FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Haward & Haward [2023] FedCFamC1A 99
Appeal from: Haward & Haward [2023] FedCFamC1F 47 Appeal number: NAA 47 of 2023 File number: SYC 6259 of 2018 Judgment of: MCCLELLAND DCJ, CAMPTON & Christie JJ Date of judgment: 22 June 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final orders providing for the child to spend time with the father during the day each Sunday and for the parents to equally pay a portion of the costs of the Independent Children’s Lawyer – Where the child has been exposed to significant and serious family violence between the parents and her older brother – Where the child has experienced psychological harm from being exposed to such violence – Where the child has anxiety and has expressed fear at the prospect of spending overnight time with the father – Where none of these factual findings were challenged by the father on appeal – Primary judge’s determination not clearly wrong – Unsuccessful challenges to the weight afforded to the child’s views and the expert evidence – Where the primary judge’s findings as to risk and conclusion that it was not in the child’s best interests to spend overnight time with the father were open on the evidence – Where the father asserts that the primary judge was in error in not applying an assumption that overnight time with a parent is automatically beneficial to a child – Where such assertion is made absent statutory foundation or authority – Where the primary judge did what she was empowered and required to do in considering the child’s best interests – Where the primary judge’s reasons for making the costs order were adequate – Where the father’s belated challenges grounded from s 117(5) of the Family Law Act 1975 (Cth) were misconceived – Appeal dismissed with costs. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 65DAA, 117 Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Roma & De Roma (2013) 49 Fam LR 226; [2013] FamCA 566
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gahen & Gahen (No 2) [2013] FamCA 936
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Nardini & Legal Aid NSW [2019] FamCA 340
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 80 Date of hearing:
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- Haward & Haward [2023] FedCFamC1A 99
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- [2023] FedCFamC1A 99
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CaseChat Overview and Summary
In the matter of Haward & Haward, the father appealed a decision made by the Family Court of Australia regarding the custody and care of his older child. The mother, who was the primary caregiver, sought sole custody and for the child to live with her. The father contested this, arguing for a more balanced arrangement. The case centred around the mental health challenges and behavioural issues exhibited by the older child, as well as the history of family violence perpetrated by the father against both the mother and the child.
The central legal issue was whether the primary judge's determination regarding the child's living arrangements was correct, particularly in light of the father's history of violence and the child's ongoing mental health and behavioural issues. Additionally, the court had to consider the father's argument that section 117(5) of the Act should be interpreted to not mandate the protection of the public purse, which was rejected based on established legal principles.
The court found that the primary judge's decision was well-supported by the evidence and circumstances of the case. The father's argument about the interpretation of section 117(5) was dismissed as it contradicted established legal precedents. The court concluded that no appealable error was identified in the primary judge's decision and that the mother's sought costs should be awarded against the father, as per the father's concession. The appeal was therefore dismissed, and costs were ordered in favour of the mother.
The central legal issue was whether the primary judge's determination regarding the child's living arrangements was correct, particularly in light of the father's history of violence and the child's ongoing mental health and behavioural issues. Additionally, the court had to consider the father's argument that section 117(5) of the Act should be interpreted to not mandate the protection of the public purse, which was rejected based on established legal principles.
The court found that the primary judge's decision was well-supported by the evidence and circumstances of the case. The father's argument about the interpretation of section 117(5) was dismissed as it contradicted established legal precedents. The court concluded that no appealable error was identified in the primary judge's decision and that the mother's sought costs should be awarded against the father, as per the father's concession. The appeal was therefore dismissed, and costs were ordered in favour of the mother.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons that follow, the appeal will be dismissed. RELEVANT BACKGROUND The older child was born in 2002. It was not controversial that the older child has experienced significant mental health challenges and exhibited behavioural difficulties. The primary judge made unchallenged findings that on at least three occasions while in the presence of the mother and the child, the older child had threatened to seriously harm himself (at [66], [68] and [75]–[77]). During the parents’ relationship, the primary judge found that the father perpetrated family violence against the mother, which included an incident of physical violence on 10 March 2018 involving the father grabbing the mother, chasing her out of the family home and forcibly shoving her phone down her chest (at [49]). The primary judge also found the father had been physically violent towards the older child, including making findings about an incident where the father punched the older child in the face (at [70]–[72]), a number of incidents in March and August 2016 when the father pinned the older child to the ground (at [74]) and an incident in September 2016 when the father responded to a threat by the older child that he would kill himself by saying “do it” (at [75]). It was not controversial that the child witnessed many of the incidents of family violence between the father and the mother, and the father and the older child, leading the primary judge to conclude at [92] that she had been directly exposed to family violence. None of the above findings were the subject of challenge in the appeal. The parents physically separated in September 2018, upon the mother leaving the family home with the child. The father and the older child remained in the home. The mother commenced proceedings on 28 September 2018, seeking orders for occupation of the family home and that both of the children live with her. Orders were made to that effect on 31 October 2018. The father then commenced spending time with the child, initially professionally supervised and then supervised by the father’s brother. In October 2019, the older child commenced living with the father. He was 17 years old at that time. The mental health and behavioural challenges exhibited by the older child continued after this time. As recorded in the reasons, he self-harmed (at [87]), damaged furniture and caused damage to the father’s home while intoxicated (at [88]), and used cannabis frequently (at [89]). The reasons further record the older child being verbally abusive to the father in January 2022, and returning to the father’s home blood-stained and bruised after an altercation in an event venue in September 2022 (at [90]–[91]). Again, these findings were unchallenged on appeal. On 20 January 2021, an order was made discharging the requirement for the father’s time with the child to be supervised, and providing for him to spend time with the child each Sunday from 10.00 am until 3.00 pm, during which time he was restrained from using the internet. That arrangement continued until the trial before the primary judge in early 2023.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The father, in oral submissions, advanced the proposition that s 117(5) of the Act should be interpreted such that there is no imperative that the public purse should be protected. The reverse is true, as the authorities establish that legal aid bodies are to be treated as unfunded (see Nardini; Gahen & Gahen (No 2) [2013] FamCA 936; De Roma & De Roma (2013) 49 Fam LR 226). CONCLUSION AND COSTS No ground identified appellable error by the primary judge. To the extent that the grounds were reliant on an assertion that the judgment was manifestly wrong, such has not been established. The determination reached by the primary judge was open on the circumstances of the case. The appeal will be dismissed. The ICL by way of the Submitting Notice filed 16 March 2023, indicated that they did not want to be heard on the issue of costs. The father conceded that if the appeal failed, a costs order should be made against him in the sum sought by the mother. We shall so order.
Ratio Decidendi
Legal Principle Established
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