Harrell & Hancock-Harrell

[2019] FamCAFC 177

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK-HARRELL [2019] FamCAFC 177

FAMILY LAW – APPEAL – FAMILY VIOLENCE – Parenting orders – Where the absence of the trial transcript could not be permitted to undermine the presumption in favour of the correctness of the decision – Where the conclusion that the appellant posed an unacceptable risk of emotional harm to the child was available – Where the primary judge was entitled to accept the evidence of the single expert – Presumption of equal shared parental responsibility – Where findings that the appellant engaged in family violence were open – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence on appeal – Where the majority of evidence sought to be adduced was either before the primary judge or irrelevant – Application allowed in part.

FAMILY LAW – COSTS – Where the appellant is an undischarged bankrupt in receipt of welfare benefits – Where the appellant has been wholly unsuccessful – Greater weight placed on the appellant’s lack of success and that the respondent incurred legal expenses unnecessarily – Order made for the appellant to pay the respondent’s costs within six months.

Family Law Act 1975 (Cth) ss 61DA, 65DAA, 117

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jacks & Samson (2008) FLC 93-387; [2008] FamCAFC 173
L v T (1999) FLC 92-875; [1999] FamCA 1699
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT: Mr Harrell

RESPONDENT: Ms Hancock-Harrell

INDEPENDENT CHILDREN’S LAWYER: Stewart Family Law

FILE NUMBER: BRC 1164 of 2014

APPEAL NUMBER: NOA 79 of 2016

DATE DELIVERED: 11 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Ainslie-Wallace, Ryan & Austin JJ

HEARING DATE: 18 June 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 29 September 2016

LOWER COURT MNC: [2016] FamCA 831

REPRESENTATION

SOLICITOR FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Ms Firth

SOLICITOR FOR THE RESPONDENT: Barton Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bunning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stewart Family Law

Orders

1. The appellant father’s Application in an Appeal filed 6 April 2018 be dismissed.

2. The appellant father’s Application in an Appeal filed 17 May 2019 to rely on Annexure 1 to his affidavit of 17 May 2019 as his Summary of Argument, be granted.

3. Otherwise, the appellant father’s Application in an Appeal dated 17 May 2019 be dismissed.

4. That the appellant father’s oral application to rely on an affidavit by him dated 9 August 2018 be dismissed.

5. That the appeal be dismissed.

6. That the appellant father pay the respondent mother’s costs of and incidental to the appeal in the amount of $2,568 within six (6) months.

7. The application by the Independent Children’s Lawyer for costs against the appellant father be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 79 of 2016
File Number: BRC 1164 of 2014

Mr Harrell

Appellant

And

Ms Hancock-Harrell  

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. By Amended Notice of Appeal filed on 12 January 2017, Mr Harrell (“the father”) appeals against parenting orders made by a judge of the Family Court on 29 September 2016. The orders relate to the parties’ son, who was born in 2011 (“the child”).  Ms Hancock-Harrell (“the mother”), is the child’s mother and the respondent to the appeal.  She seeks to uphold the orders.  An Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests at trial and in the appeal.  The ICL seeks that the appeal be dismissed.

2. The orders of the primary judge provide that the mother have sole parental responsibility for major long-term issues for the child, the child live with her and that she inform the father of any decision made in the exercise of her sole parental responsibility as soon as practicable. The primary judge was satisfied that the father posed a risk of emotional harm to the child which could be mitigated if the child spent time with him at a contact centre [186]. The ICL was directed to provide various psychiatric reports produced in the proceedings to the father’s general practitioner and a psychiatrist. The father was ordered to attend those practitioners and comply with their recommendations concerning his mental health. After 12 months of the father spending supervised time with the child, provided he was regularly attending those practitioners and they were satisfied that his mental health was stable and he did not pose a risk to the mother and/or the child, the father’s time with the child would be increased and supervision at a contact centre would cease. Supervision would then be undertaken either by an adult agreed between the parties or either of the father’s sisters. After a further 12 months, the father was at liberty to apply to dispense with supervision. Properly understood, the orders in relation to the father receiving psychiatric assistance are a conditional aspect of the overall orders as to time and are, notwithstanding the father’s submission to the contrary, within power (see L v T (1999) FLC 92-875 at 86,391 – 86,393; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).

3. The father does not cavil with his Honour’s finding that the father lives with mental health difficulties, in particular, Obsessive Compulsive Disorder (“OCD”).  However, he says that his Honour should have accepted that his condition was well treated and that the conclusion that the father poses a risk of emotional harm to the child was therefore not available.  It is the father’s contention that the primary judge should have found in favour of the father’s secondary proposal for the parties to have equal shared parental responsibility and that the child’s time be shared week about.

4. It is useful to record at the outset that the parties separated on 5 December 2013 when the child was about two years and four months of age and that the child has lived with the mother ever since.  Following separation, the mother was concerned about the father spending unsupervised time with the child. The father contends that the mother’s concerns were feigned.  Unable to agree about the child’s living arrangements, the father commenced parenting proceedings in February 2014. 

5. Various interim parenting orders were made concerning the child’s time with the father, some of which required supervision whereas others permitted unsupervised time.  However, following numerous charges against the father for allegedly breaching a domestic violence order made for the protection of the mother, on 12 February 2015, orders which allowed the father to spend time with the child were suspended.  Further interim orders were made on 29 May 2015 which enabled the father to spend time with the child at a contact centre for two hours each alternate weekend.  The father did not believe these orders were in the best interests of the child and refused to spend time with the child under those conditions.  The effect of this is that the child has not seen the father since February 2015. 

6. Between then and the trial, the father was convicted of seven counts of breaching a domestic violence order made for the protection of the mother. He was also remanded in custody for a breach of his bail conditions not to have contact with the mother. On another occasion, although a further, similar offence was found proved, no conviction was recorded and the father was placed on probation for 12 months [76]. The primary judge described the father’s violence as “a tirade of obsessive, threatening and personally denigrating emails” which was “terrifying” and, the mother believed was an “overwhelming threat to her security” [213].

7. An important feature of the father’s case was that the mother and her parents posed a risk to the child by virtue of exposure to firearms in the maternal grandparents’ home. That assertion was rejected by the primary judge [191]-[192]. The father’s allegation that the mother posed a risk to the child of child abuse was also rejected and she was found not to pose an unacceptable risk to the child of any kind [199]. Otherwise, his Honour was satisfied that the child was primarily attached to the mother [201] in whose care he was developing in a healthy and normal way [198]. His Honour accepted evidence given by a psychologist that the child would suffer substantial grief and loss if he was deprived of time with the mother which had the potential for significant adverse outcomes for the child’s long term mental health and overall adjustment [201], [203].

8. Having seen the parties give evidence, the primary judge was satisfied that they were unable to communicate and an order for equal shared parental responsibility would occasion “unworkable mayhem” [217]. It followed that an order for sole parental responsibility was necessary and, orders consistent with those proposed by the ICL were found to be in the best interests of the child and made accordingly.

9. We should explain that the conduct of this appeal has been bedevilled by difficulties caused by the father’s failure to comply with directions.  It is understood that he has in the time leading up to the appeal hearing, had a difficult time which included a period when he was incarcerated.  However, that does not explain why it took him in excess of two years to file a summary of argument or why it was necessary for the Appeal Registrar to redo the appeal books that he filed.  Indeed, his appeal was listed for dismissal in 2018 as a consequence of his non-compliance but, given the subject matter, it was allowed to proceed. 

Applications to Adduce Further Evidence

1. The father presented two applications to adduce further evidence which were filed on 6 April 2018 and 17 May 2019.

2. The ability of this Court to receive evidence in an appeal is constrained.  Ordinarily, evidence that was available or reasonably could have been obtained at the time of the hearing will not be received (CDJ v VAJ (1998) 197 CLR 172 at [55] (“CDJ”)).   If it is argued that the admission of evidence would require a new trial, “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]).

3. By his Application in an Appeal filed on 6 April 2018, the father sought that various annexures attached to his affidavit filed on the same day, be admitted as further evidence.  He pressed for the admission of documents numbered 1 and 2 and withdrew his application for the admission of documents 3 to 8.  Document 1 is a firearms disposition record of the maternal grandmother, dated 9 September 2014.  Document 2 is an affidavit by the maternal grandfather dated 19 August 2014 which was before the primary judge and in this respect the application is unnecessary.

4. The Notice of Disposal of a Firearm/Weapon by the maternal grandmother dated 9 September 2014 was not in evidence.  However, it is clear, that at trial the father was given the opportunity to exhaustively explore his contention that the maternal grandparents kept firearms and ammunition unsafely, which posed a threat to the child.  At its highest, this document might establish that one of the firearms was disposed of a few weeks later than the maternal grandmother and the mother said.  Although the discrepancy is of interest to the father, it is not germane to the disposition of the proceedings or the appeal. 

5. Furthermore, as the primary judge noted at [30], the father’s focus on firearms occupied four of the five hearing days in this matter.  However, his Honour said:

   190.I have already observed that during the course of the trial, the firearms issue seemed to, if not wholly, then at least substantially, abate.  It was not until the father realised that one of the documents with which he had been supplied in relation to the weapons disposal, namely a Notice to Acquire, was in fact provided by the purchaser of the relevant firearms, rather than the mother’s family as vendors, that he said “the penny dropped.”  By this he meant that he now for the first time understood that the absence of a date on the document was not some conspiracy on the part of the mother’s family to mislead him, or evidence that in fact the weapons had not been transferred by them.  Rather, based upon the fact he thought the grandparents had authored the document, he had mistakenly formed that view.  That said, he continued to blame the maternal family for not having pointed out that error to him previously, and was highly critical of the fact that they had never responded to his allegations in relation to the firearms at all.

   191.It might be that this was an epiphany for the father, and that he now genuinely has abandoned any view that the maternal grandparents have retained any firearms.  History would tend to suggest that this has been such a preoccupation for the father over such a period of time, that he may not in fact be able to let the notion go, but one can only hope.  However what is now plain is that indeed the maternal grandparents have sold the operable firearms which they previously had in their possession, and have put into storage the three weapons which were inoperable in any event.  There is no suggestion that they have retained any ammunition, nor indeed would there be any reason for them to.

6. It is not now open to the father to re-enliven that issue on appeal and the Application in an Appeal filed 6 April 2018 will be dismissed. 

7. The Application in an Appeal filed on 17 May 2019 was pressed so that Annexure 1 to the father’s affidavit of the same date would become the father’s Summary of Argument in support of his grounds of appeal.  The application was granted.  The remaining documents were otherwise in evidence before the primary judge, already rejected under the Application in an Appeal filed 6 April 2018, or are irrelevant or inadmissible (for example, newspaper clippings of stories unrelated to the family). 

8. The father also sought to rely on his affidavit sworn 9 August 2018 attached to a coversheet titled “My substantive submission is an Annexure to this affidavit”.  As the father presented his case based on the Summary of Argument attached to his affidavit filed 17 May 2019, his affidavit sworn 9 August 2018 will not be accepted.  The annexures attached to this affidavit essentially concern the father’s contention that the mother and her parents lied to the primary judge about the presence and disposition of firearms located at the maternal grandparents’ property in 2014.  This evidence was either before the primary judge or is now irrelevant. 

9. As to the emails attached to the affidavit, we are at a loss to understand how the father could contemplate that they might assist his case for a cooperative parenting arrangement, such as equal shared parental responsibility, equal time or unsupervised time with the child.  His email to the mother (one of many) at page marked “8-15” establishes the point. 

10. The father introduced the email using the words “Your spiteful self centred behaviour”.  The text is as follows:

    Further I am starting to suspect that you and Mummy are coaching him not to talk about school and swimming and what he’s been doing to us.

    If I find out that [name omitted] cunt is interfering with my boy I will fucking destroy her in every legal way possible and ensure she never has contact with my little boy again.

    You fucking keep her away from him. You told me she has destroyed [names omitted], do not wilfully ignore her disgusting influences any further.

    You start protecting him and start ensuring he has the best of the two lives you have consigned him to out of your spite and pride and selfishness,

    Start acting in his best interest, not yours or the disgusting family you have chosen.

    (As per original)

11. To the extent that the affidavit of 9 August 2018 constitutes an application to adduce further evidence, it will be dismissed.

The grounds of appeal

1. Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

2. This appeal was undertaken without the transcript of the hearing in the court below.  There is a strong presumption in favour of the correctness of the decision appealed from (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 626–627). The absence of a trial transcript could not be permitted to undermine the strength of the presumption and necessarily adds a layer of complexity for an appellant who attempts to challenge a judge’s findings of fact, the assessment of reliability of a witnesses’ evidence and, for example, conclusions which are likely to have been influenced by the primary judge’s experience of a person who gave evidence. Again, the advantage which flows to a judge by reason of the judge hearing and seeing a person give evidence (Warren v Coombes (1979) 142 CLR 531), cannot be undermined by the absence of the trial transcript. Similar difficulties may not arise where it is said that the primary judge acted on a wrong principle or failed to apply the statute.

3. The father presented four grounds of appeal, the particulars of which were expanded on in his Summary of Argument.  The grounds of appeal as contained in his Amended Notice of Appeal are as follows:

   1.Judge Tree has made errors of fact and law and not applied s60cc appropriately and has ignored the danger and risk of the Respondent’s acts and omissions as contained in my Fporm 4 (the only relevant Form 4 submitted appropriately). He has misrepresented in his reasons my actions which he at first says were to make my little boy safe but then conveniently smacks me down about. There is no evidence that i have or will harm my little boy, there is conclusive evidence that the Respondent has and still is doing so.

   2.As for the same reasons above Judge Tree has made errors of fact and law and not applied s61DA appropriately and the presumtion of shared parental responsibility should not be rebutted against me because all i did was act to preserve my little boy’s life and protect him from the abuse in my Form 4, and the abuse that is continuing. The presumption MUST be rebutted against the Respondent. There is no evidence that i have or will harm my little boy, there is conclusive evidence that the Respondent has and still is doing so.

   3.Judge Tree has made errors of fact and law and has not acknowledged that the Respondent lied to obtain her DVO and has acted in her parents best interest and not in my little boys best interest and determined that this is contrary to s60CC and confirms the rebuttal of shared parental responsibility against her. This is coercive DV and there is no evidence that I have or will harm my little boy. There is conclusive evidence that the Respondent has and still is committing co-ercive DV, and this behaviour confirms my concerns in my Form 4, on the balance of probabilities, which MUST rebutt the presumption of shared parental responsibility against the Respondent.

   4.Judge Tree had made errors of law in not properly applying case authority, including not following his own judgements that would be in my and my little boy’s favour

   (As per original)

Was the finding that the father posed a risk to the child available?

1. The submissions by the father in support of Ground 1 correlate with Grounds 1 and 2 of his Summary of Argument.  Stated broadly, the father’s contention is that the primary judge was wrong to find that the father posed a risk of any kind towards the child and should have understood that his actions qua the mother, members of her family and police were designed to keep the child safe.  Although the father cloaked the ground and submission in the language of “errors of fact and law”, in relation to the father’s actions there is no suggestion that his Honour erred.  Rather, properly considered, the asserted error is in failing to give appropriate weight to the father’s rationale for acting as he did and insufficient weight to the period between August 2014 and February 2015 when the child spent unsupervised time with the father without complaint as to the father’s conduct.

2. It follows that the ground does not challenge his Honour’s finding at [15] in relation to an incident that occurred on 19 October 2013, which was a precursor to the parties’ separation a couple of months later.  His Honour accepted the mother’s evidence contained in her affidavit filed 25 August 2015 that:

   15.      …

   99.On 19 October 2013, [the father] was still not doing well mentally.  A fight erupted and [the father] launched into a tirade of verbal abuse in front of [the child].  He followed me around the house making abusive comments and asking me intrusive and disgusting questions, which I attempted to ignore.

   100.It became so stressful that I sat with [the child] in the doorway with my hands over [the child’s] ears while [the father] yelled at me and made disgusting filthy sexual comments.

   101.I begged [the father] to stop and reminded him of [the child’s] presence but he would not.

   102.He said:

   a.I had ruined his life

   b.I had no right to bring my boyfriends into our life/his life;

   c.I wanted to see my ex-boyfriend;

   d.He wanted to know how many I had given blow jobs to because I don’t give him blow jobs;

   e.He wanted to know how many of my ex boyfriends had stuck their cock in my arse because I don’t do it for him;

   f.He said he felt like a piece of shit;

   g.He said he was going to have the worst weekend of his life;

   h.He kept asking how I ever though it was acceptable to ask him about ‘[XXX]’ – I told him I had made a huge error and told him I was wrong;

   i.He said I needed to ‘fix this’ – at this time I told him he needed help but he became increasingly angry, gritting his teeth, holding fists and slamming walls.  I suggested he call Lifeline to talk to them;

   j.He said it wasn’t his fault;

   k.He shouldn’t have to do anything;

   l.He said I was a fucking idiot and stupid and once again how I made everything shit;

   m.I turned his life to shit.

   103.I went inside and started to pack as I had a pre-arranged function to go to for my grandmother’s … birthday.

   104.As I was packing up the car he was helping me he said he wouldn’t be alone on the weekend and he had fifteen blokes in his head with him and they would all hang out.

   105.He told me I was running away and I should be staying with him to help him.

   (As per original)

3. It was also accepted that on the day of separation, the father was enraged and verbally abused the mother in the presence of the child (and the mother’s brother) and told the child that it was “all your mother’s fault” [17].

4. On 17 May 2014, the mother sent an email to the father informing him the child had a cold.  Of this, the primary judge said:

   44.…Whilst the father’s initial response was dismissive, a little later again he emailed “yet again you have proven what I believe a low cunt you are by not informing me my son has been to a doctor.  I will do everything I legally can to ensure you and your low cunt mother do not have any care of him.  This will be added to my submissions.  You have no fucking idea about how to be a responsible parent.”

   (Footnote omitted)

5. Again, at changeover, on 8 June 2014:

   49.…On this visit the father asserts that the child attended with an unexplained deep cut to his forehead, and, seemingly when the child was going back into the mother’s care, the father began screaming at her whilst the child was in her arms saying “you should expect a call from Child Service, hey [mother’s surname], I will take him from you..”  The mother says that when her father appeared, the father started to rant at him as well.  She says “[the child] clung tightly to me and seemed confused at what was happening.”

   (Footnote omitted)

6. Throughout this period, the father conducted “a quite remarkable crusade” concerning his allegations of unsafely stored firearms at the maternal grandparents’ home [30]. This was significant because following separation, the mother and the child lived with her parents for some time. The father’s campaign involved complaints to police and resulted in six police visits to the maternal grandparents’ home, the first of which was found to be confronting and distressing for them and the mother. The child was also present.

7. We could go on, but these unchallenged findings more than amply establish that the finding that the father’s conduct constituted “terrifying domestic violence” was available, as was the conclusion that the mother “is justifiably scared of the father” [213].

8. At trial, and on appeal, the father argued that his behaviour towards the mother and other adults was irrelevant to the manner in which he behaved towards the child. The evidence of the father’s behaviour towards the mother in the presence of the child, permits that argument to be quickly rejected, as his Honour did at [178].

9. Nonetheless, the primary judge went on to carefully examine the risk the father posed to the child, on the assumption that the child and the father were alone, as they often were between August 2014 and February 2015.  This required consideration of evidence given by three psychiatrists, Dr N, Dr F and Dr P.  Dr N’s evidence comprised a report but he did not give oral evidence and had last seen the father in July 2015.  Because of the father’s firearms fixation, the Minister for Police referred the matter to the Queensland Fixated Threat Assessment Centre which resulted in the father’s attendance on Dr P.  Although Dr P did not give oral evidence, her two assessments of the father were in evidence.  Dr F was retained as an expert in the proceedings to provide a forensic assessment, which took into account the reports from the other psychiatrists.  Dr F produced a report and gave oral evidence at trial. 

10. Dr F agreed with Dr N that the father has OCD, whereas Dr P considered he had a personality disorder.  Dr F’s opinion was accepted overall.  It was based on wider material and to the extent that he disagreed with Dr N concerning the efficacy of the father’s treatment regime, the primary judge properly took into account that Dr F’s opinion was based on more than the father’s self-report. 

11. Dr F provided examples of the father’s behaviour which suggested that his condition was a disorder rather than personality based. The significance of this finding is that a disorder is more amenable to treatment than is a personality disorder. It is plain that Dr F was questioned at some length about the nature of the risk of physical and emotional harm the father posed to the child, the mother, himself and others. His Honour accepted Dr F’s assessment that the father presents “a low to moderate risk of physical harm” to himself or others [156]. However, the father’s unwavering desire to protect the child persuaded his Honour that the father posed a “low risk of in fact physically harming the child”, which, in an unsupervised setting was not unacceptable [160].

12. Unsurprisingly, one of the central issues at trial was how the father’s behaviour might evidence itself as a risk of emotional harm to the child.  Again, Dr F’s opinion was accepted, which was that if the father could not contain his anger or resist sharing his negative views of the mother with the child, this would be harmful to the child.  For the child to be in the father’s care when the father was distressed and angry, would be upsetting to the child.  That evidence was reality tested against the fact that, post-separation, the father had not shared his adverse views of the mother with the child or sought to emotionally destabilise him. 

13. His Honour reconciled those differences as follows:

    179.The question must therefore be posed, if the father has not done it in the past, why would he do it now?  The answer may be that the father’s behaviour since separation, and indeed since he has last spent time or communicated with the child, has gotten to the point where, on occasions, it has been quite extreme.  For instance there are the occasions when the father has been arrested by police and in resisting that, for so far as I can determine on the evidence, for the first time, been physically violent.

14. The rhetorical question at the start of the paragraph is asked in the context of earlier findings as to unsupervised time and makes it plain that his Honour did not overlook the period during which the father had unsupervised time with the child. This is mentioned more than once. It follows, that notwithstanding that contact and the lack of worrying behaviour towards the child, his Honour was satisfied that until the father’s symptoms from his OCD were managed “so that they are less of an issue in his day to day life, the father does present a risk of emotional harm to the child” [186]. This is a quintessential assessment of risk. Not only are we satisfied that his Honour was entitled to accept the opinion given by Dr F on these matters, there can be no doubt that the totality of the evidence compelled that conclusion.

15. The challenges asserted under this ground have not been made out.

Equal Shared Parental Responsibility

1. Grounds 2 and 3 of the Amended Notice of Appeal incorporate Grounds 3 and 4 of the father’s Summary of Argument, albeit some aspects are inconsistent. These grounds concern the application of ss 61DA and 65DAA of the Family Law Act 1975 (Cth) (“the Act”), in particular the operation of the presumption of equal shared parental responsibility (s 61DA) and the relationship between ss 61DA and 65DAA of the Act.

2. Section 61DA provides:

   61DAPresumption of equal shared parental responsibility when making parenting orders

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)  abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)  family violence.

   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. The primary judge correctly summarised these provisions and the relationship between them as follows:

   106.Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

   107.However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. According to the father, the primary judge should have made findings in accordance with the father’s evidence concerning violence by the mother and gone on to find that the presumption was rebutted against her.  He seeks either an order that the parties have equal shared parental responsibility for the child, (perhaps also an order for sole parental responsibility in his favour) and, argues that the primary judge erred in failing to make such an order. 

5. The effect of his Honour’s findings that the father engaged in “terrifying domestic violence” [213] against the mother, meant, perforce s 61DA(2)(b) of the Act, the presumption of equal shared parental responsibility, did not apply. Although there was no need to do so, his Honour chose to examine each of the sub-sections and, explain why they all pointed to the same result; namely, that the presumption did not apply and an order of the type would not be in the best interests of the child.

6. In the course of that discussion, his Honour said, because each party “asserts” that the other engaged in family violence, there were “reasonable grounds” to believe there was family violence [228]. It needs to be understood that at trial the father relied on 21 affidavits sworn by him and filed two Form 4 Notices of Risk of Abuse which include allegations of family violence and child abuse against the mother. However, at trial the father focused on his allegations concerning the presence of firearms at the maternal grandparents’ property and allegations of the mother’s mistreatment of the child. That being the case, it is readily inferred that he chose not to pursue those other matters in a manner which would have enabled findings to be made on the topic. The absence of the trial transcript stands in the way of the father being permitted to now say that those wider issues of violence were indeed pursued and that the primary judge failed to engage with the facts.

7. The mother denied she had engaged in family violence or child abuse and the primary judge did not find that she had.  How then did the father’s mere “assertion” establish “reasonable grounds” to believe that the mother engaged in family violence and/or child abuse?  We do not understand how evidence which was not pursued at trial, or tested and which was insufficient to establish the fact or risk of violence could, nonetheless, establish a belief based on reasonable grounds.  In our view, the approach taken to the allegations of family violence made against the mother was erroneous and his Honour should not have found there were reasonable grounds to believe she had behaved in that manner.  But this is an error that works in favour of the father and, absent complaint by the mother, in and of itself does not amount to appealable error.

8. The primary judge went on to explain why an order for equal shared parental responsibility would not be in the best interests of the child.  Reference was made to the parties’ inability to communicate which was amply demonstrated before him.  Although this is sufficient to reject the challenge made concerning the presumption of equal shared parental responsibility, it needs to be understood that the father’s primary position at trial was that the presumption had been rebutted and an order for sole parental responsibility (albeit in his favour) was warranted.  It is not open to the father to now complain that the primary judge determined that the presumption did not apply or was rebutted.

9. It follows, that the father’s complaint in relation to s 65DAA must also fail. Section 65DAA operates if the parties are to have equal shared parental responsibility. There can be no doubt that the presumption of equal shared parental responsibility did not apply and his Honour’s conclusion that an order for equal shared parental responsibility would not be in the best interests of the child was available to him. It follows that s 65DAA was rendered irrelevant.

10. These grounds have not been made out.

Failed to make other findings 

1. Grounds 3 and 4 are expressed in the broadest terms, the details of which appear to correlate with the discussion under Grounds 5-7 of the father’s Summary of Argument. These grounds focus on what is said to be his Honour’s failure to appreciate that at all times, the father was motivated to protect the parties’ son from “fatal danger”. The fatal danger being, the risk of exposure to firearms at the maternal grandparents’ property. The genesis of this allegation relates to a conversation the father says occurred around mid-2013, in which he says the mother told him her parents had shot a snake that day and left the snake gun and ammunition out. This was and, remains, a critical issue for the father and, one which “until the fourth day of the trial” was “the father’s primary focus and preoccupation in this litigation” [30].

2. It is manifestly unfair to the detail contained in the trial reasons to argue that his Honour misunderstood the gravamen of the father’s case or the seriousness with which the father viewed this issue. It features in his Honour’s critical findings as to events post-separation, findings as to the father’s attempts to engage police and other agencies in his crusade, and the evidence and analysis given by the psychiatrists. It was not overlooked, and in relation to the firearms issue, his Honour observed that “even at trial the father was protesting that his condition was then well managed, when plainly his continued obsession with the firearms issues was, at least to my mind, a telling example of his obsessionality, and indeed his compulsivity” [162]. That finding in effect mirrors the opinion expressed by Dr F, which, as we have already explained, was evidence which his Honour was entitled to accept.

3. These grounds have not been made out.

Conclusion

1. The father has failed to establish appealable error and, the appeal will be dismissed.

2. In these circumstances, the mother seeks costs.  Her costs were quantified at $2,568 and are sought on the basis that the father has been wholly unsuccessful and she has thus incurred costs unnecessarily.  The father resists the mother’s application for costs.  He relies on the fact that he is in receipt of welfare benefits and is an undischarged bankrupt.  Furthermore, in prosecuting the appeal, he contends that he has merely sought to protect the child.  These are all factors that weigh in favour of the father’s opposition to an order for costs.

3. However, we place greater weight on the father’s lack of success in the appeal and that the mother has incurred legal expenses unnecessarily.  The amount sought by her is modest and although it will occasion some hardship for the father, he is solely responsible for that outcome.  Although we would ordinarily require him to pay the amount due within 28 days, given his strained financial circumstances, he will have six months within which to pay.

1. The ICL sought costs in the amount of $11,399.26. However, when counsel for the ICL was asked to address s 117(4)(b) of the Act which prohibits an order for costs in favour of an ICL if it would cause the paying party hardship, counsel acknowledged that was “the end” of his application. We understood him to mean that the application for costs was withdrawn. However, in case we misunderstood the concession, s 117(4)(b) is fatal to an order for costs in favour of the ICL and the application for costs will be dismissed.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Austin JJ) delivered on 11 October 2019.

Associate: 

Date:  11 October 2019