Hedlund & Hedlund
[2021] FedCFamC1A 84
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hedlund & Hedlund [2021] FedCFamC1A 84
Appeal from: Hedlund & Hedlund [2020] FCCA 2578 Appeal number(s): EAA 141 of 2020 File number(s): SYC 2529 of 2017 Judgment of: ALDRIDGE, AUSTIN & GILL JJ Date of judgment: 15 December 2021 Catchwords: FAMILY LAW – APPEAL – CHILDREN – Whether the effect of the orders is manifestly unjust or unreasonable – Whether primary judge took into account irrelevant considerations – Whether primary judge failed to take into account relevant considerations – Whether primary judge made a mistake as to the facts – Procedural fairness – Whether injunction under s 68B of the Family Law Act 1975 (Cth) is affected by error of law – Whether s 68B injunction a parenting order – Discussion of the scope of s 68B – Duration of s 68B injunction – Where Personal Protection Order was of indefinite duration and went beyond injunctive orders actually made – Error of law in relation to Personal Protection Order established – Balance of appeal dismissed.
FAMILY LAW – APPEAL – CROSS-APPEAL – PROPERTY – Orders made by primary judge requiring sale of property to discharge settlement payment manifestly unreasonable – Cross-appeal allowed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Whether further evidence undermines factual conclusions reached by primary judge – Circumstances do not justify the reception of further evidence – Further evidence not admitted – Application dismissed.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 60CG, 64B, 65H, 68B, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 35, 36
Federal Proceedings (Costs) Act1981 (Cth)
Cases cited: Anderson v Hassett [2007] NSWSC 1310
Bennett v Bennett (2001) FLC 93-088; [2001] FamCA 462
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172 at 246; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
EJK v TSL (2006) FLC 93-287; [2006] FamCA 730
Flanagan and Handcock (2001) FLC 93-074; [2000] FamCA 150
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Royal Guardian Mortgage Management Pty Ltd v Nguyen and Anor (2016) 332 ALR 128; [2016] NSWCA 88
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Number of paragraphs: 150 Date of hearing: 29 July 2021 Place: Sydney (via video-link) Counsel for the Appellant: Mr Bennett Solicitor for the Appellant: Coleman Grieg Lawyers Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: McDermott Lawyers Solicitor for the Independent Children’s Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
EAA 141 of 2020
SYC 2529 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HEDLUND
Appellant
AND: MS HEDLUND
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, AUSTIN & GILL JJ
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appellant’s Application to Adduce Further Evidence filed 16 June 2021 is dismissed.
2.The document entitled “Final Personal Protection Order” which is annexed to and referred to in Notation A of the orders made by the Federal Circuit Court of Australia on 14 September 2020 is set aside ab initio.
3.Order 24 of the orders of 14 September 2020 is discharged.
4.The balance of the appeal contained in the Further Amended Notice of Appeal filed 30 June 2021 is dismissed.
5.The cross-appellant’s cross-appeal contained in the Amended Notice of Cross-Appeal filed 9 July 2021 is allowed.
6.Orders 17, 18 and 19 of the orders of 14 September 2020 are discharged.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hedlund & Hedlund has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & GILL JJ
This appeal concerns orders made by a judge of the Federal Circuit Court of Australia (as the Court was then known) on 14 September 2020 that determined the parenting arrangements for the children of the parties and the division of their property. The parenting orders provided, in general terms, for the mother solely to exercise parental responsibility for the children, for the children to live with her and for the father to spend no time with the children. The orders that the children will spend no time with the father are buttressed by injunctions that prevent him, in general terms, from approaching or contacting the children or the mother, subject to the mother providing her consent otherwise in writing.
By Further Amended Notice of Appeal filed 30 June 2021 the appellant father asks that these parenting orders be set aside and that the proceedings be remitted for rehearing.
The property orders which provided for a 75/25 split of the property and superannuation interests of the parties in favour of the mother are not challenged by the father unless the parenting proceedings are remitted for rehearing, in which circumstance the father seeks that the property proceedings also be remitted.
By Amended Notice of Cross-Appeal filed 9 July 2021, the respondent mother seeks that orders compelling the sale of a property to satisfy the judgment payment to the father be set aside and, in the re-exercise of discretion, that alternate orders be made providing for the payment to be made to the father. The orders are such that the father will receive a cash payment of about $5,000. They mandate the sale of an investment property held in the name of the mother in order to make this payment. It is the sale of the investment property as the primary mechanism of payment that the mother seeks to avoid by her cross-appeal.
The father has applied for further evidence to be received on the appeal, with the mother filing evidence responsive to such. The central aspects of the father’s evidence are that it shows that the elder child has previously run away and is presently in the care of the State welfare authority as a result of the escalation of his behaviour following the making of the orders. We shall deal with the application under the ground to which the evidence is said to be relevant.
BACKGROUND
Mr Hedlund (“the father”) and Ms Hedlund (“the mother”) commenced living together in April 2007 and married in November 2008. They have two children. Their oldest child, X, was born in 2011 and their youngest, Y, in 2013. The parties separated in April 2017.
Both of the children were uncontroversially described by the primary judge as having special needs. X has been diagnosed with autism spectrum disorder, an intellectual disability, a medical disorder, behavioural problems and delays in development. Y has been diagnosed with autism spectrum disorder, but with lower needs and without behavioural disorders. It was also uncontroversial, and a central aspect of the case, that X has exhibited major behavioural problems in the care of the mother. X has assaulted the mother and has repeatedly absconded from her under circumstances that place him in danger.
A key issue at the trial was the cause of this behaviour by X and whether the responsibility for such lay at the feet of the mother due to an inability to manage him or upon the father for actively promoting such behaviour by X. The primary judge found that the father was responsible for X’s behaviour and that he had encouraged it.
Further, each of the parties asserted at trial that the other had been the perpetrator of family violence upon the other. The father asserted that the mother suffers from mental health issues that compromise her capacity as a parent.
GROUNDS OF APPEAL
The father’s Further Amended Notice of Appeal filed 30 June 2021, sets out nine grounds of appeal. In support of this notice he relied upon his Summary of Argument which was filed in relation to his previous Amended Notice of Appeal. He limited his reliance on the Summary of Argument to those matters raised in the Further Amended Notice of Appeal, along with additional oral submissions addressing some of the grounds.
It is convenient to group the grounds into common areas of challenge to the orders.
Before doing so, it is necessary to identify that, this being an appeal from a discretionary judgment, the permissible grounds of appeal are those set out in House v The King (1936) 55 CLR 499 (“House”), which allow the challenge of such a judgment on a number of bases only. Those challenges may be brought due to an error of law affecting the judgment, the taking into account of an irrelevant consideration, the failure to take into account a relevant consideration, the mistaking of the material facts, and finally, the making of a decision that is manifestly unjust. The significance of the final of these grounds is that it does not require the identification of one of the other specific errors, but rather, error is inferred from the result. It must be remembered that this last ground is not made out by an appeal court coming to a different conclusion to the trial judge as to the way in which it would exercise the discretion. Rather, it requires the father to establish that the result could be no proper exercise of the discretion.
Attempting to understand the grounds in terms of the challenges available following House allows some grouping of the appeal grounds, based on their text, and the father’s Summary of Argument filed 16 June 2021.
Procedural fairness grounds
Grounds 6 and 7 allege that the father was not given procedural fairness. Challenges to a judgment based on bias or other procedural fairness issues are to be dealt with prior to other grounds as they are matters that go to the validity of the trial (see Royal Guardian Mortgage Management Pty Ltd v Nguyen and Anor (2016) 332 ALR 128 at [9]–[10], applying Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). Ground 6(c), which contended that the father was not accorded procedural fairness in respect of the making of injunctive orders, was not pressed.
Ground 6 is in the following terms:
6. The learned trial judge failed to afford a party procedural fairness, in that:
(a) the judge failed to afford a proper opportunity to the Father to receive, consider, and understand evidence-in-chief of [Dr L], and prepare for cross-examination of [Dr L];
(b)in circumstances where the Father was self-represented; and
(c)further, his Honour did not afford the Father a reasonable opportunity to address the proposal to make an injunctive order under s 68B in the manner that the Court did.
(As per the original)
Two observations may be made about the complaints regarding the evidence of Dr L, X’s treating psychiatrist. The first is the fact that what preceded the calling of Dr L was the father’s tender in the proceedings of three earlier reports prepared by Dr L which he had annexed to his affidavit filed 24 July 2019. While the father may not have anticipated the calling of Dr L until the hearing commenced, the evidence and relevance of Dr L was a live matter at the proceedings at the instigation of the father.
Secondly, the father was afforded notice within the proceedings of the opportunity to cross-examine Dr L. Dr L did not give evidence until the second day of the trial. This ameliorated the effect of the granting of permission to call Dr L as a witness at the commencement of the hearing, as it provided some opportunity to the father to prepare any cross-examination.
Although it may have been desirable for the father to have had earlier notice of the possibility of the calling of Dr L and to inform him that the calling of Dr L without an affidavit was a departure from usual procedure, the base issue is one of procedural fairness, the content of which is to be judged in the circumstances of the particular case. In this instance the reliance of the father on Dr L and the delay before he was called are sufficient to mean that the father was not denied procedural fairness in relation to this aspect of the trial.
Ground 6 is dismissed.
Ground 7 contends that:
7.The learned trial judge erred in dismissing the Applications in a Case filed in the proceedings 14 April 2020, 6 August 2020 and 1 September 2020 and the Contravention Application filed 27 August 2020, without affording the parties the opportunity to be heard on these applications, at all.
(As per the original)
Ground 7 concerns the dismissal of applications for interlocutory relief filed after the completion of the trial but prior to judgment, on 14 April 2020, 6 August 2020 and 1 September 2020 and the Contravention Application filed 27 August 2020, without providing any opportunity for the parties to be heard on the applications.
These applications were dismissed by the primary judge at Order 22 as follows:
22. All extant Applications, including Contravention Applications, be dismissed.
Dealing firstly with the interlocutory relief, the applications were:
(a)By his Response to an Application in a Case filed 14 April 2020, the father sought the reopening of the trial, leave to issue a subpoena, interim orders changing the arrangements for the children, interim injunctive relief and for the mother to attend an anger management and domestic violence rehabilitation program;
(b)By his Application in a Case filed 6 August 2020 (sealed 7 August 2020), the father sought the reopening of the trial, leave to issue a subpoena, interim orders changing the arrangements for the children, interim injunctive relief, for the mother to attend an anger management and domestic violence rehabilitation program, and for the ICL to be discharged; and
(c)By his Application in a Case filed 1 September 2020 (sealed 11 September 2020), the father sought the reopening of the trial, leave to issue a subpoena, interim orders changing the arrangements for the children, interim injunctive relief and for the mother to attend an anger management and domestic violence rehabilitation program.
The reasons directed to this issue were at [31] of the judgment:
31.I note that when the matter was reserved, interim orders allowing the father time with the children continued. There were applications to reopen by the father because the father said that X’s ongoing conduct meant that X should be removed from the mother’s care. The events outlined post hearing are entirely consistent with what would be expected given my findings, and do not lead me to consider that any further hearing is required, given the overwhelming weight of evidence that X’s conduct was caused by the father’s encouragement, and that X’s conduct is likely to improve significantly and relatively quickly when the father’s influence is removed from his life.
In Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, the High Court dealt with the role of an appeal court in dealing with interlocutory orders made in the context of the trial the subject of appeal. The majority recognised that “in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong” (at [5]). The majority said:
6.The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that “on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result” (emphasis added).
7.It is necessary to make the qualification, “which affected the final result”, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. …
(Footnotes omitted)
While the father reasonably contended that it is a serious matter to dismiss an application without hearing further from the parties, relevant to the issues before this Court is the impact such a decision has on the result. That question is resolved by the oral concession made by the father at the appeal hearing that identified that these dismissals were of matters of marginal utility and limited significance. Those concessions are significant, as they identify that the dismissals were not of a character to affect the final result.
As impact upon the final result is the touchstone against which error in relation to the interlocutory applications is to be judged, appeal Ground 7 should be dismissed.
Turning to the dismissal of the Contravention Application filed 27 August 2020, it was alleged that the mother had failed to facilitate communication between the father and the children on four occasions.
Although the dismissal of the contravention without hearing from the father is indicative of procedural unfairness, the significance of the dismissal of the contravention was unexplained by the father.
The contravention was a cause of action distinct from the determination of the parenting orders and, absent explanation otherwise, could not be assumed to be material to the determination of the parenting orders as a different cause of action. That is, failures in respect of procedural fairness in respect of the contravention do not attach to the primary judge’s determination of the substantive proceedings between the parties.
The issue that remains is how the contravention should be dealt with, given the procedural unfairness that attended its dismissal.
In the absence of submissions as to the merits or significance of the contravention proceedings, in the context of the powers granted the court on hearing an appeal pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), there is good reason to affirm the dismissal.
The purpose of contravention proceedings has been established through authorities such as McClintock & Levier (2009) FLC 93-401, in simple terms, to be to cause compliance with orders affecting children. In this case there is no aspect of the orders made that invite such a need for enforcement, as the orders impose no obligation upon the mother to provide the children to the father. That is, there is nothing to be enforced in respect of the father. That circumstance points to the correctness of the dismissal of the contravention proceedings.
Accordingly, Ground 7 also fails.
Taking into account irrelevant considerations and failure to take into account relevant considerations
Ground 2 asserts that the primary judge took into account irrelevant considerations, while Ground 4 complains that the primary judge failed to take into account relevant considerations. They are in the following terms:
2.The learned trial judge erred in that his Honour took into account and placed weighed upon irrelevant matters:
(a)in taking into account the observations of [Dr L], and the opinion of [Dr L], in the manner that he did;
(b)further, in taking into account the observations of [Dr L] in circumstances where the witness did not conduct an examination of the children or the parties for the purposes of preparing a report for evidence in the proceedings, or at all;
(c)further, taking into account the observations of [Dr L] in preference to the observations of [Ms M] in the manner that he did;
(d)further, taking into account to the observations of [Dr L], where that evidence was affected by matters personal to the expert and his relationship with the Appellant and where the credit and weight to be attributed to [Dr L] was thereby diminished.
(e)in taking into account the assertions of violence that he did, and evidence related to those assertions;
(f)in taking into account evidence the child [X] said his father encouraged his violence and his absconding in the manner that he did.
…
4.The learned trial judge failed to take into account a material consideration, in that the learned trial judge failed to properly consider:
(a)evidence of family violence by the mother;
(b)and give weight to the harm caused by separation of the children and the father;
(c)the evidence that [X]’s behaviour was partly or wholly caused by matters other than encouragement of the Father;
(d)the risk that [X] was more likely to abscond with the mother than the father;
(e)and give weight to the opinion and maters set out in the report of [Ms M];
(f)and give weight to the evidence of [Dr L] in so far as it contains implicit assumptions as to communication and time with the Father being appropriate.
(g)the views of the child, [X].
(h)the appropriateness and adequacy of supervised time with the Father;
(i)evidence of mental health concerns on the part of the mother.
These grounds, and their particulars, present an amalgam of complaints that are not confined to either taking into account of the irrelevant, or the failure to take into account the relevant. They also incorporate complaints about the “manner” of taking into account, or the placing of weight upon evidence. Such complaints do not correspond with the grounds of review established by House. In Bugmy v The Queen (2013) 249 CLR 571, Gageler J observed that:
53.… The first and second [grounds of appeal] were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention [“one or more specific errors of principle or of fact” (at [51]), as set out in House] only if the asserted impropriety rose to the level of a failure to take those considerations into account. … The third [ground of appeal] was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category [“in the totality of the circumstances was unreasonable or plainly unjust” (at [51])].
To the extent that the grounds constitute criticisms as to whether the consideration was “proper” or as to weight, none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. For the reasons identified later in this judgment that deal with the grounds that specifically contended that the result is manifestly unjust or unreasonable, such a contention is not made out.
Grounds 2(a)–(d), at best, complain that the evidence of Dr L was irrelevant.
As noted above, X’s particular characteristics of autism spectrum disorder, an intellectual disability, a medical disorder, behavioural problems and delays in development were uncontroversial at the trial. Dr L was X’s treating psychiatrist, and well placed to give evidence of the significance and impact of those characteristics.
It was in this context that the father initially introduced in his case various reports prepared by Dr L. Under those circumstances, it is unclear why the evidence of Dr L should, at least in a general sense, be considered irrelevant, particularly where the characteristics of a child are a consideration pursuant to s 60CC(3)(g) of the Family Law Act 1975 (Cth) (“the Act”).
In terms of specific complaint about Dr L, the father, in his Summary of Argument, submitted that as opinion evidence it was required that there be adequate disclosure of how Dr L had reached various conclusions. It was asserted that there was a lack of clarity that would bear upon the admissibility of Dr L’s evidence (although the admission of the evidence was not a matter pursued in the appeal) and ultimately its weight. As noted, the weight assigned to a consideration arising out of the evidence is not a recognised basis for appeal.
Even if these challenges, questioning how Dr L came to various conclusions, are taken as going to the relevance of Dr L’s evidence rather than the weight attributed to it, they are not ultimately matters that render the evidence irrelevant.
Further, such submissions are contrary to the way the hearing was conducted because there the father himself sought to rely on reports of Dr L as being relevant to issues before the Court.
Despite the criticism of a lack of clarity, each of the aspects of Dr L’s evidence identified what Dr L relied upon in reaching his opinions, and implicitly drew on his expertise as a psychiatrist in a manner that would have satisfied the opinion rule as explained in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, even if such rule had application to the proceedings. Under those circumstances the assertion of irrelevance cannot be maintained.
If Grounds 2(a)–(d) are about weight, they do not reflect a recognised basis for appeal unless the result can be said to be unreasonable or plainly unjust. If the grounds are in truth an attack on the relevance of Dr L’s evidence, they are not made out. Grounds 2(a)–(d) should be dismissed.
Grounds 2(e) and 2(f) respectively assert that the primary judge took irrelevant matters into account by considering the assertions of violence perpetrated by the father and his encouragement of X to abscond from the mother and act violently towards her. These matters are identified as relevant considerations by ss 60CC(2)(b), 60CC(3)(f), (i) and (j), and 60CG(1) of the Act. They properly concerned matters central to the determination of the matter, as seen for example at [199] of the judgment:
199.Having regard to the gravity of the allegation that the father is so self-centred and indifferent to X’s wellbeing that he is willing to engage in the psychological abuse of turning X against his primary carer and causing him constant emotional turmoil, and also to put X’s life repeatedly at risk by encouraging him to run away, and also the fact that the nature of the allegation is such that that finding against the father will be effectively determinative of these proceedings, I am nevertheless very comfortably satisfied, and find, that X’s behaviour in assaulting the mother and absconding is a direct consequence of the father encouraging X to do so.
There the primary judge explained why those matters were important to the determination of what is in X’s best interest, identifying those matters as relevant considerations.
Grounds 2(e) and 2(f) should be dismissed.
Ground 4 asserted failures to take into account relevant considerations.
Ground 4(a) alleges a failure to take into account evidence of violence by the mother. Such was, however, specifically taken into account by the primary judge (at [15], [50]–[51], [53]–[54] and [57]).
Ground 4(b) is directed to consideration of the harm caused by separating the children from the father. If the challenge is whether the adverse impact on the children of separation from the father was taken into account by the primary judge, it clearly was, for example at [24]–[25], [164] and [167]. In considering that issue the primary judge observed:
164.For the reasons set out in detail above, while I have no doubt that both children will suffer deep emotional harm from being separated from the father.
(As per the original)
Accordingly, it can be seen that the primary judge gave specific consideration to this matter rather than failing to take it into account.
The matter identified at Ground 4(c), being evidence that X’s behaviour was caused or influenced by matters other than the father’s encouragement, was taken into account by the primary judge in weighing up the evidence available in relation to the likely causes of X’s behaviour (at [190]–[199]). Specifically, the primary judge considered the possibility posed by the father that the behaviour was attributable to deficiencies in the mother’s parenting, weighing against that proposition the evidence that favoured the conclusion that the father was the root cause. It is incorrect to assert that the issue was not considered.
At Ground 4(d), it was alleged that the primary judge failed to take into account the likelihood of X absconding from the mother as opposed to from the father. This cannot be sustained, as the risk of absconding from the mother, and its causes, were a central consideration of the judgment (see, for example at [190]–[201]). Indeed, the primary judge’s consideration was based on the notion that absconding was a feature of X’s conduct with the mother more so than the father.
Grounds 4(e) and 4(f) complain that inappropriate weight was given to the evidence of Ms M and Dr L, insofar as he recommended time with the father. There is nothing in the reasons or the father’s submissions that persuades us that the weight given to these matters led to a result that was unreasonable or plainly wrong. To the extent that the ground is a complaint that the evidence was not taken into account the judgment is replete with instances of the primary judge considering and evaluating the evidence of Ms M (see, for example, at [111]–[118] and [128]–[147]).
Ground 4(g) suggests the primary judge failed to properly consider X’s views. The primary judge gave specific consideration to X’s views (see, for example, at [154]–[157]). The primary judge specifically identified that X’s view was that he wished to live with the father. Again this cannot be considered to be a matter that the primary judge failed to take into account.
Ground 4(h) asserted a failure to properly consider the prospect of supervised time with the father. The primary judge gave specific consideration to this matter (at [142]–[143] and [202]), concluding that supervised time was not realistic in the long term, but also that it involved “a risk of destabilising X repeatedly, and of bringing about a reversion to his problematic behaviours” (at [202]). Again, it cannot be sustained that this matter was not taken into account.
Ground 4(i) asserted a failure to properly consider evidence of concerns as to the mother’s mental health. The primary judge refers to consideration of the evidence as to the mother’s mental health, having previously recited in the judgment the evidence of Ms M on the issue (at [193]). This was a matter carefully examined by the primary judge and cannot be described as a matter that was not taken into account.
These grounds do not succeed.
Mistake as to the facts
Ground 3 is in the following terms:
3.The learned trial judge erred on the facts and took into account an irrelevant consideration:
(a)In finding that the husband had engaged in family violence, and failing to find that the mother had engaged in family violence;
(b)In finding that violence was more likely to have occurred because the father could advance no explanation as to why there was a corroborative evidence in support of the mother’s case that violence did occur;
(c)In applying improper weight to evidence of hearsay representations set out in report notes of treating medical professional who were not the subject of cross-examination;
(d)In finding the father had encouraged violence and absconding behaviour on the part of the children and particularly [X].
(As per the original)
The father submitted under this ground that the primary judge erred in finding that the father had engaged in family violence, failing to find that the mother had done so as well and in finding that the father had encouraged X’s adverse behaviour. He contended that the primary judge misused aspects of the evidence to make these findings.
In support of the allegation that the primary judge mistook the facts the father submitted that the primary judge failed to apply the correct standard of proof. This appeared to be reliant upon the proposition that if the conclusions reached by the primary judge were wrong, then it demonstrated a legal error in a failure to apply the correct standard of proof. However, there is no such error here. The primary judge specifically directed himself to the correct standard of proof and to the application of s 140 of the Evidence Act 1995 (Cth) (at [40]).
The burden is on the father to demonstrate that the factual conclusions under challenge were wrong. In examining such a challenge, the plurality in Fox v Percy (2003) 214 CLR 118 described that the nature of an appeal by rehearing obliges the court to “conduct a real review of the trial” and that in doing so “[a]ppellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions’” (at [25]). The plurality accepted (at [25]) what had previously been said in Warren v Coombes (1979) 142 CLR 531 at 551, being that the appellate court is obliged to “give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it”.
The respect and weight afforded to the conclusion of the primary judge takes into account the advantages enjoyed by a primary judge.
Where the advantage enjoyed by the primary judge relied upon “impressions about the credibility and reliability of witnesses”, which are likely to have been affected by seeing or hearing the witnesses give evidence, then an appeal court will not interfere with the factual conclusion unless the findings are “glaringly improbable” or “contrary to compelling inferences” (Lee v Lee (2019) 266 CLR 129 (“Lee”) at [55]).
Where facts are established or undisputed an appeal court is in as good a position as the primary judge to decide on the proper inference to be drawn, and is under a duty to weigh the evidence and the conclusions for itself (Lee at [55]).
Although the ground is divided into four sub-grounds, it identifies only two findings under challenge, being that the father engaged in family violence, but failing to find that the mother had and secondly, that the father had encouraged violent and absconding behaviour by the children, particularly X.
The first challenge misrepresents the findings made by the primary judge at [57]. Rather than finding that the father has engaged in family violence and the mother had not, his Honour found that both parties had. The complaint must then be restricted to the finding that the father engaged in family violence. From [44]–[99] the primary judge drew from a suite of matters in arriving at this finding.
Those matters comprised the parties’ own testimony as to incidents of violence, which included partial admissions from each, the hearsay record of an admission made by the father to a doctor, along with an observation of injuries upon the mother recorded in clinical notes and the records of the mother’s many representations during the relationship to third parties. The primary judge assessed the descriptions and explanations of the incidents in the context of their disparate physical sizes.
To the extent that complaint is made about the father’s inability to explain corroborative evidence, being the admission purportedly made to the doctor, it is not apparent that the primary judge misused the father’s inability to explain the doctor’s evidence. Rather, what can be taken from the exchange (at [81]; Transcript 4 October 2019, p.293–294) in relation to this matter is that the primary judge afforded the father the opportunity to specifically address an issue of significance in the evidence by inviting him to comment upon the record made by Dr Q of the admission.
Central to the complaint regarding the fact finding was the father’s contention that the primary judge was unreasonable to consider that the father was the primary protagonist in an incident on 9 August 2014 that saw the mother strike the father prior to the father taking her down with an arm bar technique.
However, there is nothing inherently unreasonable in the primary judge accepting the mother’s description of her instigation of the physical altercation, but also assessing that the father’s conduct was much more significant than the mother’s actions. The primary judge, as identified above, relied upon a suite of factors carefully summarised at [57] of the judgment to conclude that the father’s conduct in that incident “was representative of his beliefs concerning his entitlements to control the mother”. The conclusion reached by the primary judge as to the comparative roles of the parties on this occasion has not been shown to be incorrect. It was open on the evidence for the primary judge to conclude in this manner, and it formed an appropriate conclusion on the evidence as presented to him.
The second finding challenged relates to the father’s responsibility for violence and absconding by the children. This formed a central aspect of the parenting determination, where the primary judge said:
21.Given these findings, the only possible way in which X can be made safe is if the father is not in a position to continue encouraging X to behave in this way. The only way to achieve that is for X to have no contact, or only limited supervised contact, with the father. The consequence of such an order would also be to make Y and the mother safe from X’s conduct.
The primary judge dealt with this central issue at [128]–[134] and [190]. He took into account not only the multiple assertions made by X that the father had encouraged such conduct, but also the expert assessment of X as being both easily influenced and lacking the sophistication to invent the father’s encouragement.
The father’s submissions focus on the primary judge’s reliance on the statements made by X that the father told him to run away and to hit his mother. The father points to a number of matters that he asserts mean that the primary judge should not have treated these matters as conclusive.
These encompassed the father’s denial of his responsibility, evidence that the father had on occasion told X not to run away, a lack of “direct evidence” of the father encouraging X to run away or hurt his mother (Father’s Summary of Argument filed 16 June 2021, paragraph 58(c)), X’s diagnosis of autism and intellectual disability, that some of X’s conduct predated separation, and prior instances of the mother not adequately managing X’s conduct.
The father further argues that the comments that X has made about the father encouraging his conduct are undermined by X’s running away, violence, and placement in the care of the State following the delivery of the judgment. These incidents occurring post judgment are submitted to buttress other evidence led at trial to undermine the primary judge’s conclusions as to the impact of the father’s behaviour on X. Inferentially it is an attack on the primary judge’s key conclusions as to unacceptable risk posed by the father.
The post judgment incidents are contained in the father’s proposed further evidence, where the father sought to adduce further evidence, both in support of the appeal, and in support of the further exercise of discretion should the appeal succeed. It is appropriate therefore to deal with the application to adduce further evidence at this stage.
The principles regarding admitting further evidence on appeal are set out in the majority judgment in CDJ v VAJ (1998) 197 CLR 172 at 246, where the nature, scope and purpose of the power to receive further evidence (now contained at s 35 of the FCFCOA Act) was identified:
109.One consideration in construing s 93A(2) is its remedial nature. Its 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. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
At [87]–[88] the majority identified the central place that consideration of the effect the proposed evidence may have in “determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order” will take in the Full Court’s consideration as to whether to admit the further evidence. In that context, it is not enough that further evidence is merely available, or useful, but rather, the majority considered that it must be understood that:
111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires 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. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
Where, as here, the further evidence relates to matters arising following a fundamental change in the children’s living arrangements, the majority observed that:
118.The 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.
What is required for the father to introduce the proposed evidence is that it be concluded that what has occurred post separation demonstrates that the original decision was wrong in that a different result would have ensued. Caution in reaching such a conclusion is sourced in part in the understanding both that children may take time to adjust to new circumstances occasioned by the delivery of final judgment, and that repetitive proceedings are, in themselves, unlikely to benefit the children the subject of the proceedings.
The reason put forward for the reception of the evidence was set out at paragraph 58(f) of the father’s Summary of Argument, being that X’s post judgment running away, violence, and subsequent placement into care, undermine the conclusion reached by the primary judge that the father’s conduct is causally related to X’s conduct.
However, whether described as a continuation, resumption, or acceleration of the behaviour by X, it is further behaviour on the spectrum of that which was assessed by the primary judge.
The fact of its continuation, resumption or acceleration does not demonstrate error in the primary judge’s factual conclusions as to the cause.
Those conclusions as to cause were consistent with the evidence presented to the primary judge. His Honour was entitled to place significant weight on what had been said by X about why he had been running away and engaging in aggressive behaviour in the mother’s home. He was entitled to rely upon the expert assessment of X’s characteristics that both made him vulnerable to the influence of the father in that manner, and that also pointed to his reliability as a witness to such influence. His Honour was entitled to do so despite other evidence that has been identified by the father that is suggestive of a different result. The strength of the evidence relied upon by the primary judge to reach the conclusion that the father’s encouragement was the cause of X’s risky conduct is sufficient to establish the correctness of those conclusions in the context of the other evidence.
Those conclusions are not shown to be wrong by X’s continued conduct post the making of the orders.
The circumstances do not justify the reception of the further evidence. The matters identified by the father do not point to the factual conclusions reached by the primary judge as to causation as being wrong.
The last matter relied upon was the weight to be given to hearsay representations in the notes of Dr Q, as referred to earlier. The primary judge found that the contemporaneous statements made to Dr Q supported the mother’s allegations of violence and gave weight to them accordingly. That is an entirely orthodox approach which does not bespeak error.
This ground has not been established and the application to adduce further evidence will be dismissed.
Error of law
Grounds 1(a) and 1(b) assert error of law in respect of the injunctions imposed upon the father in the following terms:
1. The learned trial judge acted upon a wrong principle:
(a) in making the injunction under s 68B which should not have been made at all, and he misdirected himself as to the scope of the discretion to issue an injunction,
(b)made an error of law in construing the power under s 68B in the manner his Honour did, and misconstrued the statute in making the injunctive order in the terms that his Honour did without mechanism for dissolution or variation;
…
These grounds are directed toward the injunctive orders at Orders 9–10, and the related self-described Personal Protection Order (“the PPO”). The orders provided:
9.Pursuant to section 68B of the Family Law Act 1975, [the father] born … be restrained by injunction from:
(a)contacting or attempting to contact [the mother] born … by any means, including through a third party, except only that he may seek to communicate with her in a respectful manner about the children solely pursuant to the email address provided by her pursuant to Order 6 above;
(b)contacting or attempting to contact [X] born …, by any means, including through a third party;
(c)contacting or attempting to contact [Y] born …, by any means, including through a third party;
(d)approaching or coming within 100 metres of [the mother] [X], or [Y],
(e)approaching or coming within 100 metres of any place where [the mother], [X], or [Y] might reside from time to time;
(f)approaching or coming within 100 metres of any place where [X] or [Y] might attend day care or school; and/or
(g)approaching or coming within 100 metres of any place where [the mother] might work from time to time.
10. Pursuant to section 68C the injunction in Order 9 above pursuant to section 68B of the Family Law Act 1975 (Cth), is for the personal protection of [the mother], [X], and [Y].
The PPO was expressed in the following terms:
[THE FATHER] you must follow the orders below. It is a criminal offence not to follow these orders. You could be arrested by police and charged. If you are convicted you could go to prison or be fined.
You could also be charged with other criminal offences. If you are convicted of these offences, you could receive a higher penalty.
Enforcement: This order may be enforced by a “Police Officer”
Police Officer means:
(a) member or special member of the Australian Federal Police; or
(b) a member, however described, of the police force of a State or Territory
You must follow these orders until: INDEFINITE FINAL ORDER – NO FINAL DATE
These Orders have been made to protect:
•[The mother] born …;
•[X] born …; and
•[Y] born …
You must follow these orders even if [the mother] born …, [X] born … and [Y] born … don’t want you to or tell you that you don’t need to. If you attempt to do any of the things below, it will still be a criminal offence.
Orders about behaviour
1.You must not do any of the following to [the mother] born …, [X] born … and [Y] born …, or anyone they have a domestic relationship with:
A) assault or threaten them;
B) stalk, harass or intimidate them; and
C)intentionally or recklessly destroy or damage any property that belongs to or is in the possession of [the mother] born …, [X] born … and [Y] born …
For example:
·You must not do any of these things in person, through another person, or through electronic communication and devices (for example, by phone, text messages, emails, Facebook or other social media, or GPS tracking).
·You must not do or say anything that may make [the mother] born …, [X] born … and [Y] born … feel frightened, or feel that you may harm them or damage their belongings in any way, including any jointly owned property and pets.
Orders about family law and parenting
6. You must not approach [the mother] born …, [X] born … and [Y] born … or contact them in any way, unless the contact is:
A) as ordered by this or another court about contact with child/ren; or
B)as agreed in writing between you and the parent(s) about contact with child/ren,
For example:
·You must not approach or contact [the mother] born …, [X] born … and [Y] born … in person or through electronic communication (for example, by phone, text messages, emails, or Facebook or other social media) or by any other means, including by asking someone else to contact them.
·If [the mother] born …, [X] born … and [Y] born … contacts you and you reply, no matter how many times they contact you or the reason for doing it, you will be breaching this order.
For (B): For family law matters, accredited means accredited under the Family Law Act 1975.
Orders about where you cannot go
9. You must not go within 100 metres of:
A)any place where [the mother] born …, [X] born … and [Y] born … live; or
B) any place where they work; or
C) any place where they go to school or child-care or after school activities; or
D) any place listed here:
For example:
·You are not allowed to go within 100 metres of the boundary of those places.
·If you have been living at this address and need to pick up any of your belongings, you can apply to the court for a Property Recovery Order or you can contact police.
If you would like to talk to someone about managing your emotions or stresses, help is available. Call:
·Men’s Referral Services on 1300 766 491
·Relationships Australia on 1300 364 277
·The Parent Line on 1300 1300 52
If you breach this order:
·You could go to prison or be fined.
·You could be charged with other criminal offences (for example, assault or intimidation), as well as the breach of this order. If convicted of these offences, you could receive a higher penalty.
If you have any questions about the order, you can contact:
·a solicitor
·Legal AID NSW on (02) 9219 5000
·Local Police Station and ask for the Domestic Violence Liaison Officer (if you are the protected person)
·LawAccess NSW on 1300 888 529 or Services on 131 450 or
Person affected: [THE FATHER]
Person protected: [the mother] born …, [X] born … and [Y] born …
Date and Duration of Order: INDEFINITE FINAL ORDER
Case number and Court:
Federal Circuit Court of Australia, Sydney [the primary judge]
SYC 2529 of 2017
(Emphasis in original)
The father argued that both the injunctions and the PPO are beyond power, falling outside s 68B of the Act by virtue of their indefinite length, extending them into the children’s adulthood, and by the lack of a mechanism for discharge.
The father’s position was that even if appellable error was not made out in respect of Orders 9–10 that the PPO should still be set aside. Such an outcome was ultimately not opposed by either the mother or the Independent Children’s Lawyer (“the ICL”), each accepting that the PPO was a nullity and should be quashed.
The PPO has difficulties which require it being set aside regardless of the view taken of the injunctive relief at Orders 9–10. It is helpful to deal with this aspect before turning to the injunctions themselves.
The first issue relates to the nature of the document. In the notations associated with the orders it is described as:
NOTES
A. A Form of this Personal Protection Order will be published with the Orders.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
(Emphasis in original)
This appeared to be an attempt the reproduce the injunctions contained at Order 9 and 10 in a form similar to orders made under State legislation.
Despite the description in the notes, the PPO does not reflect the various injunctions imposed at Orders 9–10 as it incorporates additional restraints upon the father. For example, the terms of the injunctions are directed to contacting or approaching the mother or children, whilst the PPO, apparently reflective of State orders, additionally deals with destruction of property, and assaults. It asserts that breach of the orders referred to in it, even those that go beyond the injunctions that were actually made by the trial judge, is a criminal offence.
Hence, whatever the PPO might be, it does not meet the description contained in the notations, and is not a document evidencing the terms of the injunctions.
The second issue raised by the father is the description borne by the PPO, where it states:
You must follow these orders until: INDEFINITE FINAL ORDER – NO FINAL DATE
(As per the original)
It is unclear what the PPO is meant to be. The PPO is expressed to be an order of the Court. It is expressed in a manner designed for it to be relied upon and enforced as an order of the Court by a relevant police force. It seems quite possible that his Honour considered that the parties or, possibly, the police might be assisted by a document that seems, on its face, to be a State protection or non-intervention order but that is no warrant for producing a document that confusing, mimics a State order when the Court is exercising federal jurisdiction and is frankly misleading. It is a course that should not be followed.
The terms of the injunction are properly recorded in the orders themselves and require no repetition in a further document, or further set of orders.
At face value the PPO is intended to be an operative and binding declaration of the rights between the parties. As such it fits within the notion of “judgment” at s 26 of the FCFCOA Act. It is amenable to correction.
The PPO fails to do what it is asserted to do in the notation, being to reflect the injunction contained in the body of the orders. Insofar as it was intended as some sort of machinery order designed to support the injunctions at Orders 9 and 10, it does not, and as accepted by all of the parties it should be set aside.
That leaves the arguments in respect of the injunctions themselves. A number of different arguments were pursued by the father, being that the injunctions are beyond power as they extend beyond the children becoming adults, that they are manifestly unreasonable to so exclude the father, and that they are manifestly unreasonable because they contain no inbuilt discharge mechanism.
The father’s oral submissions as the injunctions being manifestly unreasonable appeared to relate to the Summary of Argument, which contained a complaint that it was manifestly unreasonable for any injunction to be made.
That contention fails where, as here, the orders mandate no time for the children with the father, premised upon the finding of unacceptable risk occasioned by contact with the father. Those orders already exclude the father from coming into contact with the children. Where contact with the children carries with it an unacceptable risk, the injunctions are reasonably in aid of protection of the children and support of the orders. It cannot be said that they are not appropriate for the welfare of the children and they cannot readily be described as manifestly unreasonable or unjust, unless the underlying orders are likewise manifestly unreasonable or unjust.
To the extent that the complaint was reliant on the idea that there is not an inbuilt mechanism for amendment of the injunction, the mere lack of such a mechanism does not necessarily lead to manifest unreasonableness. Here the underlying orders make no provision for the father to commence time with the children. The injunctions operate in tandem with those underlying orders. Again, unless the underlying orders are manifestly unreasonable, the injunctions that support them should not be considered manifestly unreasonable.
It should also be observed that should there be a change of circumstances sufficient to allow the revisiting of the orders, and should those circumstances justify a change in the no time position, then they will also justify a change in the injunctions. The capacity to make further applications pursuant to the principles contained in Rice and Asplund (1979) FLC 90-725 in respect of the parenting arrangements means that there is an appropriate mechanism for the amendment of the injunctions in the event that the circumstances warrant it, whether or not such a mechanism is built into the orders.
The key issue in respect of the injunctions rests on the proposition that they will continue to operate beyond the children becoming adults, and so are beyond power. Absent the PPO, this contention relies upon the absence of an end point being specifically contained within the injunctions.
Although differing in their approach to the issue, there was a degree of commonality between the parties, to the extent that the father asserted that the injunctions could not extend into the adulthood of the children, and the mother and ICL contended that the injunctions do not extend into the children’s adulthood.
The mother and the ICL contend that the injunctions will automatically cease to operate on the children becoming adults by virtue of the operation of s 65H of the Act, which relevantly provides that parenting orders end on a child turning 18. This contention is then reliant upon s 68B injunctions being characterised as parenting orders pursuant to s 64B.
Although in defining a parenting order, s 64B(2)(i) includes orders in relation to “any aspect of the care, welfare or development of the child”, and although s 68B conditions the power to grant such injunctions on whether the court considers it “appropriate for the welfare of the child”, authority has distinguished between s 68B orders and parenting orders, and in particular, determined that s 68B is informed by the best interests of the child, but not governed by the paramountcy principle. This operates as a sharp distinction between s 68B injunctions and parenting orders, pointing away from the application of s 65H.
In Flanagan and Handcock (2001) FLC 93-074, Kay and Holden JJ identified that the primary judge’s indication that the paramountcy principle applied to s 68B was incorrect, although the issue was not expressly subject to a ground of appeal in the case (at [18]). Justice Finn expressed some doubt that the application of the paramountcy principle to s 68B was legally incorrect, emphasising the uncertain state of authority on the question (at [48]–[53]).
In EJK v TSL (2006) FLC 93-287, Holden, Coleman and Boland JJ observed:
52.Under the present legislation, in contrast to the Act prior to the introduction of the Family Law Reform Act 1995 (Cth) (“the Reform Act”), not all orders made under Part VII are subject to the “best interests” test, for example, the power to make orders in respect of child maintenance and/or injunctions concerning a child (see Bennett v Bennett (2001) FLC 93-088 and Flanagan and Handcock (2001) FLC 93-074, and in the High Court S258/2000).
In Bennett v Bennett (2001) FLC 93-088, Ellis, Finn and Guest JJ drew a distinction between the power to grant a s 68B injunction and the power to make a parenting order, with the Full Court there observing that:
30.… [T]he current power in s 68B to grant an injunction in relation to a child is not subject to the express legislative requirement that the court must regard “the best interests of the child as the paramount consideration”, and in this regard is to be contrasted with the powers, for example in s 65E to make a parenting order, or in s 67ZC to make an order in relation to the welfare of a child.
It was not argued in this appeal that such long-standing authority should be rejected, and accordingly it should be accepted that an injunction made under s 68B of the Act is not a “parenting order” as defined in s 64B of that Act.
The issue then remains as to whether the injunctions, absent the application of s 65H, have the ongoing impermissible effect as argued by the father.
Although the injunctions are not expressed as specifically ending on the children each attaining their adulthood, there is good reason to consider that such an effect should be necessarily implied in construing the orders.
In Anderson v Hassett [2007] NSWSC 1310 at [11]–[15], Brereton J, in considering the obligations imposed by orders, observed that:
11.… [I]t is permissible to resort to its context, for example any reasons for judgment … and in particular the other orders made at the same time.
Noting that the proper construction of orders is a question of law, Basten JA in Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 at [64] set out the following approach:
64. In order to construe an order, a court should:
(a) identify the statutory power under which the order was made (to avoid a construction leading to invalidity);
(b) address the language used, to identify a plain meaning if one is available;
(c) if latent ambiguity is alleged, refer to the reasons for judgment and the application to which the order responded;
(d) in the event of ambiguity (or other uncertainty), not resolved by reference to the reasons for judgment and the terms of the application, look to the submissions and (possibly) other material before the judicial officer on the application.
The s 68B orders are here made in respect of the children the subject of the parenting orders and, consequentially their mother. They are made in aid of the orders that provide for no contact with the father. The parenting orders that the injunctions are in aid of will cease to operate on the children becoming adult, pursuant to s 65H of the Act. The necessary implication is that the s 68B orders, made for the welfare of the children, and made in aid of the parenting orders, also lapse in the same manner.
It is these matters that set out the relevant context for understanding the duration of the injunctive orders. That context points to the cessation of the injunctions when the children become adults. That conclusion is fortified by consideration of avoiding a construction that leads to invalidity. Here there is a strong argument that the extension of the injunctive relief into the adulthood of the children ranges beyond the power conferred by s 68B of the Act. The corollary is that, where available, a construction should be preferred that avoids such extension. Consistent with the context identified above, that construction is one that relies upon a necessary implication that the injunctions will not continue indefinitely, but will lapse on the ending of the parenting orders that they support.
Accordingly, the injunctions are not beyond power.
Manifestly unjust or unreasonable
As identified above, the manifestly unjust ground is concerned with the result being outside the realm of the proper exercise of discretion on the facts found.
Grounds 1(c) and 5 appear to be directed to this basis for review. To the extent that Ground 5(a) also asserts error of fact such issues are dealt with in response to the other grounds that also allege error of fact. Grounds 1(c) and 5 variously attack the judgment on the basis of its “balancing” of considerations, or the judgment being “plainly unreasonable or unjust.” Of those complaints, it is only the last that directly attracts the ground. The balance of those grounds do not enliven appellate review insofar as they are criticisms of weight or balance unless they are understood as particulars of an overall complaint of manifest injustice in the outcome that they contribute to appellate scrutiny.
In submitting that the outcome is manifestly unjust, the father emphasised that the outcome is at the extreme end of the spectrum, in that it ends the relationship between the father and the children, providing for no time, and preventing any contact. This result comes in the context that the primary judge found that the loss of the relationships between the father and the children would be a “terrible loss” to the children, and productive of suffering for them (at [24]).
However, in accepting this loss, and acknowledging the impact of no time orders upon the children, the primary judge also identified that the father poses an unacceptable risk of harm, through his previous resorts to family violence, but more prominently, in his encouragement of the developmentally vulnerable X to assault the mother, his primary carer, and to run away from her in circumstances that place X in significant danger. In summary the primary judge considered that:
199. Having regard to the gravity of the allegation that the father is so self-centred and indifferent to X’s wellbeing that he is willing to engage in the psychological abuse of turning X against his primary carer and causing him constant emotional turmoil, and also to put X’s life repeatedly at risk by encouraging him to run away, and also the fact that the nature of the allegation is such that that finding against the father will be effectively determinative of these proceedings, I am nevertheless very comfortably satisfied, and find, that X’s behaviour in assaulting the mother and absconding is a direct consequence of the father encouraging X to do so.
That is, on the facts as found by his Honour, the primary judge reasonably concluded that the father posed a serious risk of harm, caused by psychological abuse and life threatening in its potential consequences.
Remembering that the inquiry is not as to what the appeal court would do in the same position, but rather whether the outcome is within the broad discretionary range accorded the primary judge, the matters identified by the primary judge (of which this is an incomplete extract) explain why it is that the relationship with the father was to be brought to an end. It is within the realm of the primary judge to emphasise the protection of the children from harm. Such an emphasis was recognised by the primary judge as consistent with the priority given to protection from harm in the Act (at [149]). Given the nature of the risk of harm identified by the primary judge, it cannot simply be concluded that orders removing the father from the children’s lives were beyond the proper exercise of discretion.
To the extent that these grounds together rely upon the orders being unreasonable or manifestly unjust, they are not made out. To the extent that they merely assert an error in balance they do not enliven the power of the appeal court to set aside or vary, and do not succeed.
Contingent grounds
The father pursued Grounds 8 and 9, relating to property orders, but explicitly only in the event that the parenting orders were set aside on appeal. They were not and accordingly Grounds 8 and 9 are no longer pursued and are dismissed.
THE CROSS-APPEAL
The mother’s cross-appeal related only to a single aspect of the property orders, being the mechanism by which the father was to receive a cash payment of approximately $5,000 as part of the property settlement.
Given that the father’s prosecution of an appeal in relation to property was contingent upon success in the parenting proceedings, on their dismissal he makes no challenge to the property orders, the cross-appeal in relation to the mechanisms takes place absent any party challenging the substantive determination of the property case.
The orders made by the primary judge required the mother to sell real estate, owned exclusively by her, to realise $5,000 to pay the father in satisfaction of his share of the net assets, without giving her the initial opportunity to raise the cash in some other way than by sale of the property. The mother contended the primary judge erred by failing to order the sale of the property only in default of her voluntary payment of the father from some other source.
During the appeal the father, accepting that such orders could be made in the re-exercise of discretion, indicated that he did not oppose such an order being made, provided that the orders allowed for a revaluation of the property. As was observed at the appeal, such an additional mechanism for further valuation is a recipe for ongoing litigation. It was also not supported by evidence suggestive of any significant change in value or other reason to justify such an addition.
The cross-appeal may be readily acceded to. The requirement to compel the sale of the property absent default is manifestly unreasonable. It is a matter in which the appeal court should re exercise the discretion insofar as it relates to the mechanisms dealing with the fulfilment of the substantive property adjustment orders for benefit of the father.
Subject to the determination of costs below, on the re-exercise of discretion substitute orders should be made like those proposed by the mother. The father did not contend that such were inappropriate to achieve the purpose intended by the mother.
COSTS
The starting point pursuant to s 117 of the Act is that each party bear his or her own costs, subject to circumstances justifying a departure from that approach.
Both of the parties pointed to circumstances of financial hardship.
These circumstances speak against an order for costs being made insofar as they relate to the parenting proceedings.
Although the costs incurred by the ICL may be considered minor ($1,900 with an additional $100 in disbursements), particularly where, as here, preparation for the appeal took five days, in addition to the appearances in relation to the appeal, the ICL conceded that the parties’ payment of such costs would be likely to cause hardship. Accepting this, pursuant to s 117(4)(b), an order must not be made for the ICL’s costs.
Despite the financial difficulties faced by the parties, a different approach should be taken to the cross-appeal.
The cross-appeal was conducted in circumstances where the error was apparent, and where the mother sought to resolve the matter without resort to cross-appeal as early as 25 September 2020. The father was unreasonably not amenable to such resolution, necessitating the cross-appeal. This speaks strongly in favour of an order that a portion of the mother’s costs be met by the father.
Given that the cross-appeal played a lesser part in the appeal process than the parenting matters, where the respondent seeks total costs in the sum of $23,019.41, it is appropriate that a lesser proportion be fixed, in a sum of approximately $5,000.
The mother urged that any such order made in her favour be offset against the amount that she is due to pay the father pursuant to the property adjustment orders. This is a practical and sensible mechanism that reduces the prospect of further dispute between, or expense incurred by the parties.
Pursuant to the orders to be made, the mother is due to pay $4,934 to the father to complete the property settlement. In aid of ensuring all matters are resolved between the parties, it is appropriate that the approximate award of $5,000 be fixed in the precise sum of $4,934 and offset against the amount to be paid by the mother to the father under the property adjustment orders.
Given the above order for the payment of costs, no costs certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) can be given.
Impact of costs orders on the property orders
The costs order against the father will impact the orders for the re-exercise of discretion in relation to the payment of a lump sum to the father, rendering such orders otiose as they offset the obligation to pay the father. Similarly the orders for the sale of the property in default are also rendered otiose. These orders will be set aside.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Gill. Associate:
Dated: 15 December 2021
16
13
0