am satisfied that the [respondent] has the requisite insight and sufficient capacity to promote [the child’s] relationship with the [appellant] by way of unsupervised time if he deemed it safe to do so for [the child].
Her Honour had evidence before her that the respondent had completed a number of relevant courses and the evidence of the expert that:
117.[The respondent] still has limited opportunity to participate as an unencumbered parent to meet [the child’s] needs, notwithstanding his desire to do so. The reports from the contact service supervisors do suggest that [the respondent] continues to respond to [the child] with attunement and sensitivity and that he is appropriately responsive to her needs. While he is untested in his capacity to meet [the child’s] day to day needs, as previously mentioned, [the respondent] and [his partner] have completed courses aimed at providing them with resources to meet [the child’s] needs should she be placed in their care.
The findings of the primary judge were an acceptance of the submissions on behalf of the respondent that (Transcript 7 June 2024, p.513 lines 23-29):
…the [respondent] certainly came into these proceedings wanting a relationship, wanting [the child] to have a full and unfettered relationship with both parents. Having heard the evidence, and having heard your Honour on what might be required to trigger the release of the strict provisions of those orders, I will be submitting that the [respondent] has the insight to come to the view at a point in time based upon what he will perceive as a maturing of the [appellant’s] approach to parenting, and make a decision to vary those orders, perhaps by written agreement, in the future.
It was open to her Honour to make the findings that she did at [300] on the evidence before her. There is no appealable error shown by this ground.
Ground 8
8.That the exercise of the Primary Judge’s discretion miscarried in that the decision that was arrived at was unreasonable or plainly unjust.
Particulars
(a) both parents had a negative attitude to the other;
(b) both parties were involved in intractable dispute;
(c) the [respondent] had never been the primary carer of the child;
(d)the orders made by the Primary Judge required the child to not only change her place of residence but her school;
(e)the child would be denied all access to her primary parent for two months and thereafter would have exceedingly limited supervised time;
(f)there was no finding made that the [respondent] would be able to protect the child from his wholly negative view of the [appellant];
(g)having regard to the totality of the evidence there was insufficient evidence to make a finding that the orders made by the Court were in the best interests of the child;
The appellant sets out many claims in the particulars that do not reflect the findings of the primary judge. For example, the orders provided for the appellant to have supervised fortnightly time after a two-month suspension of time to allow the child to settle in the respondent’s household. There were no findings that the respondent had a “wholly negative view of the [appellant]”.
This ground is an attempt by the appellant to re-argue the merits of the case by looking only to the arguments the appellant puts forward and ignoring the significant factors that led the primary judge to make orders for the child to live with the respondent. This ground is without merit.
Ground 9
9.The Primary Judge erred in making findings of fact that were either against the weight of the evidence or not supported by the evidence, including:
Particulars
(a)Her Honour erred at J[20] in failing to find that the [respondent] had amended the date of the message by determining that there was no evidence to support the conclusion the date of the message had been altered, when no other alternative was reasonably open;
(b)Her Honour erred in finding that the Notice of Risk was not false J[36];
(c)Her Honour erred in failing to have regard, or sufficient regard to the evidence of the maternal grandmother regarding the [respondent] tailgating J[42];
(d)Her Honour failed to have regard to the [appellant’s] evidence regarding the phone being smashed intentionally, and erred in finding that this was not an incident of family violence J[45]);
(e)Her Honour erred in determining at J[58] that “I cannot find that it was an ‘assault’” given the evidence of the [appellant], the medical records and the finding that the injuries sustained by the [appellant] were consistent with a struggle J[55];
(f)The Finding made at J[77] was not open on the evidence, when the entirety of the text message is read;
(g)Her Honour erred in failing to have regard to the [appellant’s] affidavit at [188] in making the finding at J[104];
(h)Her Honour erred at J[118] in failing to have regard to the medical record of [Dr H] and referred to by the [respondent] in his submissions;
(i)Her Honour erred in determining that the [appellant] changed her stance to fit in with evidence regarding the timeline of her concerns regarding possible sexual misconduct by the [respondent] (J[76], J[129);
(j)Her Honour erred in the finding at J[156] that the Maternal grandmother had asserted that [Dr Q] had observed the behaviour and that the diary had been provided to [Dr Q];
(k)The findings at J[169] that the [appellant] would not shield the child from the [appellant’s] negative attitude towards the [respondent] are against the weight of the evidence;
(l)Her Honour erred in finding at J[172] in failing to have regard to material evidence regarding the communication between the parties about the duck bath (MTB 702-705);
(m)Her Honour failed to have regard to evidence, or erred in the findings regarding the supervision services;
(n)Her Honour erred in the finding at J[249] that the [appellant] knew her home address, and therefore errs in the findings at J[249] and J[250];
(o)Her Honour erred in the finding at J[252] in failing to have regard to, or sufficient regard to the current circumstances of the child and the previous conduct of the [respondent];
(p)Her Honour erred in the finding at J[259] that the child had not suffered trauma when withheld by the [respondent];
(q)Her Honour erred in the finding at J[300] in finding that the [respondent] would be supportive of a relationship between the child and the [appellant] and failing to have regard to, or sufficient regard to, the conduct of the [respondent]; and
(r)Her Honour failed to have regard to, or sufficient regard to, the child identifying with both [the appellant] and [respondent] with the surname she currently uses.
Particular (a) refers to a message sent by the appellant addressed to the respondent’s mother as “Dear McPedophiles”. There was no dispute that the appellant had sent the message to the paternal grandmother on 20 February 2019. There was a mistake by the respondent as to the date of the message when accessing it from an old Nokia brand phone. This was set out in his solicitor’s letter in 2020 which included a photocopy of the phone screen displaying the incorrect date (annexed to the appellant’s affidavit as MH-9). The issue was the subject of cross-examination, and the phone was produced for inspection. The primary judge found:
20In support of the [appellant’s] belief that records had been altered, she pointed to the [respondent] having provided, in his evidence, a text message from the [appellant] to the paternal grandmother which bore the wrong date. The text message was sent on 20 February 2019 but read 30 November 2018. The [respondent] produced the analogue phone belonging to his mother which also showed the incorrect date. There is no evidence to support the conclusion that the [respondent] had altered the date of the message and it was common ground that it was sent on 20 February 2019.
The evidence did not support a finding that the respondent had deliberately falsified evidence. The findings of the primary judge were open on the evidence before her Honour.
Particular (b) challenges the primary judge’s finding in [36] that:
36Neither party suggested that the other party posed a future risk of physical abuse to [the child] (save in respect of alleged sexual abuse which is discussed separately). In a Notice of Risk filed 6 May 2020, the [respondent] said that [the child] was “at risk of further physical abuse”. In submissions filed on her behalf, counsel who appeared for the [appellant] submitted that the Notice of Risk was false and adversely impacts on the [respondent’s] credit. I do not accept that submission. In the Notice of Risk the [respondent] said that [the child] had informed him (when she was 34 months of age) that the [appellant] had smacked her hand causing injury. This allegation was not in the [respondent’s] trial affidavit and I am not being asked by him to make a finding about this incident or future risk of physical abuse by the [appellant]. I am satisfied that it is the [respondent’s] position some four years later that the [appellant] does not pose a physical risk to [the child].
The fact that the respondent did not pursue the claim set out in the Notice of Risk at trial does not, of itself, show that he made a false claim in the document. The claim occurred over six years before the trial and had clearly been overtaken by many other incidents. It is understandable that the respondent did not press the claim at the final hearing. The appellant refers to no other evidence that supports the proposition that the Notice of Risk was false when filed. The findings were open to the primary judge on the evidence.
Particular (c) challenges the finding of the primary judge that:
42The [appellant] also alleged that the [respondent] was tailgating her en route to a changeover. The [respondent] says they were both driving from the west of Sydney (the [respondent] from Suburb A, the [appellant] from Suburb B) to changeover in Suburb N. The [respondent] requested that they effect changeover sooner but that did not occur and both drove to Suburb N. The [respondent] denied tailgating. I am unable to make a finding that tailgating occurred on this occasion or at all.
The appellant argues that the evidence of the maternal grandmother should have been relied upon to support a finding that the respondent was tailgating the appellant in this incident, and thus the appellant alleges that a finding of family violence would follow. The respondent was cross-examined at length on the issue. As counsel for the appellant said in final addresses, “these are obviously questions of credit which are who do you prefer in these matters” (at Transcript 7 June 2024, p.532 lines 38–40). The primary judge expressed concerns about the maternal grandmother’s credibility at [156]–[157]. It was open to the primary judge to accept the respondent’s evidence on this issue.
Particular (d) challenges the findings at [45] of the judgment arguing that the events should have resulted in a finding that the respondent had committed family violence. It is necessary to include the preceding paragraph to understand the incident:
44 The [respondent] says that what occurred was:
55.[In] August 2018, as had been previously agreed with [the appellant], I arrived at her [Suburb N] residence at 9.00 am to pick [the child] up for the day. I was met by [the appellant], [the child] and [the appellant’s] mother who began filming me on her mobile phone, pushing it very close to my face and body. Whilst I was trying to put [the child] into my car, [the appellant] and her mother stood no more than a metre away, [the appellant] began calling out to [the child] and [the appellant’s] mother said ‘[the child] needs to go to playgroup at 9:30 am.’ I replied ‘no we agreed this was [the child’s] time with me·. [The appellant] then entered my car and took my phone and began scrolling through my messages whilst walking away. I approached [the appellant] and asked for my phone back before taking her phone from her hand and asking for mine back in return. I retrieved my phone and in the heat of the moment I tossed [the appellant’s] phone in a front yard in part to get some personal space. [The appellant’s] mother continued to film as [the appellant] ran at [the child] and I before snatching [the child] from my arms. I took [the appellant’s] mothers phone from her hand as she filmed close to my face and drove to [Suburb N] police station to return the phone and report the incident...
(As per the original)
45The police declined to pursue any charges arising out of the incident. When they attended, their notes record the [appellant] was screaming at the police and that the maternal grandmother tried to calm the [appellant]. The police recorded that the [appellant] “seemed to have some form of mental health or anger issues by the way she was yelling and screaming at Police.” I am unable to make a finding that the conduct of either party on this occasion, as unfortunate as it was, should be termed “family violence” according to the definition in the Act.
The definition of family violence is set out in s 4AB of the Family Law Act, relevantly, as:
… family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
The circumstances of this event were not such as led to a conclusion that the conduct of the respondent coerced or controlled the appellant or grandmother. The facts tell against a finding of fear by the appellant or her mother. There is no merit in this ground of appeal.
Particular (e) concerns findings with respect to an incident outside of a shopping centre in October 2018. The appellant had provided the child to the respondent who entered the shopping centre. For reasons that were not explained, the appellant remained waiting for the respondent and approached him and the child as he later exited the shopping centre carrying the child. A video of the incident demonstrates that the respondent was requesting the appellant to leave him alone. After some conversation the appellant took the respondent’s phone from his hand after which the video recording on the phone ceased. The primary judge summarises the respondent’s evidence:
54… the [respondent’s] account was that when he exited the supermarket the [appellant] followed him and [the child] to his car and “would not leave and stood in my personal space despite my repeated requests of ‘please leave us alone’”. He says she then “snatched” his phone as he was endeavouring to place [the child] in her car seat and ran away causing the [respondent] to have to follow her with [the child] if he wished to retrieve his phone and the bank and ID cards that were contained with the phone.
55The [appellant] indicated in her evidence that she was injured by the [respondent]. She did not seek medical assistance until much later that day. She presented to the triage at J Hospital about 10.30 pm and then 8.00 am the following day. The notes set out injuries which seem consistent with a struggle while the [respondent] sought to retrieve his phone.
The primary judge concluded:
57There was no evidence proffered by the [appellant] to explain her actions. The video footage was consistent with the [respondent’s] account. The [appellant’s] actions were provocative and lacked child focus. The [appellant’s] account during cross-examination about her motivation in taking the [respondent’s] mobile phone was materially different from her affidavit evidence. She claimed she had taken the [respondent’s] phone because she was “looking for a text from his drug dealer” and that a reason she may have been waiting outside the supermarket was to retrieve the phone number of the [respondent’s] drug dealer (Transcript 24 May 2024, p.281 lines 24–25 and p.283 lines 1–6). Her affidavit had read, “[the respondent] filmed me with his mobile. I took it from him to see what he had filmed.”
58This inconsistency in the evidence is concerning because it undermines the weight I can attach to evidence which the [appellant] gave on oath. I was left with the impression, as discussed elsewhere in these reasons, that the [appellant’s] answer was designed to make the [respondent] look bad. This was particularly the case since it was out of step with her affidavit evidence on oath and the impression created by the video evidence. I cannot, on the evidence, find that the [respondent’s] actions on that day were any more than an attempt to retrieve his phone which the [appellant] had taken from him. A physical altercation occurred precipitated by the [appellant] taking the [respondent’s] phone and continued by his attempts to retrieve it. I cannot find that it was an “assault” and note the police did not pursue this incident as an assault either. It is possible that the [appellant] sustained the injuries she later reported during the [respondent’s] attempt to retrieve his phone. I accept the submission of counsel for the [appellant] that it may have been wiser not to chase the [appellant].
The findings of fact were open to the primary judge on the evidence. On the findings made there is no basis for concluding that the respondent had perpetrated family violence. In circumstances such as occurred here, where the appellant accosted the respondent, it cannot be said that the respondent engaged in coercive or controlling behaviour nor caused the appellant fear in the sense described in s 4AB of the Act. This particular is without merit.
Particular (f) alleges that the finding at [77] was not open on the evidence when the entirety of the text message is read. The finding is:
77On 8 June 2018 the [appellant] sent a text message to the paternal grandparents. In part the message read, “If I find out you or your son ever interfere with my child, I will be reporting you to the police” The message is consistent with the other evidence which suggested the [appellant] had raised potential sexual abuse allegations much earlier than December 2018.
The full text message includes other attacks upon the respondent’s character and claims that the paternal grandparents were opposed to breastfeeding. Complaints about attitudes to breastfeeding are not issues for the police. The finding of the primary judge was open on the evidence.
Particular (g) was not included in the appellant’s Summary of Argument. It addresses the primary judge’s finding that:
104The [appellant’s] affidavit does not record that [the child] exhibited the sexualised behaviour on 21–27 December 2018. During that period, [the child] had unsupervised contact with the [respondent] on 25, 26 and 27 December 2018.
The appellant says that her Honour erred in failing to have regard to the appellant’s affidavit at paragraph 188. Neither of the paragraphs numbered 188 in the affidavits of the appellant address this issue. This particular has no basis in the material.
Particular (h) sets out that “Her Honour erred at J[118] in failing to have regard to the medical record of Dr H and referred to by the [respondent] in his submissions”. The paragraph sets out:
118The affidavit of the [appellant] and the maternal grandmother suggests, and the maternal grandmother maintained in cross-examination, Dr H engaged in direct questioning of [the child] to the effect “[w]here does Daddy touch you?” There is no record of this in Dr H’s notes or her subsequent reports.
The appellant does not challenge the findings but claims that Dr H was not a qualified expert. The finding was not the acceptance of an opinion from Dr H, rather a comparison of the evidence of the appellant and the doctor’s notes. The letter relied upon by the appellant (at pages 75–76 of the Independent Children’s Lawyer’s tender bundle) recounts many things the appellant told the doctor. The only reference to the doctor speaking to the child does not set out a leading question as alleged by the appellant. There is no merit in this particular.
Particular (i) concerns the primary judge’s findings as to when the appellant’s concerns that the respondent had abused the child first arose. Relevantly, her Honour found:
75Those pieces of evidence [discussed above] appear to support the conclusion that the [appellant] was concerned about conduct on the [respondent’s] part in February–April 2018. However, at the hearing the [appellant] went to extreme lengths to emphasise that she did not form that view until December 2018, even, as discussed above, suggesting that documents had been altered.
76It is my view, having listened to all the evidence, that the [appellant] recognised at some point that there was an inconsistency between her identification of issues in February–April 2018 and the continuation of the [respondent’s] unsupervised time such that she abandoned those earlier allegations.
…
129As already discussed, the notes [of Dr G] further record, “I suspect he’s been interfering with her since Feb 2018. Supervised visits b/c of drug use. In Feb thought CSA occurred. After visit at Easter with [the respondent] in the bath [the child] was putting fingers into her vagina and continued to do this for 3 days.”
In cross-examination, the appellant was taxed with the contents of a Notice of Risk that she had filed on 11 June 2019 (Transcript 6 March 2024, p.192) which accords with the primary judge’s findings. The transcript shows that the appellant alleged that the document (which had been filed with the Court and which bore her signature) was not her document, even saying that it was not in her “vernacular” (Transcript 6 March 2024, p.192 line 38). The significance of the document was apparent to the appellant when being cross-examined as she said to counsel for the respondent “if this record was correct, wouldn’t you have raised this earlier? This is a huge inconsistency in the case for your client.” (Transcript 6 March 2024, p.192 lines 15–17). In her Summary of Argument, the appellant now argues that initially she was assuaged by the respondent’s denials: that was not her evidence before the primary judge.
The finding of the primary judge was open on the evidence.
Particular (j) alleges that her Honour erred in the finding at [156] that the maternal grandmother had asserted that Dr Q had observed the child’s alleged sexualised behaviour, and that the diary had been provided to Dr Q. The finding accords with the evidence of Dr Q.
The appellant, when cross-examined about the diary, alleged that the diary had been “uploaded” (Transcript 24 May 2024, p.279 line 7). The appellant’s sister gave evidence that the diary was in electronic form, and that she had given a copy to the appellant (Transcript 6 June 2024, p.371 line 41 to p.372 line 14). Neither the diary, nor any copy of it, were ever produced. The appellant gave evidence at trial that the diary was provided to Dr Q (Transcript 24 May 2024, p.279 line 7) but conceded on appeal that Dr Q was correct in that she was not provided with the diary.
The appellant claims the error of fact at [156] was that the maternal aunt never said that she had provided Dr Q with the diary. At [156], the primary judge notes the evidence concerning these claims raised “concern about the veracity of other evidence by those witnesses”. The appellant focused upon the minor error as to who alleged they had given the diary to Dr Q, however the gravamen of the paragraph was that no diary was ever produced despite claims as to the existence of a diary created by the appellant’s sister. The minor error as to whether the appellant’s sister gave the diary to the appellant or Dr Q is of no real significance in the face of the failure to produce any diary.
Particular (k) alleges that the findings at [169] that the appellant would not shield the child from the appellant’s negative attitude towards the respondent are against the weight of the evidence. This is a repeat of Ground 6 and must fail for the same reasons.
In particular (l) the appellant complains that her Honour erred in her findings regarding the allegation that the respondent had bathed the child in an inflatable yellow duck. As the primary judge identified, the appellant did not dismiss this as an invention by the child, nor dismiss it as it did not appear in the supervisor’s reports. The evidence of the relevant contact supervisor noted that the appellant had shown her a picture of an inflatable duck and asked her to look for it at the respondent’s house. The appellant denied the conversation with the supervisor. The issue was dealt with in detail by the primary judge at [172]–[178] before her Honour turned to discuss the message the appellant sent to a supervisor asking her to check if the respondent was keeping “excrement in his fridge” as she was “perplexed about [the respondent’s] consumption of faeces” (at [179]).
On the appeal, the appellant provided a different version of the events concerning the inflatable duck, which was not given at the trial. It is not open to the appellant to run a different case on appeal. This particular has no merit.
In particular (m) the appellant challenges the findings of the primary judge concerning her conduct with respect to contact supervisors. Her Honour found:
194Since the making of orders for supervised time, the parties have had assistance from seven supervised contact agencies. The [appellant] was asked whether or not she accepted that on each occasion the services of the agency were terminated, the termination related to a dispute with the [appellant] and had not occurred at the request of the [respondent]. The [appellant’s] evidence was to the effect the services were terminated due to safety concerns (Transcript 24 May 2024, p.287 line 23). Further, she said that the services of P Group had been terminated at the election of the [respondent]. The documents do not support that conclusion and, when challenged, the [appellant] accepted that she was also responsible for the termination of the parties’ engagement with P Group.
The primary judge reviewed the evidence of the supervision service notes and records at [195]–[222], which supported the finding. For example:
222 The Manager at Y Contact Services replied to the above chain of emails:
Dear [Ms Hahn],
Yesterday I gave you notice of terminating our services due to the ongoing disrespectful behaviour shown by your person and the concerns we had about your mental health. You have breached the terms and conditions of our service agreement on several occasions.
Now you are deliberately communicating with us to disrespect my person again. I kindly ask you to refrain from emailing us. Our work relationship has ended and there is no need to communicate with us especially if you will persist with this kind of behavior [sic].
Please make sure your daughter is safe and all of her emotional and physical needs are met. Your unhealthy behavior [sic] has made us stop assisting you guys. We got to the stage where we are not able to handle the ongoing issues anymore.
At one point the appellant even promoted the use of one Ms FF as a supervisor. The primary judge concluded:
217Ms FF was not a witness in the [appellant’s] case. The evidence supports a finding that the [appellant] engaged a person known to her, but not known to the [respondent] to represent to the [respondent] that she worked for an entity which provided supervision. In fact the [appellant] had engaged a person known to her through a family law Facebook support group to attend the [respondent’s] home as a paid supervisor.
There is no merit in this particular.
Particular (n) alleges that the primary judge erred in finding that the appellant knew details about people she had confronted when the primary judge found that:
249The [appellant’s] repeated conduct in confronting people with whom she has come into contact on a professional basis with her knowledge that she knows where they live or other details about their personal life can only be interpreted objectively as menacing.
The conclusion was supported by the findings (at [239]) that:
…The [appellant’s] actions including confronting the DCJ worker with knowledge that she knew her home address and subsequently making contact with the club are objectively menacing and raise serious questions about the [appellant’s] capacity to act reasonably and proportionately in matters relating to [the child].
The conversation that took place in the relevant telephone call is set out at [228]. The maternal grandmother also gave evidence of hearing the conversation between the appellant and the case worker where the appellant confronted her about living in the appellant’s neighbourhood (affidavit of Ms S Hahn filed 29 February 2024, at paragraph 120). The primary judge set out the terms of the letter to the club at [232].
The appellant had also written to the respondent’s solicitor advising that she knew the solicitor was formerly a health practitioner and from Suburb RR (the email appears at Annexure “MM-134” to the respondent’s affidavit filed 28 February 2024) stating “I have found your registration as a [health practitioner] with your Principal Place of Practice in [Suburb RR].” The email does not state that the appellant knew the solicitor’s address. In De Winter and De Winter (1979) FLC 90-605 at 78,092, the High Court said that:
… It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.
Whether it was a solicitor’s address or details of their previous health practitioner training and location, communications of this type by a person in dispute with a client of the solicitor can have no purpose but to be menacing by demonstrating knowledge of the solicitor’s private life that is irrelevant to the role the solicitor is to perform. Determining whether these acts were sufficient to establish a criminal offence does not address their relevance in assessing the conduct of the appellant in engaging in this type of conduct. We are not persuaded that the minor misdescription of the email has had any effect on the finding that the appellant engaged in menacing conduct.
In particular (o) the appellant alleges that the primary judge erred by finding:
252To the extent that the [appellant], during the hearing, appeared to accept an alternative outcome, namely that [the child] live with her and have unsupervised time with the [respondent] – this alternate proposal needed to be given serious consideration. It would have had the distinct advantage for [the child] of leaving her in the care of [the appellant], leaving her in her current school where reports are she is doing well. The evidence established that a scenario whereby [the child] was to live with [the appellant] and spend unsupervised time with the [respondent] would not function for a number of reasons discussed in these reasons including:
(a)The likelihood of further allegations about the [respondent’s] conduct (such as those which the [appellant] made during the hearing itself);
(b)The likelihood of the [appellant] pursuing alternate means of circumventing the Court’s decision such as became clear from her answer, “if the Court determines that overnight time [for the [respondent]] with [the child] is appropriate, then I will comply with orders. But essentially, child protection sits with the State.” (Transcript 24 May 2024, p.335 lines 15–17);
(c)The significant communication difficulties which exist between the parents and would function to [the child’s] disadvantage;
(d)The likelihood that as [the child] grows older she will become aware of the [appellant’s] views about the [respondent]. In Dr Q’s words, “sometimes the messages that are given covertly are more powerful than the ones that are given overtly” (Transcript 6 June 2024, p.18 lines 46–47);
(e)[The child’s] likely exposure to the [appellant’s] view of authority figures; and
(f)Dr Q’s view that many years of therapy for the [appellant] have not significantly impacted on her views.
The appellant merely says that the primary judge ought to have found that the respondent was “a perpetrator of family violence and an unacceptable risk”. The argument is no more than a general challenge to the findings of the primary judge, failing to acknowledge the earlier findings that the respondent did not present a risk to the child. The argument fails to address the purpose of the paragraph: addressing whether orders for the child to continue to live with the appellant and spend time with the respondent could function. This particular has no merit.
Particular (p) states that “Her Honour erred in the finding at J[259] that the child had not suffered trauma when withheld by the [respondent]”. It appears that the appellant must be referring to paragraph 295 which states:
295The [appellant] submitted that [the child] had been traumatised when the [respondent] retained her between 10 and 15 September 2021. The [appellant] says that [the child] asked her, “why did you leave me there for 5 weeks?” [The child] was four years old. It is reasonable to imagine that she would have found four days away from [the appellant] challenging given the history of care arrangements and the lack of any precedent. That is not the same as finding that she suffered or experienced trauma. [The child’s] maternal aunt gave evidence that [the child] had expressed fear about being kept away from [the appellant] more than six months later and made reference to the police. I accept that the level of conflict and police involvement is likely to have been a cause of concern for [the child]. Similarly, being separated from her primary caregiver for five days without warning would have been difficult for her to comprehend but the evidence falls short of establishing that she experienced trauma. The police saw [the child] at the [respondent’s] home and described her as “happy and content”.
Counsel for the appellant made a submission to the primary judge that the events would have been traumatic for the child (Transcript 7 June 2024, p.543 lines 45–47). The primary judge engaged with the submission, asking what evidence there was of trauma (Transcript 7 June 2024, p.544 lines 1–20). This resulted in the submission that asked the Court to “infer” that the child was traumatised (Transcript 7 June 2024, p.544 lines 22–24). There was no evidence of trauma being suffered by the child. The findings of the primary judge were open on the evidence. This particular is without merit.
In particular (q) the appellant argues that “Her Honour erred in the finding at J[300] in finding that the [respondent] would be supportive of a relationship between the child and the [appellant] and failing to have regard to, or sufficient regard to, the conduct of the [respondent]”. In her Summary of Argument, the appellant alleged that the expert’s evidence was to the effect that the respondent was “unlikely to facilitate a relationship” between the appellant and child. This submission relied upon paragraph 198 of the expert’s 2020 report which provides:
198.While [the respondent] stated that he would be much more open to facilitating [the child’s] relationship with [the appellant], that remains to be seen. He indicated that he attempts to reach out to [the appellant] to enquire about her wellbeing as well as that of [the child], for example during the time of the bushfires, but he also harbours a significant level of mistrust for [the appellant] and her extended family and feels suspicious of their motives and integrity. It is likely that he has not always been respectful in his interactions with [the appellant], leaving her emotionally scarred and bereft of the fantasy of the relationship she and her family wanted for them as a family unit. His capacity to facilitate [the child’s] relationship with [the appellant] should [the child] be placed in his care, could be jeopardised by [the appellant’s] response to such a decision.
The paragraph does not state that the respondent was unlikely to facilitate a relationship between the appellant and the child. The same misrepresentation of the expert’s evidence was made by the appellant’s counsel in her cross-examination of the expert (Transcript 6 June 2024, p.466 lines 15-23) but was not pressed when counsel was unable to identify to the primary judge a relevant paragraph in the expert’s report. This particular has no merit.
Particular (r) alleges that “Her Honour failed to have regard to, or sufficient regard to, the child identifying with both [the appellant] and [the respondent] with the surname she currently uses.” The primary judge considered the appellant’s application to change the child’s surname at [314]–[318]. The appellant sought to change the surname to a hyphenated name using both parties’ surnames, with the appellant’s surname first. The appellant said that the child had been using the hyphenated name as she wished to identify with both of her parents. The primary judge noted that the child’s current name uses the respondent’s surname and the appellant’s first name as the child’s middle name, thus demonstrating connections to both families (at [315]). The primary judge also noted the appellant’s use of “McPedophiles” in the place of the respondent’s surname, on occasion shortening it to “McP”, in accepting the respondent’s concerns that the appellant would likely drop the second of the hyphenated names over time (at [316]).
The appellant has not identified any relevant factor put before the primary judge that her Honour failed to take into account. The decision not to change the child’s name from that appearing on her birth certificate was open to her Honour. This particular is not made out.
None of the particulars to Ground 9, nor the matters taken as a whole are sufficient to establish an appealable error on the part of the primary judge.
Ground 10
10.Insufficient reasons were provided to support the orders made by the Court particularly:
(a)In relation to the impact on the child in relation to the significant change in circumstances that her change in circumstances would necessitate and how subjecting her to the upset that would follow such a change would be in her best interests.
(b)How the [respondent], who it was accepted was a perpetrator of family violence was not an unacceptable risk to the child; and
(c)How the [respondent] was not an unacceptable risk and/or appropriate to be the child’s primary care giver and determine the time she is to spend with the [appellant] once the child turns 12 given his wholly negative view of the [appellant].
The appellant argues that the primary judge provided insufficient reasons on three findings in the judgment. In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA, with the concurrence of the other members of the bench, provided a useful explanation of what is required for reasons to be adequate:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
As quoted earlier, it is not “necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant … Nor is a judge required to make an explicit finding on each disputed piece of evidence” (Housing Commission v Tatmar Pastoral Co at 386 per Mahoney JA) or to “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun at [62]; see also Fox at 132).
Each of the particulars relied upon in support of this ground were the subject of detailed reasons given by the primary judge, as discussed above. Particular (a) fails for the reasons given with respect to Ground 1. Particular (b) fails for the reasons given with respect to Grounds 1, 3 and 4. Particular (c) fails for the reasons given with respect to earlier grounds, and in particular Grounds 6 and 9(q).
Ground 10 is without merit.
CONCLUSION
As the appellant has not established any of the grounds of appeal the appeal must be dismissed.
COSTS
The respondent seeks costs in the sum of $16,445. The appellant opposes any costs order. Having regard to the complex nature of the proceedings and the very large number of grounds of appeal, the quantum of the costs sought by the respondent is reasonable.
The appellant is presently unemployed, however has been employed in the past and is tertiary educated, holding a master’s degree. The respondent is employed and earning a comfortable income. Until the appellant obtains employment, the respondent will receive little child support.
The proceedings concerned significant parenting issues. The trial took place over six days and was followed by a detailed judgment of 336 paragraphs. The appellant was largely unsuccessful at the trial, unsuccessful in obtaining a stay of the primary judge’s orders, and wholly unsuccessful on the appeal. The appellant ought to pay the respondent’s costs.
The Independent Children’s Lawyer filed a schedule of costs totalling $6,831. We are not persuaded to order that the appellant pay the Independent Children’s Lawyer’s costs.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hartnett & Riethmuller. Associate:
Dated: 15 November 2024
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