FAMILY LAW – APPEAL – PARENTING – Where the mother appeals against parenting orders in relation to the father spending unsupervised time with the child – Where the primary judge made orders for a graduated arrangement for the child to spend supervised to unsurprised time with the father – Family Violence – Where the appellant argues that the primary judge erred in not inferring from the evidence available to him that the mother’s parenting capacity would be adversely impacted such that it was necessary for him to make an order for the child’s time with the father be supervised in order to ameliorate the extent of the mother’s distress – No error in the primary judge’s exercise of discretion – Findings open to the primary judge – No error of fact or law established – No error in attributing weight to the evidence – Appeal dismissed – No order as to costs.
[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.
Continue reading Keane & Keane
Sign in free to access the full text
Details
AGLC
Keane & Keane [2021] FamCAFC 1
Case
[2021] FamCAFC 1
Decision Date
CaseChat Overview and Summary
In the appeal of Keane & Keane, the mother contests the parenting orders that allow for the child to spend unsupervised time with the father. The matter was heard over fourteen days, beginning on 18 July 2019 and concluding on 26 March 2020. The primary judge delivered his judgment on 8 May 2020 and made orders that are now the subject of the mother's appeal. The mother alleges that the father perpetrated family violence against her and sexually abused the child, which she witnessed on four occasions. The father has been charged with common assault in relation to the incident at the time of separation. The primary judge made findings of family violence against the mother by the father but did not find that the father had engaged in acts of family violence against, or in the presence of, the child.
The legal issue before the court was whether the primary judge erred in his exercise of discretion when making the parenting orders. The mother argued that the primary judge erred in not inferring from the evidence that the mother's parenting capacity would be adversely impacted, such that it was necessary to make an order for the child's time with the father to be supervised to ameliorate the extent of the mother's distress. The court found that the primary judge adequately considered all relevant issues based on the evidence presented. The court concluded that the findings were open to the primary judge and that there was no error of fact or law established. The court also found that the primary judge appropriately attributed weight to the evidence. Therefore, the court dismissed the mother's appeal. The court made no order as to costs. The appeal against the orders of the judge of the Family Court of Australia made on 8 May 2020 is dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal against the orders of a judge of the Family Court of Australia made on 8 May 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keane & Keane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
For the reasons that will follow, we have found that the primary judge adequately considered all relevant issues on the basis of the evidence presented in the case and the manner in which his Honour exercised his broad discretion under the Act does not give rise to an appealable error.RELEVANT BACKGROUND In 2016, the child was born. She is now aged four (4) years. In 1985, the mother was born in Country C. She is in Australia on a partner visa by virtue of her marriage to the father and currently lives in the B town area with the child. In 1986, the father was born and also currently resides in the B town area. Both the mother and father and their respective families are practising Christians and agree that the child should be raised consistently with the teachings of that particular religious faith. In April or May 2018, the parties separated on a final basis. The child was aged 18 months at the time of the parties’ separation. The mother alleges that this occurred in the context where the mother had been subject to family violence perpetrated by the father and after she witnessed the father sexually abuse the child. The father suffers from a bipolar disorder and receives ongoing treatment for depression including taking prescribed medication. The primary judge did not make any findings in respect to the father’s parenting capacity being adversely impacted by this condition. This issue has not been raised as an error on the part of the primary judge. The parenting proceedings were heard by the primary judge over a period of fourteen days commencing on 18 July 2019 and concluding on 26 March 2020. On 8 May 2020, the primary judge delivered his reasons for judgment and made orders the subject of the appeal. Upon application by the mother, on 31 July 2020, his Honour made orders staying Orders 4(c) to 4(g), 5 and 14(a) of the orders of 8 May 2020 and varied Order 4(b) so that such time, being the child’s spend time with the father for two (2) hours each week supervised by a contact centre in B town, continue pending the determination of this appeal. The child had not spent any time with the father between May 2018 and the date of the primary judge’s orders of 8 May 2020. The child has since spent supervised time with the father on only one occasion but that is due to the impact of restricted operation of the contact centre in B Town resulting from measures associated with the COVID-19 pandemic. The parties anticipate that those restrictions will be eased in the coming weeks and months such that, unless set aside or varied by this Court, the current orders providing for the transition from supervised to unsupervised time would commence in the middle of 2021.Family violence A major focus of the hearing before the primary judge was the mother’s allegations that the father had engaged in conduct constituting family violence as defined in s 4AB of the Act. That conduct included acts of physical violence. The mother further alleged that the father had engaged in sexually inappropriate conduct with the child, including by attempting to engage in an act of penetrative sex with the child.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Once again, the primary judge’s findings in that respect were not the subject of challenge.Conclusions in relation to the mother’s allegations of family violence While the primary judge rejected the mother’s allegations that the father had committed a number of other acts of family violence, his Honour nonetheless held as follows:[240]…, having regard to all of the foregoing it is plain that there have been at least a number of occasions where the mother has proved, to the requisite standard, that the father has committed acts of family violence as defined in s 4AB of the Act against her. These occasions involve physical violence during what has been referred to as the Melbourne and Suburb U incidents, bullying and controlling behaviour during what has been referred to as the Passport incident, physical violence during what has been referred to as the events around separation, and acts of stalking and intimidation during what has been referred to as the events following separation.[241]Although the mother gave palpably unreliable evidence in relation to her attendance at her GP after the Hobart incident, and at times her evidence was vague, contradictory, and had the appearance of embellishment, it is difficult to avoid the conclusion that the parties’ relationship has been characterised by a significant level of family violence perpetrated upon the mother by the father. The fact of the family meeting in Country C and the resulting Agreement is entirely consistent with this conclusion. In all the circumstances I am prepared to make a finding in these terms. The existence or otherwise of an unacceptable risk to the child will need to be evaluated in part by reference to my findings that the mother has proved to the requisite standard that some of the allegations of family violence have occurred.[242]Importantly, however, and leaving to one side for the moment the allegations of sexual abuse of the child to which I will shortly turn, I am not able to make a finding that the father has engaged in acts of family violence against, or in the presence of, the child. It will be necessary to return to the significance of the fact that I am not able to make such a finding against the father insofar as the child is concerned when the existence or otherwise of an unacceptable risk to the child comes to be evaluated.Allegations of sexual abuse of the parties child As noted by the primary judge, the mother presented her case on the basis that the child should have no time with the father and that: [243]Central to the mother’s case that the child should have no time with the father is her allegation that she witnessed the father engaging in sexually inappropriate and abusive behaviour with the child on four occasions. The mother says she first witnessed the father being sexually inappropriate with the child in the shower on two occasions when the parties and the child were visiting the maternal family in Country C in early 2018. She also says that she again witnessed the father sexually abusing the child on two occasions in B Town in April 2018, eventually leading to their separation.Alleged abuse in Country C
Ratio Decidendi
Legal Principle Established
The unchallenged findings of the primary judge in respect to this incident is set out in the trial reasons as follows: [199]It is clear that upon the parties’ return to Tasmania from Country C in February 2018 there was at the very least a real concern on the part of the father and the paternal grandmother that the mother might seek to leave Australia with the child and hence that they needed to obtain the child’s passport to prevent this from happening. Having regard to the evidence of the mother, the father, the paternal grandmother and Mr F, I am prepared to accept that there was a serious disagreement between the father and the paternal grandmother on one hand, and the mother on the other, in relation to the child’s passport and who should keep custody of it. I consider that, in all the circumstances, the mother was subjected by the father and his family to family violence in the form of controlling behaviour and bullying in relation to the passport which caused her to be fearful.[200]On the evidence however, and in the absence of corroborating material from other sources, I am not able to make a finding ether way in relation to the mother’s allegations of the physical violence initiated upon her by the father at Melbourne Airport, or the physical violence she says was inflicted upon her by the father and the paternal grandmother once the parties had returned to Tasmania. It is clear that tensions were running high in relation to the passport once the parties returned to Australia from Country C, but in the face of such wildly differing accounts of what occurred I am unable to find the mother’s allegations of physical assault proved to the standard of s 140 of the Evidence Act.The events around separation The mother made allegations that, at the time the parties separated, on or around 29 April 2018, after she requested the father to return her mobile phone, the father became angry and that, as expressed by the mother: [202] …He then pushed me in front of [the child] into the bench and then to the floor. My hip banged into the bench badly. He pulled me [sic] hair and dragged me from the kitchen to the bedroom and put me of [sic] the bed and continued to punch me and hit me with the bag. [The child] by this stage was walking and followed me crying and I got up to try and comfort her but he grabbed [the child] aggressively and pushed [the child] to the floor and he grabbed my hand and he pushed me. I tried again to get [the child] to comfort her but he pushed her again onto the floor. I managed to get away from him and I ran away from him and I left the house. I was so scared. I left [the child] behind, as I was scared for my life and just knew I needed to leave the house. The primary judge describes how this event led to the father being charged by police with the father pleading guilty to a charge of common assault. After carefully analysing the parties’ respective factual contentions, the primary judge summarised his findings in respect to this incident that the evidence did not satisfy his Honour, to the requisite standard, that the father had engaged in acts of violence towards the child. The primary judge found, however, that “acts of family violence in the nature of physical assault were perpetrated on the mother by the father on 29 April 2018” (at [209]).