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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hedlund & Hedlund [2021] FedCFamC1A 84
Case
[2021] FedCFamC1A 84
Decision Date
CaseChat Overview and Summary
In the matter of Hedlund & Hedlund, the father has applied for additional evidence to be considered in the appeal, to which the mother has responded. The primary concern in the father's evidence is that the eldest child has previously run away and is currently under the care of the State welfare authority due to escalating behavior following the court orders. The case involves a dispute between the father and mother over the care and custody of their two children, who both have special needs. The key issue at the trial was the cause of the eldest child's behavior and whether the mother was unable to manage the child or if the father was responsible for encouraging the child's behavior.
The legal issues before the court were whether the primary judge made an error of law, took into account irrelevant considerations, failed to consider relevant considerations, misconstrued the material facts, or made a manifestly unjust decision. The father's grounds of appeal included complaints about the weight placed on certain evidence and the manner in which it was considered by the primary judge. However, these complaints did not correspond with the established grounds of review set out in House v The King.
The court found that the father's grounds of appeal did not meet the required standards for challenging the primary judge's discretionary judgment. The court noted that the father needed to establish that the result could be no proper exercise of the discretion, rather than simply coming to a different conclusion. The court concluded that the father had failed to meet this burden of proof, and therefore, the appeal was dismissed. The final orders of the court will reflect this outcome and any other relevant decisions made during the course of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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])].