Hillsworth & Kantawong
[2024] FedCFamC1A 22
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hillsworth & Kantawong [2024] FedCFamC1A 22
Appeal from: Hillsworth & Kantawong [2023] FedCFamC1F 762 Appeal number: NAA 274 of 2023 File number: SYC 1826 of 2019 Judgment of: HARTNETT, JARRETT AND STRUM JJ Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – APPEAL – CHILDREN – Where the appellant father appeals orders made for the respondent mother to have sole parental responsibility and that the child live with her and she have leave to relocate the child with her from Australia to Country B – Where the appellant appeals on grounds relating to failure to provide reasons and complaints as to weight – Where the judgment is a discretionary judgment – Discussion of authorities relating to appeals from discretionary judgments – Discussion of authorities relating to failure to provide reasons – Where the primary judge is not required to mention every fact or argument in her Reasons for Judgment – Where the appellant sought leave to amend his Notice of Appeal and add an additional ground of appeal at the hearing – Where the additional ground of appeal has no merit – Leave to amend Notice of Appeal refused – Appeal dismissed – No order for costs sought. Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CC(3)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) Pt IV
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.10(1), 13.23(3), 13.53(2)(a)
Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Chapman v Chapman [1954] AC 429; [1954] UKHL 1
DJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gregory R Ball Pty Ltd v Stead CA (1993) 9 NSWCCR 148
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hamish & MacPherson [2023] FedCFamC1A 74
Hillsworth & Kantawong [2023] FedCFamC1F 762
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Keighley & Keighley [2023] FedCFamC1A 146
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Marsden & Winch (2013) FLC 93-560; [2013] FamCAF 177
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pandya & Pandya [2023] FedCFamC1A 85
Perlman v Perlman (1984) 155 CLR 474; [1984] HCA 4
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Sun Alliance Insurance Ltd v Massoud [1989] VR 8; [1989] VicRp 2
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 104 Date of hearing: 6 December 2023 Place: Sydney Counsel for the Appellant: Mr Blank Solicitor for the Appellant: Single Law Counsel for the Respondent: Mr Reeves Solicitor for the Respondent: Phillip A Wilkins & Associates Counsel for the Independent Children’s Lawyer: Ms Shea Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
NAA 274 of 2023
SYC 1826 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HILLSWORTH
Appellant
AND: MS KANTAWONG
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARTNETT, JARRETT AND STRUM JJ
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The date “16 December 2023” in Order 4 of the Orders made 5 September 2023 be deleted and replaced with the date “13 April 2024”.
3.The date “15 December 2023” in Order 11 of the Orders made 5 September 2023 be deleted and replaced with the date “12 April 2024”.
4.There be no orders as to costs.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillsworth & Kantawong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT, JARRETT AND STRUM JJ:
INTRODUCTION
The appellant father (“the appellant”) appeals from orders made by the primary judge on 5 September 2023, pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) which, inter alia, provided that: the respondent mother (“the respondent”) have sole parental responsibility for the child of their relationship, born in 2017 and aged 6 years at trial; that the child live with her; and that she have leave to relocate the child with her from Australia to Country B.
The Notice of Appeal, which is poorly drawn, contains two grounds of appeal: in summary, a challenge to the adequacy of the primary judge’s reasons and a challenge to the primary judge’s attribution of weight.
In the course of the hearing of the appeal, the appellant sought leave to amend his Notice of Appeal to add a third ground of appeal, namely, a failure to take into account a material consideration. A proposed amended Notice of Appeal incorporating this ground was tendered and marked ‘Exhibit A-1’. We indicated that we would consider whether or not to grant leave together with our consideration of the other grounds of appeal.
LEGAL PRINCIPLES
The principles governing appeals from discretionary judgments, such as that the subject of this appeal, are well settled. In House v The King (1936) 55 CLR 499 at 504-505, the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Norbis v Norbis (1986) 161 CLR 513 at 517, 518, 535, 539-540, the High Court reaffirmed that it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. At 518-519, Mason and Deane JJ said:
If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
BACKGROUND
The respondent is a Country B national who does not have a visa which permits her to reside permanently in Australia.
Final orders were made by consent in January 2020 (“2020 Orders”) which provided that, if the respondent paid a bond of $7,000 to the appellant within 60 days, she would be permitted to relocate the child with her to Country B. She did not pay the bond. Further, between about March–December 2020, the respondent did not see or spend time with the child and did not contact the appellant.
As we consider further below, the primary judge said (at [102]) that the respondent’s failure to avail herself of the orders she had obtained, in light of the advantages which she contended relocation would have for the child, together with her absence from the child’s life throughout most of 2020, and her failure to exercise all available time thereafter, raised questions about her parenting capacity.
The primary judge said (at [115]) that, at the conclusion of the trial, she “remained unable to make sense of the [respondent’s] decision to remain in Australia following the consent orders” made in January 2020. Her Honour found that the respondent did have the funds available to pay the bond. In relation to the respondent’s failure to exercise time with the child until the appellant initiated contact in December 2020, her Honour further said (at [115]): “The Court Child Expert found this baffling. I agree”.
The primary judge recorded that the respondent said she had difficulty accessing services and legal assistance and accepted that this may have been the case. Her Honour said at [116]:
… As identified by the Court Child Expert, there is a clear power imbalance as between the father and mother. This is not a criticism of the father. It is an acknowledgment of the fact that the mother in this case does not have significant proficiency in English, does not have the right to remain in the country permanently, does not have the right to earn income, is younger than the father and has no access to family supports in Australia. In that context her inaction while still curious is perhaps better understood.
At the time of the trial before the primary judge, pursuant to interim orders, the child lived with the appellant and spent time with the respondent each alternate weekend and one afternoon per week, although she had failed to exercise all such time available to her.
Each party sought sole parental responsibility for the child. The respondent sought that the child live with her and that she be at liberty to relocate with him to Country B. The appellant sought that the child live with him in Australia. At the end of the trial, the Independent Children’s Lawyer supported the respondent’s application, albeit acknowledging that “this was not a position without its own difficulties”.[1]
[1] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [4].
REASONS FOR JUDGMENT AT FIRST INSTANCE
The primary judge found (at [15]) that the presumption in favour of equal shared parental responsibility was rebutted by her later findings in relation to family violence by the appellant towards the respondent, together with poor communication and trust between them, geographical distance and past failures to shield the child from parental conflict, such that it was not in the child’s best interests that there be such an order.
Her Honour further said (at [16]) that, as the parents had minimal communication and effectively parented in parallel, it stood to reason that there should be an order for parental responsibility in favour of the parent with whom the child will primarily live.
Her Honour also earlier said (at [12]) that, in the particular circumstances of this case, it was not one in which it was possible to make orders either for equal time or for substantial and significant time and (at [13]) that it was a difficult case, as each parent’s proposal offered advantages and disadvantages for the child and there was no middle ground.
The primary judge noted (at [23]) the submission of the Independent Children’s Lawyer and accepted (at [117]) the evidence of the Court Child Expert that the child’s period of residence with the appellant, effectively since about March 2020, might, ironically, have had the effect that their relationship was stronger and better able to withstand the tyranny of distance. However, against that, her Honour noted (at [24]) that the practical impediments to the appellant travelling to Country B included financial capacity, and that this might very well be an issue for the respondent too, in facilitating travel to Australia. Nevertheless, her Honour adverted (at [26]) to the appellant’s evidence that he would do what he could to travel to Country B and spend as long as possible there, and not “walk away”, in the event of the child’s relocation.
Having found (at [28]) that the amount of time which the child would be able to spend with the parent with whom he did not live would be substantially reduced by each parent living in a different country, which was not a matter over which either the Court or, in the particular circumstances of the case, the parents had control, the primary judge turned to consider the factors which supported or militated against the competing proposals.
Her Honour accepted (at [30]) that the child had a good relationship with both parents, it having been described by the Court Child Expert as “close and familiar”, but observed (at [31]) that the case did not turn on which parent had a better or close relationship with the child.
The primary judge then turned to consider the parties’ competing allegations of family violence on the part of the other. Her Honour (at [35]) recorded that the appellant’s demeanour in the witness box was calm and polite and said that, had it not been for collateral information, she might “have inevitably concluded that the [appellant] was not prone to angry outbursts”. However, her Honour continued (at [36]) that the material which came into evidence touched upon his anger and aggression and was relevant, not only to her findings about family violence but also, more broadly, to questions of his parenting capacity. That material included medical records from March 2014 and November 2018; police records from July 2020, December 2021, January 2022, October 2022 and December 2022; and childcare and school records from December 2021 and November 2022, which the primary judge found (at [49]) demonstrated a pattern of mood dysregulation and anger management issues, including of recent origin.
The medical records from March 2014, which the primary judge considered at [39]–[42], disclosed that the appellant sought mental health assistance then for depressive symptoms and thoughts of aggression and self-harm; that he was considered to have borderline personality traits, as well as anti-social and narcissistic traits; and that he reported having “explosive moods”, holding grudges, having suicidal ideation, believing that he was “being watched all the time, going to be attacked”, and having “objects to use as weapons placed around the house - at front and back doors and near bed”. Further, in a file note of K Health Centre dated 31 March 2014 of a telephone conversation with the appellant, for the purposes of an assessment, it was reported that he was irritable and became verbally abusive and, when asked what supports he needed, he responded: “if you gave a gun I could tell you what I need, f…k me” (as per the original) and then hung up.
The medical records from 2018, which the primary judge considered at [43]–[47], disclosed that the appellant was referred at some stage for mental health treatment by the Q Mental Health Service Team regarding urgent suicidal behaviours and major depressive disorder symptoms but that, after triage and consultation with a nurse, he elected not to follow-up with any treatment.
In November 2018, the appellant reported to his general medical practitioner that he was having “a lot of problems with [his] partner”; stated that he “could kill wife (drown her)”; and spoke of self-harm.[2] He spoke with a clinical psychologist at the L Mental Health Service who recorded him as having a “huge discrepancy in presentation”.[3] He was referred there by his general medical practitioner for mental health admission for “urgent management of suicidal and harming others, high risk behaviours and prior suicidal attempts, diagnosis of major depressive disorder” (as per the original).[4] The records of that mental health contact centre referred to the earlier involvement of K Health Centre in 2014, noting that he was “allocated to team for aggressive thoughts and intent, suicide ideation every day, no plan, paranoid ideation, has objects to use as weapons around house”.[5] Further, there was reference to the appellant’s past history of violence, his acknowledged personality problems and his reports of “chronic interpersonal difficulties with family and friends … poor impulse/emotional control … hopelessness/lack of life direction [and] great difficulty in controlling anger when ‘people are stupid’ or ‘out to upset me’ …”.[6]
[2] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [44].
[3] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [45].
[4] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [46].
[5] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [46].
[6] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [47].
Police records from July 2020 recorded that the appellant threatened to injure a contractor who attended at his home to conduct scheduled maintenance (at [50]).
Police records from January 2022 referred to an altercation between the parents in December 2021, at the child’s childcare centre, which the primary judge (at [52]) described as a “physical tussle” involving the child. However, those records also stated that the police were of the belief that the appellant “was attempting to leverage the incident in his favour for upcoming family law court [sic] hearings” (at [55]). Further, as a result of this incident, the appellant was banned from attendance at the childcare centre (at [57]). The primary judge said the incident reflected poorly on both parents (at [53]) and that they both acted in a manner which was not child focused (at [58]). However, the primary judge was unable to find that one party should accept greater blame for the incident than the other and did not consider that the incident, by itself, was indicative of a pattern of violent conduct by either party (at [58]). Rather, her Honour found that it demonstrated an inability to act appropriately in circumstances which required restraint. Nevertheless, her Honour found it significant that the childcare centre banned the father from attendance, for whatever period (at [59]).
However, that incident, when taken together with another incident in November 2022, led the primary judge to find that the appellant had a demonstrated capacity to escalate events involving the child in a manner which lacked foresight about the consequences for the child (at [60]).
The incident in November 2022, for which the appellant subsequently apologised, related to him ringing the child’s school in a manner that was described as “very irate that the mum was in breach of court orders seeing [the child] at school” (at [61]). The primary judge said in this regard (at [62]):
The description of the father as “very irate” accords with the observation of the Court Child Expert – that while the father was polite and cooperative he also presented in the interview at times as “strident and vehement”.
Further police records, which were tendered, were described by the primary judge (at [63]) as suggesting that the appellant’s issues with anger had led to confrontations with a range of people.
Police records from October 2022 recorded an incident that occurred between the appellant and a neighbour in their apartment complex (at [64]). The appellant was recorded as having grabbed his neighbour by his clothing, in the course of an argument, and having pulled the neighbour towards him. The neighbour advised the police that there had been several unreported incidents where the appellant had been abusive towards him and his adult daughter. The primary judge said (at [65]):
Against the background of the father’s historical vulnerabilities with anger management it is apparent that he is vulnerable to episodes such as the above. The risk for the child is both that he may be witness to such incidents which may be anxiety provoking or dangerous but also demonstrate poor role modelling. The Court Child Expert also expressed the view that as [the child] gets older he may pose more challenging behaviour for his father.
Police records from December 2022 also recorded another incident that occurred between the appellant and a different neighbour. The primary judge said (at [69]) that the record suggested that “a stand off occurred” between the appellant and his neighbour on the shared driveway of their complex and that an argument ensued, in the course of which the appellant gesticulated with his hands, sounded his horn and said to the neighbour: “For fuck sake … Can you move your car”. A heated exchange followed, where they called each other names. The primary judge said (at [70]) that the police record raised “the same concerns” and observed that both this and the previous incident with a neighbour were sufficiently serious to warrant police being contacted.
Lastly, the primary judge referred (at [71]), albeit without comment, to recent police records of further police involvement with the appellant in April 2023, less than two months prior to the commencement of the trial before her Honour, regarding a verbal altercation in public between his nephew and him, in the course of which both parties “exchanged words as they have been having ongoing issues”.
The primary judge then turned to consider whether the father had engaged in corporal punishment of the child, namely, smacking, as the respondent alleged that the child had reported to her. The appellant denied smacking the child but deposed to “tapping” him on the bottom, when he was smaller (at [66]). The child told the Court Child Expert that the appellant “smacks him sometimes, but that it is not all that hard” (at [67]). The point at which a tap becomes a smack brings to mind the dicta of Wilson J in Perlman v Perlman (1984) 155 CLR 474 at 500, where his Honour recalled “the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night”: per Lord Simonds L.C., in Chapman v Chapman [1954] AC 429 at 445-446.
The primary judge referred (at [68]) to the conclusion of the Court Child Expert that “there is an impression that [the appellant] may struggle, at times, with setting limits and has continued to resort to physical punishment”. Whilst the expert specifically recommended that the appellant undertake a parenting course, there was no evidence he had done so, and the primary judge expressed concern that he might experience challenges with the child’s discipline as the child became older.
The primary judge then turned to consider (at [72]–[74]) whether the appellant spoke poorly of the respondent, saying that, whilst not indicative of violence or aggression, there was evidence which demonstrated a lack of appropriate restraint on his part in dealing with issues relating to the child and the respondent. This included an email to the child’s school in November 2022 in which, her Honour said, the appellant communicated with the school about the respondent in a manner which may have caused it to think poorly of her, and also spoke disparagingly about her parenting capacity. Further, her Honour said that, as recently as March 2023, the appellant continued to communicate with the school in a manner which denigrated the respondent, including by saying that he knew her claims to be “lies and rubbish” and that she was only trying to discredit him (at [74]).
In relation to family violence allegations, after referring to an incident or incidents in late 2018 alleged by the respondent, the primary judge said:
79It seems plain that the father, at least at one point, accepted that he had made a serious threat of violence to the mother. In the first Court Child Expert report at [63] the expert recorded: “He acknowledged that he has threatened to kill her (and himself) during an argument, but indicated that this was a highly unusual event brought about by great stress at the time”.
80The father in cross-examination said he had no memory of having said what he did but accepted that the fact that it was recorded means it is likely that he did.
Her Honour recorded (at [81]) that, even on the appellant’s evidence, he locked the door so that the respondent could not leave and the police attended. Her Honour continued:
Even if I were to accept the father’s evidence that he was concerned about the mother being in the rain he was not entitled to restrain the mother by locking her in the house. He now accepts this.
In relation to another incident, in early 2019, in which the respondent reported to the police that, in the course of an argument, the appellant punched a plastic bag that she was holding and then grabbed her by the throat and squeezed, causing her pain, which he denied, the primary judge said (at [84]):
The father’s denials need to be approached with caution because when counsel for the mother cross-examined the father about whether he had threatened to kill the mother he denied it and when asked whether he had trouble managing his emotions he denied it. The objective evidence suggests that both these answers were untrue.
The primary judge found (at [85]), on the basis of the evidence of the parties, when seen in light of the collateral documents, that it was more probable than not that the appellant did engage in the conduct the respondent described. Further, her Honour said (at [86]) that it was apparent the appellant had been experiencing mental health vulnerabilities at that time and the records of his interactions with the workers were consistent with the respondent’s account. Of relevance was what the appellant told the forensic and clinical psychologist about inappropriate intense anger or difficulty controlling anger, including that he becomes “cranky” and that his ability to control his anger “depends upon the anger” (at [88]).
The primary judge said (at [89]) that it was clear that in 2019 the appellant was very engaged with professionals and programs but that there was very little evidence about any continued or recent engagement with mental health professionals. The appellant conceded in cross-examination that he had not seen a psychiatrist since 2019.
The primary judge considered (at [90]–[93]) the appellant’s allegations of family violence by the respondent. It was an agreed fact that, in March 2019, she attended at his home unannounced, wanting to collect the child and take him to Country B. He did not permit her to enter, and she kicked his door. Her Honour expressed concern about this incident, because it demonstrated that neither party was able to de-escalate the situation to prevent the child from being exposed to “what must have been a frightening experience”.[7] Her Honour said that whilst the conduct of the respondent, who presented as highly distressed, was not child focused, she did not accept that it would be regarded as “an incident of family violence and certainly not indicative of a pattern of conduct on her part. It was a misguided desperate attempt to see her child”.[8] Whilst the appellant said in cross-examination that the child would not have known his mother was there, her Honour did not accept that evidence and said that there were several factors, which she enumerated (at [93]), which made it inconceivable that the child was unaware of the respondent’s presence. In relation to this incident, her Honour concluded:
Both parents must appreciate that their own conduct that day exposed [the child] to distressing banging and sobbing by his mother which could not have been in his interests.
[7] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [92].
[8] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [92].
At [94]–[97] and [102]–[105], the primary judge considered each party’s parenting capacity. In relation to the appellant, her Honour found that the child appeared to be performing well at school and that there was no evidence to suggest that his physical and emotional needs were not being met in his household. However, her Honour referred to the opinion of the Court Child Expert that the appellant may struggle at times with setting limits, including by his use of physical punishment, and said that this approach, if not remedied, may pose a greater risk to the child in the future.
In the context of her consideration of the appellant’s parenting capacity, the primary judge returned (at [98]–[101]) to the question of his mental health. Her Honour said that whether he had a specific mental health diagnosis was secondary to her examination of whether his conduct had a negative or potentially negative impact on his parenting capacity or created an issue of risk from the child’s perspective. Her Honour said:
100It is not the presence (or absence) of a diagnosed mental health condition which impacts on the father’s parenting capacity but rather the vulnerability which manifests in anger and aggression, as discussed in detail above. The Court Child Expert in her oral evidence, informed by material which had been tendered from police and health professionals, indicated that she was more concerned about the father’s potential vulnerabilities and their impact on [the child] as a consequence of the evidence.
101The Court Child Expert gave evidence that she was concerned that [the child] may be exposed to the mood instability in the father which may impact on the father’s interactions with others (in [the child’s] presence) or [the child] himself as he grows older. She also expressed the view that the father may model poor mechanisms for coping with stress and potentially lack insight about the impact of his own mood on others.
In relation to the respondent, the primary judge said that there were two significant issues which seemed, at least on their face, to raise questions about her parenting capacity and which were also relevant to her consideration of s 60CC(3) of the Act. These were, first, the respondent’s failure to avail herself of the final orders she had obtained in 2020, in light of the advantages which she contended a relocation would have for the child; and, secondly, her absence from the child’s life throughout most of that year, together with her failure both to contact the father during that time and to exercise all available time with the child thereafter.
In relation to the latter of those issues, the primary judge referred to the respondent’s evidence that she was having difficulty obtaining a grant of legal aid and did not appreciate that she could see the child, therefore focusing her efforts on obtaining legal assistance and representation (at [104]). Her Honour (at [116]) accepted that this might be the case, as there was “a clear power imbalance as between the father and mother”. Her Honour continued:
This is not a criticism of the father. It is an acknowledgement of the fact that the mother in this case does not have significant proficiency in English, does not have the right to remain in the country permanently, does not have the right to income, is younger than the father and has no access to family support in Australia. In that context her inaction while still curious is perhaps better understood.
As referred to briefly above, in relation to the former of those issues, her Honour relevantly said (at [115]):
At the conclusion of the hearing I remained unable to make sense of the mother’s decision to remain in Australia following the consent orders. I find that she did have the funds available to pay the bond. I find that she did not pay the bond. … The Court Child Expert found this baffling. I agree.
Her Honour was nevertheless satisfied that the parenting the child received from the respondent, during the time they spent together, was appropriate and that to the extent the father raised historical issues, they were generally about diet, and were not matters which the Court Child Expert concluded impacted on her parenting capacity (at [105]).
The primary judge then proceeded (at [106]–[107]) to compare and contrast the parties’ respective proposals:
106If [the child] remains living with the father then the biggest change will arise if the mother is unable to obtain a further visa or in the alternative returns to Country B to obtain work. In that case it is anticipated on the basis of the expert evidence that [the child] would miss seeing his mother with the regularity and frequency he currently enjoys. It is expected that he would have electronic communication with her and that his close relationship with the father would be of assistance to him in managing this loss. The Court Child Expert observed, in her written report, that this option may be the least disruptive for [the child].
107If [the child] moves to live with his mother in Country B this would be likely to be experienced as a more significant change for [the child]. The Court Child Expert in her oral evidence expressed the view that moving to live with his mother in Country B would be experienced by [the child] as a “big loss and a huge adjustment”. He would not only lose the regular frequent time with his father but also the friends at school and in the local community and the father’s family. In addition he would move from an English speaking country to a B speaking country where he presently has minimal language skills. It would be expected that he would be assisted in managing the loss of frequent time with his father by his close relationship with his mother and by electronic communication with his father.
Her Honour said (at [108]) that the determination about whether the child lived with the respondent in Country B or with the appellant in Australia required consideration of which arrangement was most likely to assist him to retain a relationship and spend time with both of his parents. Whilst it was submitted that, if the child accompanied the respondent to Country B, the appellant would not be able to enforce orders to spend time with him, her Honour referred (at [110], [112] and [113]) to the fact that the appellant knows where the homes of the respondent and her mother are located and that Country B is a party to the Convention on the Civil Aspects of International Child Abduction signed at the Hague, such that recourse could be had to Pt IV of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The primary judge said (at [113]) that the parties’ respective applications gave some indication of the value they saw to the child in spending time with the other parent. In the case of the appellant, her Honour observed that, if the respondent were living in Country B (implicitly, without the child), he made no specific proposal as to the time to be spent by the child with her. Her Honour said that, whilst the appellant generally proposed to fund one half of the cost of the respondent’s airfares to visit Australia (if she obtained a visa), he made no proposal that the child travel to Country B, where he was born, where his mother would be living and where the appellant had previously agreed he should live.
Her Honour observed (at [114]) that, in contrast, the respondent proposed at least six visits between the appellant and the child per year, in Country B and Australia. Her Honour found this proposal to be “considerably more generous and child focused” and that it acknowledged the nature and importance of the relationship between the child and his father. That said, however, on the evidence, her Honour doubted that either party would ever have the financial wherewithal to allow the appellant to exercise all the time the respondent was proposing.
The primary judge concluded (at [117]) that, given her findings about family violence and the appellant’s history of anger and impulse control issues, those issues, above all others, promoted the proposal that the child live primarily with the respondent. Her Honour also said that a secondary, but important, consideration, was the opinion of the Court Child Expert that, because the child had spent more time with the appellant, it might be more viable for him to maintain this relationship at a distance. Her Honour acknowledged that this proposal would pose challenges for the child, including missing the appellant and initial language difficulties and cultural adjustment. However, her Honour concluded that, in light of the Court Child Expert’s oral evidence about the material relating to the appellant’s history, the respondent’s proposal would provide the best opportunity for the child to be shielded from exposure from those behaviours.
In the circumstances, the primary judge ordered, inter alia, that the respondent have sole parental responsibility for the child, albeit in consultation with the appellant; that she be at liberty to relocate the child to Country B (no sooner than 16 December 2023); and that he thereafter live with her there. Her Honour further made orders for the child’s name to include the English first name by which he is known in Australia, as well as the appellant’s surname, and for him to spend additional time with the respondent, whilst he continued to live with the appellant, prior to their relocation. We note that the primary judge’s orders were made on 5 September 2023 and that this appeal was listed for hearing on 6 December 2023, approximately a fortnight prior to the date by which her Honour ordered that the respondent could relocate the child to Country B. At the conclusion of the hearing of the appeal, it was agreed that, if the appeal were dismissed, that date would need to be varied.
GROUNDS OF APPEAL
The Notice of Appeal filed on 3 October 2023 is, as we have observed above, poorly drawn. It is more akin to a preliminary summary of argument, than a Notice of Appeal properly drawn.
Rule 13.10(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that the grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission at any time up to and including the date fixed for filing of the summary of argument by the appellant.
The appellant’s summary of argument was filed, within time, on 10 November 2023. However, no amended Notice of Appeal was filed. The only amendment was, as we have indicated above, proposed in the course of the hearing of the appeal, when the appellant sought leave to amend his Notice of Appeal to add a third ground of appeal. We consider whether or not to grant leave to amend below, in our consideration of the merits of that proposed further ground of appeal.
Ground 1: Asserted failure to provide adequate reasons.
This ground merely reads: “Failure to provide adequate reasons on a point critical to the contest”. So drafted, simpliciter, it is not a proper ground of appeal. As we have adverted to above, the paragraphs which follow in the Notice of Appeal, are more akin to a preliminary summary of argument.
The appellant contends that an issue in the proceedings, inter alia, was whether the respondent’s allegations of family violence perpetrated by the appellant occurred and whether her allegations as to his parenting capacity were true. If so, it is contended that issues as to the respondent’s parenting capacity and/or her creating an unacceptable risk of harm to the child arose. This was in circumstances where she had the benefit of the 2020 Orders whereby, by payment of a bond, she could ensure the child lived with her and she was found by the primary judge to have had the money to pay the bond but did not do so, resulting in the child continuing to live with the appellant. In particular, the appellant submits this ought to have resulted in findings that either the respondent’s allegations were exaggerated or she had wilfully placed the child at risk by not paying the bond and thereby securing that the child live with her.
The appellant submits that the only observation made by the primary judge in this regard is that at [115], to which we have referred above at [10] and [46]. Accordingly, he submits that what was required of the primary judge on this issue was “at a minimum, to provide reasons which are adequate for the exercise of a facility to appeal, where such facility is available” [sic]. Whilst he concedes that the extent of reasons required will depend upon the particular case and the issues under consideration, he submits that “it is essential that the reasoning of the Trial Judge on a point which is critical to the contest between the parties be exposed”[9] and, to the extent that credit issues were involved, it was necessary to explain why it was that the evidence of a witness was accepted or rejected. In the circumstances, the appellant submits that the primary judge’s reasons at [115] were inadequate and her Honour erred in law.
[9] Appellant’s Summary of Argument and List of Authorities filed 10 November 2023, paragraph 15(ii).
This purported ground of appeal, to our minds, was not more successfully explicated by the appellant’s written summary of argument or his subsequent oral submissions.
In relation to a failure to give reasons, in Bennett & Bennett (1991) FLC 92-191 at 78,266, the Full Court of the Family Court adopted the following test, articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the Appeal Court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above-stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the Appeal Court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case is rejected.
It is well settled that it is not necessary for a judge who is exercising a discretion to detail each fact which he/she has found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference of a finding is sufficiently clear, see: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at 81,469. In particular, it is not necessary that a trial judge “mention every factor or argument relied on by the losing party as relevant to an issue”: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at 132. Further, it has been held that an appellate court will avoid an overly critical or pernickety analysis of a primary judge’s reasons (AMS v AIF (1999) 199 CLR 160 at 211 per Kirby J) and that appellate courts exist to remedy errors of law and miscarriages of justice, not to dot “Is” and cross “Ts” (Gregory R Ball Pty Ltd v Stead CA (1993) 9 NSWCCR 148 per Handley JA as quoted by Kirby J, above, at 131).
In Banks & Banks (2015) FLC 93-637, the Full Court said:
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
The appellant’s “case theory”,[10] to which this ground of appeal is directed, was that the respondent, on her own evidence as to his deficiencies, had thereby placed the child at risk. This, it was emotively contended at trial, was in order to use him as “leverage”, in order to “exploit” him into paying for her to obtain a permanent residency visa, as she sought.[11]
[10] Appellant’s Summary of Argument and List of Authorities filed 10 November 2023, paragraph 11.
[11] Appellant’s Summary of Argument and List of Authorities filed 10 November 2023, paragraph 11.
We consider that it is not open, in this case, to the appellant to approbate and reprobate, as he seeks to do. Having denied the respondent’s allegations against him, both of family violence and impaired parenting capacity, he could not use those allegations, in turn, to found an allegation that the respondent’s parenting capacity was therefore similarly or even more greatly impaired and/or that she thereby created an unacceptable risk of harm to the child. As the respondent correctly submits in her summary of argument, paradoxically, that would have required her Honour to find, on the appellant’s own case, that his care was inadequate. However, understandably, that was never part of his case.
In his Notice of Appeal, the appellant points to [115] of the primary judge’s reasons for judgment. In his summary of argument, he also refers to [117] thereof, to which we have referred at [16] and [50] above, and submits “this is an attempt by her Honour to avoid dealing with the question of the respondent’s parenting capacity”.[12] We disagree. The Independent Children’s Lawyer, correctly in our view, describes [117] as being “clearly a summary of her Honour’s reasoning”.[13] That this is so is manifest, not only the fact that it self-evidently forms part of her Honour’s conclusion (and appears under that heading), but also from her statements that, given her findings about family violence and about the appellant’s history of anger and impulse control issues, “it is this issue above all others which promotes the proposal that [the child] live primarily with the mother” (emphasis added) and that “the mother’s proposal would provide the best opportunity for [the child] to be shielded from exposure to these behaviours”.[14]
[12] Appellant’s Summary of Argument and List of Authorities filed 10 November 2023, paragraph 19.
[13] Independent Children’s Lawyer Summary of Argument and List of Authorities filed 29 November 2023, paragraph 25.
[14] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [117].
Under the rubric of the “mother’s parenting capacity” at [102]–[105], as well as under that of “any other issue” at [115]–[116], her Honour, whilst “unable to make sense of”,[15] and baffled by, the respondent’s decision to remain in Australia following the 2020 Orders, nevertheless accepted that, in relation to her inaction between January–December 2020, there was a clear power imbalance between the parties, such that, in that context, her inaction, while still curious, was perhaps better understood. Further, viewed in this context, contrary to the appellant’s submission referred to earlier in this paragraph, her Honour did deal with the question of the respondent’s parenting capacity and found (at [105]) the parenting the child receives from the respondent to be appropriate, notwithstanding her concerns.
[15] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [115].
The respondent also, correctly in our view, points to [102] of the primary judge’s reasons for judgement, where her Honour referred to there being “two significant issues which seemed, at least on their face, to raise questions about the mothers parenting capacity” (emphasis added), being her failure to avail herself of the 2020 Orders and her absence from the child’s life throughout most of that year, together with her failing to exercise all available time thereafter. As the respondent submits, through what is described as the “parenthetical reference”, by the words “at least on their face”,[16] her Honour makes it tolerably clear that, in her view, these issues did not, in fact, impugn the respondent’s parenting capacity.
[16] Respondent’s Summary of Argument and List of Authorities filed 23 November 2023, paragraph 9.
The primary judge clearly identified actual, and not hypothetical, deficiencies in each party’s parenting capacity. Her Honour also clearly weighed those deficiencies against the positive aspects of each party’s parenting capacity, as identified by her. Ultimately, having identified, compared and contrasted each party’s strengths and weaknesses, it is clear from her Honour’s reasons for judgement that she was more troubled by the weaknesses of the appellant (such as his capacity to escalate events, his vulnerabilities with anger management and impulse control issues, and his mood dysregulation), than those of the respondent (namely, her failure to avail herself of the 2020 Orders, thereby leaving the child in the appellant’s care, and to spend any or all time with the child thereafter). So distilled, and as the respondent submits, that the appellant’s thesis was given less weight than he had hoped is no basis for overturning the decision. Her Honour’s reasons for so doing are clearly ascertainable.
We also agree with the submission of the Independent Children’s Lawyer that, to the extent the appellant asserts that the primary judge failed to make certain findings (and to give reasons for not so doing), he has not complied with the requirements of r 13.23(3) of the Rules which requires that, if a party intends to challenge any findings of fact, that party’s summary of argument must:
(a)identify the error (including any failure to make a finding of fact); and
(b)identify the finding that the party contends should have been made; and
(c)state concisely why the finding, or failure to make a finding, is erroneous; and
(d)refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
The appellant’s summary of argument is manifestly deficient in regard to Ground 1.
When the primary judge’s reasons for judgement are read as a whole, rather than proverbially ‘cherry picked’, and analysed in the way we have done so above, her Honour’s process of reasoning, which led her to the conclusion that she reached, is clear. Accordingly, this ground of appeal has no merit and must fail.
Ground 2: Weight
The second ground of appeal, as drafted, is that: “Findings based on father’s parenting capacity [36] of the judgment miscarried as a result of her Honour placing too much weight on evidence of a particular kind and too little weight of evidence of the actual situation being considered”.
It is trite, but nevertheless apparently necessary, to state that it is not findings that miscarry, but the exercise of discretion, based upon findings.
The difficulty in challenging a primary judge’s attribution of weight on appeal is well settled. In Gronow v Gronow (1979) 144 CLR 513 at 519-520, Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In the absence of exclusion of relevant considerations or the admission of irrelevant considerations, an appellate court should not set aside an order made in the exercise of a judicial discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court at first instance. See Mallet v Mallet (1984) 156 CLR 605 at 614 per Gibbs CJ, citing with approval the statement of Latham CJ in Lovell v Lovell (1950) 81 CLR 513 at 519:
If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion … unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.
See also Keighley & Keighley [2023] FedCFamC1A 146 at [98]–[104]; Pandya & Pandya [2023] FedCFamC1A 85 at [48], [57] and [62]–[63]; and Hamish & MacPherson [2023] FedCFamC1A 74 at [27]–[29].
The weight or importance given to evidence is a matter quintessentially for the primary judge, unless an appellant can show that the judge was “plainly wrong”: CDJ v VAJ (No 1) (1998) 197 CLR 172 at 230-231 per Kirby J.
The appellant contends that the findings made by the primary judge about his parenting capacity and potential risk to the child at [36] and [117] were made in circumstances where her Honour “placed too much weight on certain evidence” and “failed to consider or place sufficient weight on other relevant evidence”.[17]
[17] Appellant’s Notice of Appeal filed 3 October 2023, paragraphs 2.1-2.2.
However, in neither of those paragraphs did her Honour make findings of fact. At [36], her Honour said that the material which came into evidence touched upon the appellant’s anger and aggression and was relevant, not only to her findings about family violence but also, more broadly, to questions of his parenting capacity. At [117], her Honour concluded that, given her (earlier) findings about family violence and the appellant’s history of anger and impulse control issues, it was those issues, above all others, which promoted the proposal of the respondent and, in the result, the Independent Children’s Lawyer, that the child live primarily with her.
The appellant points to the primary judge’s reliance upon the 2014 hospital notes and the 2018 hospital and general medical practice notes; the incident in July 2020 between the appellant and a contractor; the incident in December 2021, at the childcare centre; and the incident in October 2022.
The appellant submits that, self-evidently, the 2014 hospital notes relate to matters three years before the birth of the child and five years before the child came into his care. Viewed in isolation, and absent all the other matters upon which the primary judge placed weight, that complaint might have merit. However, contextually, it does not. It was a piece of the proverbial puzzle assembled by her Honour, without which it would be incomplete.
Notwithstanding his complaint in relation to the 2018 hospital and general medical practice notes, the appellant is silent in relation to them.
In relation to the incident in July 2020, the appellant merely submits that there was no evidence it had any effect on the child. There is no suggestion the child was present during the incident. Again, viewed in isolation, and absent all the other matters upon which the primary judge placed weight, that complaint too might have merit. However, contextually, it similarly does not. It was also a piece of the proverbial puzzle.
In relation to the incident in December 2021, at the childcare centre, whilst the primary judge indeed concluded at [58] that both parties acted in a manner that was not child focused and that she was unable to say that one party should accept greater blame for the incident than the other, the appellant ignores [53], where her Honour said:
The mother agreed in cross-examination that the father had proposed to shower [the child] and bring him back to child care. It is plain that she should have allowed this. But when the mother would not release [the child] the father should not have attempted to take him physically from the mother. The situation reflects poorly on both parents.
Whilst at [58], the primary judge concluded that this incident, although unfortunate, was not, by itself, indicative of “a pattern of violent conduct by either party” (emphasis added), we consider it is open to be inferred that it could fall within one of the other categories of concerns regarding the appellant identified by her Honour, such as, for example, being prone to angry outbursts, aggression, explosive moods, chronic interpersonal difficulties and poor impulse/emotional control (at [35], [36], [41] and [47]). This incident too formed a piece of the proverbial puzzle; the dissatisfaction of, and difficulty for, the appellant is that her Honour attributed, both quantitatively and qualitatively, more and bigger pieces of the puzzle to him.
Further, the appellant’s focus, in isolation, on [58] and her Honour’s comments that both parties acted in a manner that was not child focused and that neither should accept greater blame for the incident than the other, also ignores what she said in the two immediately following paragraphs. At [59], her Honour said that it was significant that, after the incident, the childcare centre banned the appellant (irrespective of the length of the period). At [60], her Honour found that the appellant had a demonstrated capacity to escalate events involving the child in a manner which lacked foresight about the consequences for him.
The appellant also points, without more, to the incident in October 2022, which her Honour considered at [64]. That was the first of two incidents to which her Honour referred, involving altercations between the appellant and neighbours, the other being in December 2022, which her Honour considered at [69]. Her Honour said at [70] that the latter incident raised “the same concerns” which, read contextually, can only sensibly refer to the former incident. Her Honour continued:
It seems likely that these are two different incidents involving two different neighbours because, while the people are not named they appear to be a man and a woman. Both incidents are sufficiently serious to warrant police being contacted.
As with the other matters identified by the primary judge, the incident referred to at [64], to which the appellant refers, was a further piece of the proverbial puzzle assembled by her Honour, which contributed to her conclusion at [117] that, given her findings about family violence and the appellant’s “history of anger management and impulse control issues” (emphasis added), it was those issues, “above all others” (emphasis added) which promoted the proposal that the child live with the respondent.
So analysed, it is clear that the appellant’s complaint is merely one in which it is contended that the primary judge gave too much weight to certain factors and insufficient weight to others. This is made starkly apparent by the appellant’s submission, in his summary of argument at [22.1], that her Honour:
placed too much weight on less probative evidence, too little weight on more probative evidence and critically omitted to make findings on evidence that effected the assessment of whether it was in the best interests of the child to live with the Mother, yet spend block time with the Father as a result of the findings of the Father’s history of anger and impulse control…
Insofar as the last of these propositions is concerned, it was no part of the respondent’s case (or that of the Independent Children’s Lawyer) that, as a result of the appellant’s history of anger and impulse control, he posed any unacceptable risk to the child such that he should not spend any or block time with him. Whilst these issues weighed against the child living, and, in the particular circumstances of this case, spending the overwhelming preponderance of his time, with him, it was not contended that the child should not spend time with him. As the Independent Children’s Lawyer submitted at first instance and on appeal, whilst there were risk issues that needed to be (and were) taken into account by the primary judge, there was no suggestion of unacceptable risk, as that term is understood in family law jurisprudence. Accordingly, it is entirely unsurprising that her Honour did not deal with the issue, let alone make any finding, of unacceptable risk in this regard, and the appellant’s reference to and reliance upon the decision of the full Court in Isles & Nelissen (2022) FLC 94-092 is misconceived.
Whilst the appellant refers, in this regard, to [117] of her Honour’s reasons for judgment, as we have already observed, in stating that, given her findings about his family violence and history of anger and impulse control issues, it was those issues, “above all others”, which promoted the respondent’s proposal, supported by the Independent Children’s Lawyer, that the child should live primarily with her. It is therefore tolerably clear from her Honour’s conclusion in [117] that she took into account all the issues identified by the parties, which she considered throughout her reasons for judgment, and considered that those specific issues, which she identified in that paragraph, tipped the scales in favour of the exercise of her discretion as sought by the respondent and the Independent Children’s Lawyer.
As Stephen J said in Gronow v Gronow, above, before reversal, an appellate court must be well satisfied that the primary judge was plainly wrong, the decision at first instance being no proper exercise of that judge’s judicial discretion. We are not so satisfied. Absent any error of law or mistake of fact, for us to arrive at a different conclusion than her Honour could only be little else than a difference of view as to weight, which would not, of itself, justify reversal. Further, the assessment of weight was particularly liable to be affected by seeing and hearing the parties, which only the primary judge (but not we) had the benefit of doing.
As the respondent correctly submits, whilst the appellant may be disappointed that the primary judge did not prefer his evidence and case theory, nevertheless, as the Full Court said in Marsden & Winch (2013) FLC 93-560 at [110], the applicable test is whether the findings of fact material to the exercise of her Honour’s discretion have been shown not to have been reasonably open to her. As cogent reasons were given by her Honour for the decision she made, which was well within the ambit of her discretion, there is no merit in Ground 2 and it similarly fails.
Proposed further ground of appeal
As we have mentioned above, in the course of the hearing of the appeal, and after exchanges between the Bench and the Bar table, counsel for the appellant sought leave to amend his grounds of appeal by adding a proposed further ground, namely, that:[18]
… Her Honour fell into error in that:
a.having found that the [appellant] suffered “historical vulnerabilities with anger management …” creating a risk for the child (Judgment par 65); and
b.had engaged in Family Violence as alleged by the [respondent] (judgment par 85).
Her Honour failed to consider how the [respondent’s] decision to leave the child with the [appellant] when she had the means available to have the child live with her, reflected on her parenting capacity.
[18] Exhibit 1, paragraph 12.
We granted the appellant leave to address us in relation to this proposed further ground of appeal, reserving the question of whether leave to amend would be granted.
As we have noted above, the primary judge said that:
·the orders sought by the respondent, and ultimately supported by the Independent Children’s Lawyer, that the child live with her, was a position not without its difficulties (at [4]);
·there were two significant issues which seemed, at least on their face, to raise questions about the respondent’s parenting capacity, which were also relevant to her Honour’s consideration of s 60CC(3)(c) of the Act, being: her failure to avail herself of the 2020 Orders, in light of the advantages which she contended such a move would have for the child; and her absence from the child’s life throughout most of 2020 and her failure to exercise all available time thereafter (at [102]); and
·at the conclusion of the trial, she “remained unable to make sense of the [respondent’s] decision to remain in Australia” following the 2020 orders, in circumstances where the respondent had the funds to pay the bond but did not do so and she did not exercise time with the child until the appellant initiated contact in December 2020, which her Honour agreed with the Independent Children’s Lawyer to be “baffling” (at [115]).
Nevertheless, in relation to the respondent’s contention that she was having difficulty obtaining a grant of legal aid and did not appreciate that she could see the child and so focused her efforts in obtaining legal assistance and representation (at [104]), it will be recalled that her Honour found there to be “a clear power imbalance” as between the parents,[19] as the respondent did not have significant proficiency in English, did not have the right to remain in Australia permanently, did not have the right to earn income, was younger than the father and had no access to family supports in Australia, such that her inaction, while “still curious”, was perhaps better understood (at [116]). In the circumstances, her Honour was satisfied that the parenting the child received from the respondent during the time they had spent together, was appropriate, and that to the extent the appellant had raised any issues historically, they had generally been about diet and were not matters which the Court Child Expert concluded impacted on parenting capacity (at [105]).
[19] Hillsworth & Kantawong [2023] FedCFamC1F 762 at [116].
Further, insofar as the appellant again seeks to agitate, in support of his application for leave to amend his grounds of appeal by adding a proposed further ground, the primary judge’s findings that he had a background of historical vulnerabilities with anger management and had engaged in family violence, we refer to and repeat our observations above in relation to his impermissible approbation and reprobation.
We also consider the appellant’s contention, in his proposed further ground of appeal, that the primary judge found he “suffered ‘historical vulnerabilities with anger management’ creating a risk for the child” not to be an entirely accurate account of her Honour’s reasons for judgment at [65]. Rather, her Honour there said that:
Against the background of the father’s historical vulnerabilities with anger management it is apparent that he is vulnerable to episodes such as the above. The risk for the child is both that he may be witness to such incidents which may be anxiety provoking or dangerous but also demonstrate poor role modelling. The Court Child Expert also expressed the view that as [the child] gets older he may pose more challenging behaviour for his father.
It is clear, not only from what her Honour said there, but also from the context thereof, that she was considering the parties’ competing applications that the child live with each of them moving forward. The risk to which her Honour adverted was that, by reason of the appellant’s background of historical vulnerabilities with anger management, the appellant is vulnerable to further episodes of poor anger management in the future which, if witnessed by the child, might be anxiety-provoking or dangerous for him or expose him to poor role-modelling. That risk might increase as the child gets older, if he poses more challenging behaviour for the appellant.
In circumstances where we consider there to be no merit in the proposed further ground of appeal, and therefore no prospect of success thereof, there would be no utility in granting the appellant leave to amend his Notice of Appeal and, accordingly, we shall not do so.
CONCLUSION
In the circumstances, the appeal will be dismissed.
Order 4 of the Orders made by the primary judge provided, in effect, that subject to the respondent purchasing a return ticket for the child and herself prior to 15 December 2023, to facilitate the child spending time with the father in the mid-year school holidays in 2024, and thereupon forthwith providing a copy thereof to the appellant (and being restrained from cancelling or changing that flight without his consent), as required by Order 11, the respondent be permitted to relocate the child’s residence to Country B, no sooner than 16 December 2023, and he thereafter live with her there.
At the conclusion of the hearing of the appeal on 6 December 2023, it was agreed that if the appeal were to be dismissed, the dates prescribed by Orders 4 and 11 would need to be varied. No submissions were made as to the extent of the extension. In the absence thereof, we observe that Term 1 in New South Wales concludes on 12 April 2024. Order 11 will be varied to require compliance by the respondent by that date and Order 4 will be varied to permit the mother to relocate the child’s residence to Country B no sooner than 13 April 2024.
Rule 13.53(2)(a) of the Rules relevantly provides that a party who intends to seek costs at the conclusion of the hearing of an appeal, subject to the outcome of the appeal, must file and serve, no later than seven days before the first day of the sittings in which the appeal is listed for hearing, a schedule of the costs to be sought at the scale prescribed by the Rules. None of the parties filed schedules of costs and counsel for each of them confirmed before us that no orders for costs were sought.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Hartnett, Jarrett and Strum. Associate:
Dated: 8 March 2024
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