Hassen & Mawad
[2024] FedCFamC1A 193
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hassen & Mawad [2024] FedCFamC1A 193
Appeal from: Mawad & Hassen (No 2) [2024] FedCFamC2F 356 Appeal number: NAA 112 of 2024 File number: PAC 3649 of 2019 Judgment of: CHRISTIE J Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Whether primary judge erred in findings of family violence – Whether primary judge erred in assessment of findings as to unacceptable risk – Whether primary judge gave adequate reasons – Whether primary judge erred in making adverse inference against appellant – Application of the rule in Jones v Dunkel – Where appellant asserts there was a reversal of onus – Where appellant asserts he was required to prove a negative – No grounds of appeal challenging parenting orders established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
De Winter v De Winter (1979) 23 ALR 211
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lavell & Lavell [2012] FamCA 34
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
RPS v R (2000) 199 CLR 620; [2000] HCA 3
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SS Hontestroom v SS Sagaporack [1927] AC 37
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Number of paragraphs: 66 Date of hearing: 10 October 2024 Place: Sydney Counsel for the Appellant: Mr Mathews Solicitor for the Appellant: Berry Family Law Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Sydney Central Family Law Solicitor for the Independent Children's Lawyer: Harb Lawyers (Did not participate) ORDERS
NAA 112 of 2024
PAC 3649 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HASSEN
Appellant
AND: MS MAWAD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.Appeal NAA 112 of 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hassen & Mawad has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
The appellant husband appeals against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 11 April 2024 which provide that the respondent wife have sole parental responsibility for the one child of the marriage (“X”) born in early 2017, that X live with the respondent, and that X spend no time with the appellant.
For the reasons which follow below, the appeal will be dismissed.
THE TRIAL
On 19 November 2020, interim orders were made for X to live with the respondent and spend supervised time with the appellant for a period of two hours each week – with the first supervised visit occurring in early 2021. Such were the parenting arrangements for X at the time of the trial.
At the final hearing, the respondent made serious allegations of family violence which the primary judge found had occurred. These included:
•The father scratching the mother on her neck and chest.
•The father kicking the mother in her left hip in the presence of [X].
•The father slapping [X] so hard that it left a mark on his face.
•The father slapping the mother on the face with an open hand and hitting her on the head and shoulders with a box of clothes hangers.
•The father pushing the mother’s head into the window in their bedroom.
•The father slapping the mother and [X] on the leg leaving finger marks.
•The father calling the mother a prostitute and a fucking bitch.
•The father telling the mother she had ruined [X’s] personality.
•The father threatening to publicise explicit content of the mother.
The appellant made allegations against the respondent’s partner, Mr D, claiming that X had told him that Mr D kissed him on the lips and touched his buttocks, groin and chest area when using the bathroom (at [212]). The primary judge found that this allegation was not based on any disclosure made by X (at [302]).
The court child expert recommended that the respondent have sole parental responsibility for X, that he live with the respondent, and that he spend no time with the appellant (at [243]). The primary judge placed significant weight on the observations of the court child expert, which included, but were not limited to, the fact that:
(a)It was unlikely the parties would develop a cooperative parenting relationship (at [268]);
(b)Where the appellant was found of perpetrating coercive controlling violence or if there was ongoing conflict between the parties, the negative consequences would outweigh the benefit of X maintaining a relationship with the appellant (at [288]);
(c)The allegations made by the respondent were consistent with violence aimed at coercing and controlling the “victim parent”, leading the primary judge to find that the “risk of lethality at the hands of the father is thus a serious risk for the mother” (at [284]–[285]);
(d)The appellant’s denial that he had perpetrated family violence despite admitting that he sent verbally abusive texts to the respondent was indicative of his lack of understanding about the nature of violence extending beyond physical acts (at [290]);
(e)It was unlikely the acrimonious parenting relationship would improve in the future so as to be “developmentally protective” of X (at [292]); and
(f)The indefinite supervision of X’s time with the appellant would not be ideal, with the court child expert questioning whether it would be a beneficial relationship if long-term supervision was required (at [305]).
The primary judge made findings to the following effect:
[303] I am satisfied having regard to the findings that I have made above that the risks that arise for [X] were he to spend any time with the father in the future are multi-faceted. They are the risks arising to [X] from: -
•the father being the perpetrator of serious family violence including the perpetration of coercive and controlling behaviour and his inability to take responsibility for his actions;
•the impact on [X] of the likely exposure to continued conflict between the parties as a result of the father’s behaviour;
•the inability of the father to support [X’s] relationship with the mother and her role as [X’s] mother;
•the potential psychological damage of exposing [X] to further allegations made by the father arising from his care in the mother’s household; and
•the potential undermining by the father of the mother’s parenting capacity and the negative impact this would have on the mother’s parenting capacity.
The primary judge found that cumulatively, the issues of serious family violence perpetrated by the appellant upon the respondent and X posed an unacceptable risk to X if he were to spend time with the appellant (at [304]).
THE APPEAL
The appellant challenges all of the orders of the primary judge.
While the Notice of Appeal filed 7 May 2024 sets out 16 grounds, the Summary of Argument filed 24 July 2024 on behalf of the appellant does not comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) such that it could only reasonably be concluded that the appellant had abandoned most of the grounds.
At the commencement of the hearing of the appeal, counsel who appeared on behalf of the appellant (who was not the author of the Summary of Argument) indicated it would not be asserted on behalf of the appellant that the primary judge’s decision was affected by bias.
Counsel also said the focus of the appellant’s oral submissions would be to group the grounds of appeal as follows:
(a)Grounds 1–4 allege that some of the primary judge’s findings about family violence were in error;
(b)Grounds 4–8, 13 and 15 allege that the primary judge was in error to find that the appellant posed an unacceptable risk of harm to X; and
(c)Grounds 10–11 and 14 asserted inadequacy of reasons.
The remaining grounds (9,12 and 16) were formally abandoned. I will adopt the approach of analysing the grounds under the headings identified by the appellant.
Findings concerning family violence
A number of issues were explored by counsel for the appellant in oral submissions in support of the general contention that the findings about family violence (or sufficient of them) were unavailable on the evidence. These included:
(1)That the primary judge ought not have drawn a Jones v Dunkel inference about the appellant’s failure to call his mother or sister as witnesses; and
(2)That the appellant was required to demonstrate a negative – and proffered a general denial. In those circumstances, the primary judge ought not to have placed any store on the appellant’s failure to offer an alternative narrative. I will explore both of those topics in turn.
Jones v Dunkel
At paragraphs [93]–[100], the primary judge discussed an incident which the respondent said occurred in January 2019 and involved the appellant pushing the respondent into a window and putting his hands around her throat such that she could not breathe properly. The primary judge found that the events had occurred as described by the respondent. Her Honour, while accepting the inconsistency between the use of the word “mirror” and the use of the word “window”, did not doubt that an act of family violence had occurred. The primary judge gave a number of reasons for the conclusion: the detailed nature of the respondent’s evidence, her overall consistency, her rejection of the appellant’s denial, and finally, the appellant’s failure to call his mother who was said to have been present. It is this last basis which was the focus of submissions. Counsel for the appellant said that it was not open for the primary judge to have placed any significance on the failure of the appellant to call his mother because it was not put to him that he ought to have.
The respondent made a statement to police about this event in August 2019. That statement was relied upon by the police to obtain an apprehended domestic violence order (“ADVO”). In that statement (at [10]) the respondent said: “[the appellant’s] mother entered the room and told him to stop and said, “enough is enough”.”
The primary judge acknowledging as part of the matrix that the appellant did not call evidence from his mother was unremarkable and “leads rationally to an inference that the evidence of that…witness would not help the party’s case”: RPS v R (2000) 199 CLR 620 at [26] per Gaudron ACJ, Gummow, Kirby and Hayne JJ (discussing Jones v Dunkel (1959) 101 CLR 298 at 321, per Windeyer J (“Jones v Dunkel”)).
The appellant submitted that in order to draw the inference arising from the decision in Jones v Dunkel, certain preconditions are necessary. I agree. As the Full Court observed in Murdock & Madden [2011] FamCAFC 219 at 69–70:
No inference should be drawn unless and until “enough has been proven to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can be sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
The satisfaction of each of these preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case…
Accepting all that is contained in the above passage – the question of the veracity or otherwise of the respondent’s allegations about family violence perpetrated by the appellant was squarely in issue in the proceedings and known to the appellant. Evidence from a witness said to have been present on an occasion where the appellant denies that an incident occurred would be expected, particularly when that witness is the parent of the appellant. Counsel on appeal somewhat faintly referred to the challenges which may have occurred in taking evidence from a witness overseas, but this was not a matter which was raised by him at trial when his failure to lead evidence from his mother was unexplained.
The issue concerning the drawing of inferences and the issues which arise when one party seeks to demonstrate a negative are related, as this passage from the decision of Murphy J in Lavell & Lavell [2012] FamCA 34 demonstrates:
[127]Counsel also submitted in that context that the “onus is not on [the husband]” and that the husband “should not have to prove a negative”. In my view, neither submission is correct. First, there is no single onus of proof; rather, “the burden of proof upon the different issues may be variously distributed between the parties …” (LexisNexis Butterworths, Cross on Evidence, online edition, [7005]). Secondly, where an inference can fairly be drawn from evidence against the interests of a party, if findings against that party’s interests are not to be made, an “evidential burden” or “burden of adducing evidence” arises (Cross on Evidence, [7015]). It is irrelevant whether that involves proving “a positive” or “a negative”.
[128]Those broad principles have particular application in this Court. Each of the parties is required to put before the Court all such evidence as each is willing and able to bring in support of the findings contended for and, in this Court, that is done by exchange of affidavits ahead of the trial. The discussion of evidentiary burdens rendered operative by the establishment of a prima facie case in courts where evidence is given viva voce and not disclosed prior to the trial (see, e.g. Cross, above) becomes almost moot; such findings as each party contends for have (or should have) their evidentiary bases in evidence sworn ahead of the trial.
[129]It seems to me that, by reason of the processes of this Court, the “rule in Blatch v Archer” might have some importance in cases such as the present where documentary and independent evidence is scant and where each party seeks to have the court draw inferences from contested evidence and where reservations attend the veracity of that contested evidence.
[130]The principles that might govern the application of that principle (see e.g. Ho v Powell cited in ASIC v Richat [438]) can be seen to have parallels in the three conditions that must be met for the “rule in Jones v Dunkel” to apply: the “missing witness [or evidence] would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence)”; the “evidence would elucidate a particular matter, which is a live matter at the trial” and “the absence [of the evidence] is unexplained”. (ASIC v Richat [449]).
Proving a negative
In the affidavit of the appellant, he included a heading, “[Ms Mawad’s] allegations of Family Violence”. In the paragraphs which follow that heading, it is plain that the appellant was aware that the respondent had made specific allegations of violence having occurred in February 2018, January 2019, early February 2019, late February 2019 and March 2019.
The appellant’s evidence was (at [53]):
I vehemently deny that I have ever subjected [Ms Mawad] or [X] to any sort of family violence.
(Appellant’s affidavit filed 31 March 2023; AB p.256)
He did not give any specific affidavit evidence about events in February 2018, January 2019, early February 2019, late February 2019 and March 2019.
The appellant contends that the primary judge was in error in concluding – as part of her analysis of whether the evidence of the respondent met the civil standard – that significance could be attached to the failure by the appellant to provide any account (however innocuous) of what had occurred on those days from his perspective. The appellant says this was an error because it effectively reversed the onus by requiring the appellant to demonstrate a negative – that is, that no incidents of family violence occurred. I do not accept that what the primary judge did was to effectively reverse the onus. The respondent alleged violence and the primary judge was entitled to take into account the whole of the evidence, the manner in which the respondent gave her evidence, the appellant’s evidence (or lack thereof) and the manner in which he gave his evidence to reach a conclusion about each of the matters which were in contest.
It was the appellant’s case at trial that the respondent had fabricated the allegations of family violence to hurt him, his reputation and his relationship with X.
On appeal, it was submitted by the appellant that since the parties had (consistent with the trial directions) filed their affidavits simultaneously, it would have been near impossible for the appellant to intuit the content of the respondent’s evidence (given his position that it was fabrication).
As previously discussed, the appellant was not ignorant of the allegations. The earlier proceedings before the state Magistrates Court had dealt with the same allegations.
February 2018
The first incident the subject of that litigation was the argument about the purchase of an item overseas by the appellant for the appellant’s now wife. The appellant accepted that the argument occurred but gave no evidence in chief about what occurred on that day from his perspective.
Her Honour found that the incident occurred in the manner described by the respondent. Part of the basis upon which the primary judge accepted the respondent’s evidence was because it was “unchallenged”. That was not accurate. Counsel for the appellant put to the respondent that the events set out in her affidavit “simply didn’t happen” – she disagreed and said “[i]t happened”: Transcript 30 November 2023, p.72, line 40).
The respondent conceded that the primary judge was in error when she recorded that the respondent was not cross-examined about the allegation that the appellant had slapped her while she was breastfeeding X.
For this mistake to constitute appellate error, it was necessary for the appellant to establish that the primary judge’s mistaken belief that the respondent was not challenged about this one allegation was material to the court’s ultimate findings: De Winter v De Winter (1979) 23 ALR 211 at 589. Given the nature and extent of the findings about family violence, the appellant has not established materiality.
January 2019
The incident, discussed above, is one where the respondent contended the appellant’s mother had been present.
In viewing the evidence before the primary judge holistically, she was entitled to consider that the appellant gave no specific evidence, and as already discussed, did not call his mother.
Early February 2019
The appellant was aware from the earlier proceedings that the respondent alleged she was scratched by the appellant. The appellant gave no specific evidence about that day. The respondent had photographed the scratch on her arm the day after it occurred.
Late February 2019
The appellant was aware from earlier proceedings that the respondent alleged the appellant kicked her. The appellant gave no specific evidence about that day.
March 2019
The appellant was aware from the earlier proceedings that the respondent alleged she was scratched by the appellant on her neck and chest. The appellant gave no specific evidence about that day.
The respondent raised specifics in respect of her allegations of family violence with the court child expert and these were recorded in the Family Report dated 25 November 2022.
It follows that the appellant was aware of the allegations of the respondent including specifics as to dates and injuries. I accept that the appellant was entitled to approach the matter by offering a blanket denial but by so doing, he allowed the primary judge only the opportunity of hearing one narrative of what occurred on those days.
Ground 1 – The primary judge erroneously found that the appellant had committed many serious criminal offences by assaulting the respondent and the child of the marriage on a number of occasions as there was insufficient evidence to warrant those findings
A finding will only be erroneous if it was unavailable to the primary judge. Here, the primary judge concluded that the evidence established a number of incidents of family violence perpetrated by the appellant towards the respondent or X.
The reference to the “sufficiency” of the evidence is curious. The primary evidence was that of the respondent. The primary judge accepted her evidence in respect of a number of events.
To the extent that it can be ascertained from the appellant’s Summary of Argument, it seems to address ground 1 at [6]–[31]. The appellant’s written submissions do no more than repeat the submissions which were made to the primary judge and rejected by her Honour.
Ground 2 – The primary judge erroneously found that the appellant had committed various acts of family violence against the respondent and the child of the marriage on a number of occasions as there was insufficient evidence to warrant those findings
The ground asserts that the primary judge had “insufficient evidence” upon which to conclude that certain facts were proven. It does not assert that there was no evidence or that the finding was unavailable having regard to the evidence. It must not be forgotten that the primary judge had the evidence of the respondent on oath – which she accepted (albeit not in each case). Ironically, the ground was argued with reference to the instances where the primary judge declined to make a finding that events had occurred. In so doing, the primary judge was not concluding that the events had not occurred, but rather, that, in that particular instance, she was not satisfied the respondent had met the evidentiary burden. In effect, the appellant argued, on appeal, that there was sufficient similarity between the incidents which the primary judge had found proven and those which she had not to render the conclusion about those findings unsafe. This submission ignores the differences in the severity of what was alleged, the trial judge’s advantage and the references to failure to call another person, who was present, as a witness. I acknowledge that I am in a “permanent position of disadvantage as against the trial judge” in assessing the evidence and credibility of a witness: Fox v Percy (2003) 214 CLR 118 at [77] (discussing SS Hontestroom v SS Sagaporack [1927] AC 37 at 47). The ground is without merit.
Ground 3 – The primary judge erred in concluding that the respondent’s uncorroborated evidence that the appellant had assaulted her and the child of the marriage on a number of occasions was credible when that evidence was inherently implausible
The primary judge carefully and methodically set out the respondent’s allegations. Her Honour noted that the appellant’s position in respect of the alleged assaults was a denial. In addition to the affidavit material, the primary judge had the advantage of seeing both of the parties cross-examined. I do not accept that there is anything inherently implausible in the respondent’s account.
The appellant’s Summary of Argument correctly cites Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or palpably misused his [or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
(Footnotes omitted)
That was the position in this case.
The appellant’s Summary of Argument incorrectly stated that the primary judge found the respondent’s account in respect of some incidents to have been fabricated. No such finding was made and counsel who appeared for the appellant at the hearing of the appeal properly acknowledged same and effectively withdrew the submission. What all parties accepted was that the primary judge concluded that, in respect of some particular incidents, the respondent had not discharged the evidentiary burden required to ground the finding she sought. That is manifestly different from a finding that the respondent has fabricated evidence.
The primary judge properly recognised that evidence need not be corroborated to be accepted. Axiomatically, offences which occur behind closed doors are likely to be uncorroborated. This ground fails.
Ground 4 – The primary judge erroneously found that there were sufficient acts of family violence to warrant the order that the child should not spend any time with the appellant
This ground is curiously expressed. It appears to contend that the primary judge was in error to regard the evidence as having met some threshold of the sufficiency such as to warrant the making of a no time order. No specific written or oral argument was made in support of this ground and so it will not be considered further. To the extent that the appellant made submissions which related to the findings of family violence more generally, they have been discussed above.
Unacceptable risk
Ground 5 – The primary judge erred in concluding that the appellant be precluded from having any contact whatever with the child of the marriage and in making orders giving effect to that conclusion as by doing so she ignored evidence demonstrating that the child had a strong affection for the appellant and that to deny any furtherance of their relationship was not in the best interests of the child
Ground 5 is misconceived. It is appropriate for a trial judge to have regard to the value of the relationship between X and the appellant and her Honour did so at [274]. It was precisely because the evidence persuaded the primary judge that protection of X from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence required a no time order that her Honour, notwithstanding the value of the relationship, was required to give precedence to X’s safety consistent with the operation of s 60CC(2A), as her Honour recognised at [16]. This ground is not established.
Ground 6 – The primary judge erred in determining the matter as she did upon the essential premise that in the event that the appellant was permitted to have any contact with the child of the marriage the child would be exposed to an unacceptable risk when that premise rested upon disputed evidence of alleged misconduct on the appellant’s part more than four years ago and was in complete disregard of the fact that in those years since the appellant has had supervised contact with the child without incident
This is not an appeal ground as it does not assert an error of law. It, in effect, does little more than agitate an argument which did not succeed at trial. The primary judge made findings about the facts which underpinned the assessment of future unacceptable risk. Having found that such risk could not be ameliorated by the imposition of long-term supervision, it followed that the ultimate orders were for no time. Finally, it is not accurate, having regard to the primary judge’s findings at [276] concerning intimidation of the respondent and her new partner, that there have been no incidents in the past four years.
Ground 7 – The primary judge erred in concluding that the appellant be precluded from having any contact whatever with the child of the marriage and in making orders giving effect to that conclusion in wrongly finding that the appellant was not able to support the child’s relationship with the respondent; that the risk of the appellant making unfounded allegations could not be ameliorated and that the appellant perpetrated family violence
Having regard to the matters already canvassed above, it is only necessary to address the asserted error which contends that the primary judge wrongly concluded the appellant was unable to support the child’s relationship with the respondent. Again, the finding was available on the evidence and no error has been demonstrated.
Ground 8 – The primary judge erred in failing to consider the advantages and disadvantages of each party’s proposal concerning parenting
The primary judge was obliged to have regard to all relevant statutory considerations. The suggestion that the primary judge was obliged to consider the advantages and disadvantages of each party’s proposal is gloss on the statute. The primary judge was obliged to have regard to the relevant s 60CC(2) and (3) considerations in reaching a conclusion about what parenting orders would be in the best interests of X. Her Honour discharged that obligation and no error is established.
Ground 13 – The primary judge erred in that she misdirected herself as to the proper approach to be followed in determining an unacceptable risk to the child
This ground appears to be a different way of stating the complaint which appeared at ground 12 – which was abandoned.
At [271], the primary judge said:
The issue for determination thus becomes what time, if any, [X] should spend with the father. I must therefore undertake an assessment of the potential risk of harm to [X] were he to spend time with the father. The assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M [1988] HCA 68. The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard. The concept of “unacceptable risk” falls within the broader issue of determining what is in the child’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient: see M & M [1988] HCA 68 and B & B [1993] FamCA 143.
Apart from the bold statement in the Summary of Argument to the effect that the primary judge had misread Isles & Nelissen (2022) FLC 94-092, no argument was offered as to how the primary judge had misread or misapplied authority. The primary judge appears to have well understood the distinction between findings about facts which have occurred in the past and an assessment of future risk grounded in both those findings and other information which may not have resulted in a finding. No error is demonstrated.
Ground 15 – The primary judge erred in failing to consider that any unacceptable risks found could not be ameliorated
The primary judge explicitly considered this issue at [303]–[309] of the reasons for judgment, and accordingly, the complaint is not a failure to consider but a failure to conclude as the appellant would have preferred. The conclusion reached by the primary judge was available on the evidence. The ground lacks any merit.
Adequacy of reasons
It is accepted that the law in respect of adequacy of reasons in a discretionary judgment is that articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 (at 18) and applied in Bennett & Bennett (1991) FLC 92-191 (“Bennett”) at 78,266:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reason upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
Ground 10 – The primary judge erred in failing to give proper reasons in reaching her decision that it did not illuminate the proper pathway
The ground, as drafted, seems to assert inadequate reasons and failure to have regard to the requisite statutory considerations. No submissions were made about the latter contention, and to the extent that the appellant asserts inadequacy of reasons, no submissions persuade me that the primary judge’s decisions were anything other than clear, comprehensive and thorough.
Neither of the two criteria applied by the Full Court in Bennett are established here and the ground must fail.
Ground 11 – The primary judge erred in failing to properly consider:
a. The respondent’s concessions as to the positive nature of the child’s time with the appellant pursuant to interim orders made on 19 November 2020 providing supervised time with the appellant;
b. That there was no allegation beyond September 2020 of the appellant committing family violence;
c. Any of the evidence of the deponent, [Ms E];
d. That an Apprehended Violence Order sought against the Father was dismissed after a three day hearing in the Local Court of New South Wales.
The appeal ground effectively complains that the primary judge failed to accord sufficient weight to an aspect of the evidence. Appeals which contend that insufficient weight was given to evidence are notoriously difficult since matters of weight fall within the generous ambit of the primary judge’s discretion: Norbis v Norbis (1986) 161 CLR 513 at 539–540.
It is plain from the primary judge’s reasons at [248], [250], [252], [274] and [298] that her Honour properly considered the respondent’s concession as to the father/child relationship and the (theoretical) benefits of supervised time with the appellant in the context of weighing the factual findings and making the resulting orders.
As previously discussed, the primary judge’s finding of intimidation of the respondent and her new partner was a finding which meets the definition of family violence and does not permit the appellant to contend that there was no allegation beyond September 2020.
It is not accurate to assert, as the appellant does, that the primary judge failed to properly consider the evidence of Ms E. The primary judge plainly refers to the text message communication initiated by Ms E with the wife of Mr D’s friend which included threats about court proceedings and immigration status (at [224]) and had read and considered Ms E’s affidavit filed 19 July 2023 (at [8]). The primary judge was not required to refer to all of the evidence and a failure to so do does not mean that it has not been considered (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
The appellant’s real complaint is that in considering that evidence, the primary judge did not accord it greater weight or more starkly was not persuaded by it to make the orders for which the appellant contended. That circumstance could only be demonstrative of legal error if the evidence to which the appellant refers must have led to the making of different orders. The appellant has not established that to be the case.
Finally, the ground contends that the primary judge failed to accord sufficient weight to the fact that the Magistrates Court proceedings resulted in an acquittal of the appellant and no final ADVO was made. The primary judge was always entitled to approach the fact-finding exercise independently of the findings of another court. No error has been demonstrated.
Ground 14 – The primary judge erred in not giving any reasons as to the facts underpinning her assessment that there was a possibility or likelihood of future risk by the appellant warranting the order that the child should not spend any time with appellant
To contend, as this ground does, that the primary judge failed to give any reasons for her assessment is a gross distortion of reality. The primary judge’s reasoning process is laid bare in a judgment which runs to 73 pages and canvases all relevant issues for determination raised by the parties and the Independent Children’s Lawyer. It follows that I reject the ground as devoid of merit.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 18 October 2024
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