Khalil & Tahir-Ahmadi
[2012] FamCAFC 68
•25 May 2012
FAMILY COURT OF AUSTRALIA
| KHALIL & TAHIR-AHMADI | [2012] FamCAFC 68 |
FAMILY LAW – APPEAL – EVIDENCE – Application and operation of s 69ZT – Where at the commencement of the trial the trial judge made a decision and delivered reasons in relation to the application of s 69ZT – Where the father and the Independent Children’s Lawyer argued that subsection (1) should not apply because the circumstances were “exceptional”, so that the rules of evidence contained in the Evidence Act 1995 (Cth) would apply – Where the trial judge decided that the circumstances were not “exceptional” and subsection (1) should therefore apply – Where the parties were left in a position of uncertainty as to how the trial judge would treat the evidence to which objection had been raised – Where the preferable course would have been to indicate at the outset the use to which the contentious evidence would be put and what weight, if any, would be attached to it – Where the reasons for the final orders clearly explain the use and weight given to the contentious evidence – No appealable error demonstrated.
FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Family violence – Where the trial judge correctly identified the two significant issues for determination to be family violence, and orders which would best provide for a meaningful relationship with both parents – Where the mother alleged family violence was committed by the father – Where the trial judge found on the balance of probabilities that the father had committed family violence towards the mother, at times in the presence of the child – Where the evidence as to family violence objected to by the father clearly did not form the basis of the trial judge’s findings as to family violence committed by him – No appealable error demonstrated.
FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Meaningful relationship with both parents – Best interests of the child – Where the citizenship and residency status of the parents were such that the father would be living in Iran and the mother living in Australia – Where there was uncertainty as to the ability of the mother to enter Iran and she maintained she could not return in any event – Where there was uncertainty as to whether the child would be permitted to travel to Australia to visit the mother if he returned to Iran to live with the father – Where the evidence was there was some chance that the father would be able to obtain permission from the Iranian and Australian immigration authorities to visit Australia for the purposes of visiting the child – Where the child, now aged 13, was born in Iran but had lived in Australia since age 4 – Where the trial judge reasonably determined that the best interests of the child required the child live in Australia in the care of the mother and have time with the father in Australia if possible – No appealable error demonstrated.
| Family Law Act 1975 (Cth) ss 60CC, 65DAA, 69ZT Evidence Act 1995 (Cth) |
| Amador v Amador (2009) 43 Fam LR 268 AMS v AIF (1999) 199 CLR 160 Baker v The Queen (2004) 223 CLR 513 In the marriage of Bennett (1990) 14 Fam LR 397 Briginshaw v Briginshaw (1938) 60 CLR 336 Emmett & Emmett (No. 2) [2010] FamCA 57 In the Marriage of G (1999) 122 FLR 209 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 JG v BG (1994) FLC 92-515 Johnson v Page (2007) FLC 93-344 Maluka & Maluka (2011) FLC 93-464 Maluka & Maluka [2012] FamCA 373 Mazurka & Mazurka [2011] FamCAFC 68 R v Kelly (Edward) [2000] QB 198 Segur v Segur [2010] FamCA 556 State Central Authority v Ustinov (No.4) [2008] FamCA 987 Sun Alliance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Mr Khalil |
| RESPONDENT: | Ms Tahir-Ahmadi |
| INDEPENDENT CHILDREN’S LAWYER: | Stuart Barr |
| FILE NUMBER: | ADC | 4408 | of | 2009 |
| APPEAL NUMBER: | SA | 50 | of | 2011 |
| DATE DELIVERED: | 25 May 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman, May, Ainslie-Wallace JJ |
| HEARING DATE: | 15 February 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 July 2011 |
| LOWER COURT MNC: | [2011] FamCA 521 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Mellows |
| SOLICITOR FOR THE APPELLANT: | Legal Services Commission of South Australia |
| COUNSEL FOR THE RESPONDENT: | Mr Holland |
| SOLICITOR FOR THE RESPONDENT: | Catherine Hicks & Co. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Pickhaver |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barr Lawyers |
Orders
That the appeal be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalil & Tahir-Ahmadi has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 50 of 2011
File Number: ADC 4408 of 2009
| Mr Khalil |
Appellant
And
| Ms Tahir-Ahmadi |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 July 2011, final parenting orders were made by Justice Dawe in relation to the parties’ only child A (“the child”), born in February 1999.
By notice of appeal filed 28 July 2011, the father seeks to appeal all the orders.
This appeal follows litigation by the parents over many years. The determination of parenting arrangements for the child is complicated by the practical inevitability that the father will be living in Iran and the mother will be living in Australia.
In the summary of argument and in oral submissions, it became apparent that the fundamental basis of the father’s appeal is to challenge the conclusion reached by the trial judge, that it was in the child’s best interests to live with the mother, based on findings of violence by the father against the mother. The
trial judge’s decision was that the best interests of the child required that the child “live in Australia and in his mother’s care whilst, if possible, having some time with his father in Australia”.
It is necessary to set out the relevant parts of the orders of Dawe J:
(1)That the mother have sole parental responsibility for the child [A] born on […] February 1999.
(2)That [A] live with the mother.
…
(4)That whilst the father remains resident in Australia the father spend time with [A] in Australia at such times as the parties may agree and in default of agreement as follows:
(a) during school term time commencing on the third Friday in school term after the father delivers [A] to the mother each alternate weekend from conclusion of school on Friday to the commencement of school on Monday;
(b)commencing October 2011 for the first half of each mid-term school holiday and second half of the December/January school holidays;
(5)When the father is no longer residing in Australia at times to be agreed and in default of agreement each year for two periods of not less than two weeks for each period during school holidays commencing in December 2011/January 2012;
…
(8)The mother ensure that the child [the child] communicates with the father once a week by telephone or Skype.
…
(10)The father is restrained and an injunction is granted restraining the father from removing, causing or allowing the child [A] born on […] February 1999 to be removed from the Commonwealth of Australia without first obtaining the mother’s written consent.
(11)That the Australian Federal Police place the name of the said child [A] born on […] February 1999 on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of this Honourable Court or until [A] attains the age of 18 years.
The appeal raises some important issues as to how a trial judge should deal with evidence about family violence where that evidence may be crucial to the outcome of the proceedings.
History
As a matter of background it is helpful to provide a short history of the parties’ relationship and of the proceedings prior to this appeal. A detailed chronology of events was provided by the trial judge in her Honour’s reasons at paragraphs 31 to 80.
We understand that none of these matters are controversial.
The father was born in September 1965 and is 46 years of age. The mother was born in January 1969 and is 43 years of age. Both parties were born in Iran. The father, and the mother still as far as she understands, are Iranian citizens.
The father has qualifications in a professional field in Iran and was employed there in a teaching capacity. The mother undertook studies in a professional field in Iran and was registered as professionally qualified in 1996. In 2003 she gained specialist qualifications in her field.
The parties married in 1998 and the child was born in Iran in February 1999. He is now 13 years old. Of significance, the child was four years old when he moved to Australia.
In March 2002 the parties separated in Iran for approximately six months. The father blamed the mother for the separation, alleging she had become violent towards him during an argument. The mother said the father was in fact violent to her, which the father denied.
In May 2003 the father travelled to Australia on a student visa having obtained a scholarship from the Iranian government to complete his higher degree studies here. The mother and the child joined the father in Australia on dependent visas in September 2003.
Conditions were imposed on the scholarship contract and the father was required to provide guarantees to the Iranian Government to ensure his return to Iran. The father said that if he does not return to Iran he will forfeit property and money there, and guarantor family members will also be held financially responsible.
In July 2006 the family returned to Iran for a one month holiday.
After returning to Australia, the parties separated in October 2006. The mother left the former matrimonial home with the child, without telling the father. The father did not have contact with the child for over five months following the separation.
On 20 October 2006 the mother applied to the Department of Immigration and Citizenship for a protection visa for herself and for the child.
On 27 October 2006 the mother obtained a domestic violence restraining order against the father.
On 4 December 2006 the father initiated proceedings in the Federal Magistrates Court seeking parenting orders, including a recovery order for the return of the child to him.
On 23 February 2007 the mother and the child were granted protection visas which entitled them to permanent residence in Australia. The mother and child were located and served with the Federal Magistrates Court proceedings.
On 14 March 2007 Federal Magistrate Lindsay made an order appointing an Independent Children’s Lawyer.
On 21 August 2007 the father obtained an order from an Iranian court granting him custody of the child. The mother had not been served with these proceedings and was not made aware of the proceedings until after the order was made, despite the father having had full particulars of the mother’s solicitors in Australia.
On 5 November 2008 Federal Magistrate Lindsay made final orders that the father have sole parental responsibility, the child live with the father in Iran, and the child visit the mother in Australia on two occasions per year.
On 14 November 2008 the mother appealed from the orders of
Federal Magistrate Lindsay. Pending the appeal, the orders of the
Federal Magistrate were stayed and interim orders made that the child live with the father and spend regular time with the mother.
On 30 October 2009 the Full Court allowed the appeal against the orders of the Federal Magistrate and remitted the matter for rehearing. It was subsequently transferred to the Family Court.
In December 2009 the Department of Immigration and Citizenship cancelled the father’s visa. Following a successful application to the Migration Review Tribunal to remain in Australia, the father was granted a visitor’s visa, which he says will be revoked upon finalisation of these proceedings.
After the parties separated and until shortly before the decision of the
Federal Magistrate in November 2008, the child lived primarily with his mother and spent time with his father. After the decision of the
Federal Magistrate in November 2008, the child lived with the father and spent two weekends out of three and school holiday time with the mother.
The trial before Dawe J commenced on 15 November 2010 and was heard over 18 days between 15 November 2010 and 14 April 2011.
On 7 July 2011 Dawe J delivered judgment and made the orders which are the subject of this appeal.
Reasons of the Trial Judge
The trial judge delivered two judgments in this matter, the first being in effect a ruling in relation to the evidence (the s 69ZT decision) on 16 November 2010 and the second being in relation to final parenting orders on 7 July 2011.
The significant issues for determination in the parenting dispute as correctly understood by the trial judge were explained in paragraph 81 of those reasons:
81. In the latter part of the judgment the factors referred to in section 60CC are considered. However, the significant main issues to be determined in this matter relate to:
(1) the evidence concerning family violence and who was responsible for such family violence;
(2) the orders which would best ensure that [the child] can maintain a meaningful relationship with both of his parents. Relevant factors include the father’s visa and contractual arrangements which require him to return to Iran (with uncertainties surrounding his capacity to return to Australia) and the mother’s declared intention to remain resident in Australia and not visit Iran; …
It was not suggested by the appellant that these were not the significant issues in the trial.
The section 69ZT decision
It is important to appreciate at the outset of this discussion that the judge determined at the commencement of the proceedings whether the provisions of s 69ZT(3) should be applied. Her Honour raised this first with the father. The father’s counsel, supported by the Independent Children’s Lawyer, submitted that the provisions of s 69ZT(1) should not be applied so that the rules of evidence contained in the Evidence Act 1995 (Cth) (“the Evidence Act”) would apply. The submissions on behalf of the mother were to the contrary.
Section 69ZT provides as follows:
Rules of evidence not to apply unless court decides
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
On 15 November 2010 when the proceedings commenced, the lawyers for the parties made submissions about the evidence to be relied on in the hearing. Objections were made to proposed evidence.
When dealing with the evidence proposed to be relied on in the hearing, counsel for the Independent Children's Lawyer proposed that the expert he intended to call about immigration issues be provided with documents released by the Australian Department of Immigration and Citizenship, together with the reasons delivered by the Minister’s delegate in determining to grant the mother a visa. While counsel for the father did not object to the expert being provided with the documents per se, his consent was limited to them being used to show the material that was before the authorities at the time the decision was made to grant the mother a visa. Objection was taken to any use of the documents as proof of the facts asserted in them.
In the course of argument her Honour said in reference to the lists of objections to affidavits filed by the parties:
…So, when I’m encouraged by the parties to consider whether there are exceptional circumstances or not….I’m dealing with all the other objections to the material which I have before me in the Independent Children's Lawyer’s objections. I haven’t studied each and every one of them but the summary is they are all alleged to be opinion or hearsay or both and only in one case irrelevant.
Her Honour then made reference to a document produced by Hospital 1 to which objection had been taken. The document was a letter under the hand of a Resident Medical Officer of the hospital, dated 27 June 2005 and referred to the mother’s attendance at the on the night of 27 June 2005.
The letter noted:
The presenting problem was SINGLE TRAUMA-A/A LAST PM. C/O TMG (sic) PAIN, SEE LETTER.
The diagnosis was FACE WOUND OR BITE UNCOMPLICATED- FACE WOUND OR NON VENOMOUS BITE.
Thankyou for referring this lady. I note that she sustained a blunt trauma to the nasal region last night via a clenched fist. She has subsequently suffered facial pain, TMJ region pain on the left and some altered sensation of the front maxillary teeth.
Examination revealed minimal boney (sic) tenderness, normal TMJ movments (sic) and normal teeth alignment….
Objection was taken to the admission of this document if the purpose was to assert “proof of the truth of the contents”. In further argument, counsel for the father objected to any part of the document that represented an opinion, including the diagnosis.
Her Honour expressed the view that the diagnosis was an expert opinion and it seems that when referring to the “diagnosis” her Honour was referring to the “face wound or … bite”. From the exchange with her Honour and the parties, it is clear that all were aware that the mother asserted that the father had assaulted her by punching her on the evening of the 27 June 2005, and the resident medical officer’s report was in aid of proof of her allegation.
Her Honour indicated that she was prepared to accept the document as a record of the diagnosis of the medical officer and, given the diagnosis, said that she proposed to “give it very little weight bearing in mind the reference to it being a possible non venomous bite”.
Next, her Honour was referred to two documents produced by the Coroner’s Office of Hamedan Province in Iran. The first was from the City of Hamedan Police Jurisdiction dated 22 March 2002. It referred the mother to the Head of the Coroner’s office and requested a medical examination. The letter notes:
This is to inform that the above named person sustained injuries to her arm, lips and face as a result of being assaulted.
Objection was taken to the conclusion expressed in the document being admitted as proof of the truth of the contents. Her Honour observed:
…the document…is it being put to the court to simply prove that the mother reported to the police station. It doesn’t say when…
Her Honour then considered the second document, a report by the Coroner, apparently in response to the referral and related to an examination of the mother on 22 March 2002.
The letter noted as to findings:
Pulverisation (Compatible with the incident) on the right wrist
Pulverisation (Compatible with the incident) on the chin
Pulverisation (Compatible with the incident) on the inside of the upper lips.
The above injuries are the result of being hit by a hard object within the past 24 hours. The required duration for the treatment is determined to be one week from the time of the incident.
Objection was taken to this document to the extent that it contained an opinion.
Finally, objection was taken to a further document apparently produced by the mother’s general practitioner in Australia. Her Honour correctly identified it as “the doctor’s notes presumably taken from a computer by way of a computer print-out”. Submissions were made again objecting to the reception of the document as proof of the facts asserted. Her Honour observed:
…as I understand it’s presented, most of it’s presented under History of Present Complaint, clearly not necessarily saying that the doctor accepted the present complaint as true.
Further the judge said:
Well, I would never assume that I could rely upon what was put in the doctor’s notes as a complaint by one person is the truth.
The decision to hear the matter applying the provisions of s 69ZT(1) was made by the trial judge on 16 November 2010, the second day of the hearing.
In these reasons Dawe J set out and addressed each of the relevant subsections. Her Honour also discussed decisions of the Family Court in relation to interpretation of the meaning of “exceptional” in s 69ZT(3) and noted that decisions in relation to the meaning of exceptional had been limited to judges of first instance. The judge proceeded to cite the passage of Callinan J in the High Court decision in Baker v The Queen (2004) 223 CLR 513:
13.… in which his Honour referred with approval to Lord Bingham of Cornhill CJ in the case of R v Kelly (Edward) [2000] QB 198 where at page 208 his Honour said:
“We must construe ‘exceptional' as an ordinary familiar English adjective and not as a term of art. It describes a circumstance which is such as to form an exception which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique or unprecedented, or very rare, but it cannot be one that is regularly, or routinely, or normally encountered.”
(original emphasis)
Her Honour addressed, correctly as she was required to do, the provisions of
s 69ZN (principles for conducting child-related proceedings):
15. I have taken into account, as I am required to do, the provisions of section 69ZN of the Family Law Act, which makes it clear that the Court must give effect to the principles in performing duties and exercising powers in relation to child related proceedings, and in making other decisions about the conduct of child related proceedings. “Must” is a clear requirement that something must be done and is not discretionary. The principles enunciated in section 69ZN include that the first principle is to consider the needs of the child and the impact that the conduct of the proceedings may have on the child.
16.There is also a second principle which says that the Court is to actively direct, control and manage the conduct of the proceedings.
17.The third principle, clearly of relevance in this matter, is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect, and the parties to the proceedings against family violence.
18.The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will prompt cooperative and child focused parenting by the parties. Whilst I take a note of that principle, these proceedings thus far do not suggest there has been, or will be, cooperative and child focused parenting by the parties.
The trial judge gave detailed reasons in reaching the decision that the circumstances were not “exceptional” and that s 69ZT(1) should apply. We repeat part of those reasons here:
20. This is not a case where I am being asked to make a positive finding of sexual abuse. It is a case which has some unusual features relating to the immigration and foreign law issues. But the significant factors to be determined relate to issues concerning family violence and allegations in relation to the parenting capacities of each of the parents, and the possible psychological harm from inappropriate parental influence. Issues such as family violence and capacity of parents to provide a proper upbringing for the child and the attitude to the relationship with another parent are not issues which are unusual or exceptional in Family Court of Australia proceedings.
21. The circumstances of this matter are ones which primarily surround the question of family violence, and the issues in relation to section 60CC, so far as they relate to the attitude to parenting and the child, the capacity to parent and the willingness to encourage a relationship with the other parent. Those matters are the matters which relate to the issues in the proceedings which require the consideration of section 69ZT(3).
22. I am not satisfied that the circumstances surrounding these issues are exceptional. It is clear that in this Court, the Family Court of Australia, the cases which come before the Court are now very regularly cases involving allegations of family violence, psychological harm and inability or unwillingness to encourage a relationship between the child and the other parent.
23.The Court therefore is unable to say that the unusual features of the case, so far as they relate to the issue of immigration or foreign law, are sufficient to bring into effect the provisions of section 69ZT(3). Therefore, I am not satisfied that the circumstances are exceptional.
Her Honour then said:
24.I do take into account the importance of some of the evidence, so far as it relates to various issues, and the nature of the subject matter, but I also take into account the provisions of subsection 69ZT(2), which gives the Court a discretion to give such weight, if any, as it thinks fit, to evidence admitted as a consequence of the provisions of the Evidence Act not applying.
25.To that extent, therefore, evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in the appropriate context and given the appropriate weight, depending upon who is expressing the opinion and on what basis, and the establishment of the necessary background facts.
26.I am therefore, at this stage, not proposing to make any blanket order which requires the facts to be established with evidence required in accordance with the Evidence Act, but will proceed to hear the matter pursuant to the provisions of section 69ZT(1). I also do that on the basis that this matter has been before the Federal Magistrates Court and the Family Court now for a period of years, and the papers have been prepared and placed on the Court file since the introduction of section 69ZT. The evidence was prepared for this trial. It can be assumed that it was prepared on the basis that section 69ZT(1) applied. I would not find that this is a matter in which the circumstances are exceptional within the definition of section 69ZT(3).
The order made by Her Honour was:
(1)At this stage I do not propose to make any blanket order which requires the facts to be established with the evidence required in accordance with the Evidence Act but will proceed to hear the matter pursuant to the provisions of section 69ZT(1).
Although her Honour heard submissions on contentious pieces of evidence and indicated preliminary views as to the use to which some of that evidence could be put, the difficulty we see with the order she made is that it left the parties in a position of uncertainty as to how she would treat the evidence to which objection had been raised. In our view, although as we will shortly discuss, there is no substance to the appeal, it would have been preferable for her Honour to have clearly indicated the use to which the contentious evidence would be put and the weight, if any, she proposed to attach to it.
Reasons for the final orders
At the trial the father sought orders that the parents have shared parental responsibility, the child live with him in Iran and the mother visit Iran to spend time with the child. The mother sought orders that she have sole parental responsibility, the child live with her and that the father visit the child in Australia.
After first outlining the history of the proceedings in both the
Federal Magistrates Court and the Family Court of Australia, including the course of evidence in the trial before her, the trial judge proceeded to identify the law as it was applicable to this case. The trial judge quoted in full the following provisions from the Family Law Act 1975 (Cth) (“the Act”): section 4 definition of “abuse” in relation to a child, and definition of “family violence”, and ss 60CC, 65DAA and 69ZT.
The trial judge prefaced her discussion of the evidence by identifying the significant main issues as quoted in paragraph 31 of these reasons. Dawe J dealt first with the two significant issues identified.
(i) Family Violence
Her Honour recorded the mother’s allegation that she had been subjected to emotional and physical abuse by the father both before and after the birth of the child. The father denied any violence and asserted that the mother had fabricated the allegations to enable her to remain in Australia. The father claimed that the mother had been violent to him.
Her Honour noted at paragraph 49 and following, that in June 2005 the mother claimed the father had hit her in the face, causing bruising and pain. She attended her general practitioner the next morning and, in the course of the consultation complained to him about the violence. She was referred for x rays.
In respect of this issue, the trial judge set out the evidence of the parties:
83. During cross-examination by the Independent Children’s Lawyer the father was asked to explain why he told the mother’s General Practitioner that the mother had hit her face on a door in June 2005 when the mother had visited the doctor with an injury to her nose. The father was present when the mother told the doctor that the father had hit her. When asked why he had told the doctor that the mother had hit her face on the door, his response was “I just guessed that”.
84. The mother’s affidavit evidence and oral evidence maintained her allegations that she had been the victim of assaults by the father. She denied being violent towards the father, other than agreeing that there was a possibility that he was scratched when she defended herself on one occasion.
The trial judge then proceeded to discuss the credibility of the mother’s evidence, and the extent and effect of any inconsistencies in her evidence and found that:
87. Whilst there was some minor inconsistencies in the evidence of the mother, such inconsistencies were not sufficient to challenge the overall context and reliability of her evidence about the father’s violent, controlling behaviour towards her.
Referring to the evidence of the mother and the position of the father, the
trial judge then made a finding, accepting the evidence the father had assaulted the mother, at times in the presence of the child:
88.The affidavit evidence of the mother, her oral evidence, the annexures to her affidavits and exhibits support the mother’s allegation that she was the victim of violence at the hands of the father. Notwithstanding the father’s vehement denial of responsibility for any violence, the evidence supports the finding which I make that the father has assaulted the mother, at times in the presence of the child [A].
In the context of the arguments about how the trial judge dealt with the evidence, it is significant that her Honour characterised her conclusion as a finding. The trial judge continued, specifying the evidence which led her to make this finding:
89.In particular, the evidence indicates that the father assaulted the mother in Iran in March 2002, when the mother sustained injuries to her face and arm. The mother reported the incident to the police and was medically examined.
90. I prefer the mother’s evidence about the assault in June 2005. The mother’s evidence was that in June 2005 the father hit her. The next day the mother and father went to the General Practitioner where, in the presence of the father, the mother told the General Practitioner that the father had hit her. The Police Incident Report included the reference to the following:
When the victim called her husband a ‘shit’ he punched her to the mouth and nose with one of his fists using great force … victim states she thought this would end the incident but her husband continued to punch her a second time to the face and then kicked her left leg once … victim was crying and child was present and crying.
The trial judge re-affirmed her earlier finding that the father had been violent towards the mother, specifically stating she had considered the father’s evidence and the inconsistencies in the mother’s evidence pointed to by the father’s counsel, and determined the finding was substantiated on the balance of probabilities notwithstanding:
92. The father’s evidence, particularly in relation to the father suggesting that the mother had hit her face on the door, was not convincing.
93. Considering the evidence of the mother, together with the evidence of Ms [N] and Ms [L], and notwithstanding some of the inconsistencies which the father’s counsel highlighted, I am satisfied on the balance of probabilities that the mother has been the victim of violent and controlling behaviour by the father and that [A] has at times been involved in the incidents and observed the father’s violence.
In concluding the family violence issues, the trial judge referred to the mother’s allegation that the father was violent towards the child and the father’s denial in response to the claim. The trial judge also mentioned the child’s reference to the father “doing bad things” to both him and his mother. The trial judge did not, however, make findings in respect of these allegations.
(ii) Meaningful relationship
Her Honour then turned to the other main issue for determination, the orders which would best ensure the child maintain a meaningful relationship with both parents. Her Honour considered the primary consideration to be the capacity of the parents to travel between Iran and Australia.
The evidence before her Honour was that the mother would not return to Iran, and the father was compelled to return to Iran to comply with his contractual obligations with the Iranian government.
Her Honour considered the evidence before her about the mother’s position not to return to Iran:
Parents’ capacity to travel between Iran and Australia
96. The mother is now an Australian citizen. As far as she is aware she continues to be an Iranian citizen. The mother strongly asserted in her evidence that she will not return to Iran. One of her reasons was that she strongly believed that if she returned to Iran it would be a requirement that the father give her permission before she could return to Australia. She also believed that the father would cause trouble for her and make her life difficult in Iran.
97. Mr [H] gave evidence that the Iranian Courts would not recognise any parenting order of the Family Court of Australia. His evidence was that the order the father had obtained from the Iranian Court giving him custody of [A] would prevail. Mr [H’s] evidence was that if the parents did not agree arrangements for [A] to spend time with his mother, the mother would need to make application to an Iranian Court.
98. Mr [H] also agreed that whilst the mother and father remain married, the father would have to give permission for the mother to leave Iran if she returns.
99. The evidence of the Migration Agent, Mr [G] was that, notwithstanding the mother had Australian citizenship and an Australian passport, she would still be subject to control by the Iranian authorities if she returned to Iran.
The trial judge then considered the evidence about the father’s position that he would be forced to return to Iran at the conclusion of proceedings and that his ability to return to Australia in the future was uncertain:
100. The father’s student visa expired years ago. His permission to remain in Australia has been extended due to the ongoing proceedings in the Federal Magistrates Court and more recently because of the Appeal and further proceedings in the Family Court of Australia. Evidence indicated that his visa had been extended only whilst these proceedings have not been concluded.
101. I accept the evidence that it is likely that at the conclusion of these proceedings the father will be required to return to Iran, although, there was some evidence to suggest that the father might be able to apply for a visa to remain in Australia. I accept the father’s evidence that he needs to return to Iran to carry out the terms of his contract with the Iranian Government. Because he has been provided with the scholarship to study in Australia he is required to return to Iran and work for the government. Failure to do so would have significant financial consequences for himself and his family members who have guaranteed his compliance.
102. I am satisfied therefore that the father has little choice but to return to Iran to resume employment.
103. The evidence about the father’s ability to obtain permission from both the Iranian Government and the Australian Government to return briefly to Australia on regular occasions to spend time with [A] was not conclusive.
104. The father asserted that it would be difficult for him to get permission to leave Iran whilst he was still fulfilling the terms of his contract with the Iranian Government and that this would be for a period of approximately seven years.
105. There is little reliable independent evidence about the restrictions that the Iranian Government might place on the father to the extent that he would be prevented from spending brief periods in Australia in order to spend time with his son.
106. The evidence of Mr [G], the Migration Agent, was that the father’s situation was complex. I accept his evidence that if the Iranian Government criteria were satisfied then the father may have no difficulty in obtaining a tourist, or extended visitor visa in order to spend time with [A] in Australia. He conceded however that there was a possibility that the delegate considering such an application for a visa could possibly bring into account the mother’s allegations about the father’s violence which she made when she applied for her protection visa.
107. In cross-examination by counsel for the mother, Mr [G] agreed that it would be surprising if a tourist visa to visit his son in Australia were not granted to the father, but at the same time acknowledged that all of the history of the matter might need to be considered.
Understandably, on the basis of this evidence, the trial judge was unable to make a conclusive finding about the father’s capacity to travel between Iran and Australia.
The trial judge then returned to the capacity of the mother, referring to evidence relating to the mother’s belief that it was not safe for her to return to Iran. Her Honour referred to a report of the US State Department about which we received submissions in the appeal. Her Honour said:
109. The evidence however clearly indicates that the mother has a strongly held firm view that it is not safe for her to return to Iran and that she proposes not to do so.
110. When the Immigration delegate made a decision to grant the mother a Protection Visa, allowing her to remain permanently in Australia, the delegate gave consideration to a report of the United States of America State Department concerning human rights in Iran. The report is dated 2005. This report was received in evidence as a document which was considered by the delegate when granting the mother’s Protection Visa. There was opposition to the Court receiving the US State Department Report as evidence of the facts asserted therein. The evidence of the decision of the delegate of the Minister was based on information available to the delegate.
111. The delegate’s findings include that the mother “fears harm from her husband. She also fears that the state will not protect her because of her gender”. The Delegate also found that the mother has “a genuine fear of harm and that there is a real chance of persecution occurring” and that the mother’s “fear of persecution as defined under the Refugees Convention, is well-founded”. (Page 10 of delegate’s findings).
As to whether the child could travel between Iran and Australia, her Honour said:
112. Evidence was given about proposals for [A] to travel between Australia and Iran in the company of a relative. The mother was, however, strongly opposed to [A] travelling to Iran based upon her firm belief that the custody order obtained by the father and the provisions of the law in Iran would create a situation which would make it highly likely that [A] would not be returned to Australia. In the circumstances this belief is reasonable.
The trial judge found that each alternative would most likely result in the loss of a meaningful relationship of the child with the non-resident parent:
113. The evidence therefore establishes that if [A] returns to reside with the father in Iran it is unlikely that he will be able to maintain a meaningful relationship with his mother. Communication between [A] and his mother would be limited to telephone or email communication.
114. The evidence also indicates that it is also unlikely that if [A] remains in Australia in the care of his mother that he would be able to maintain a meaningful relationship with his father, other than by telephone or computer communication.
In seeking to resolve this impasse, the trial judge found that the loss of a meaningful relationship with the other parent was less likely if the child were to live in Australia, as there was, on the evidence, a possibility of the father visiting the child here should he apply to the two governments to visit.
Her Honour concluded the issue with findings as to the likelihood of the child seeing both parents in the two alternative scenarios:
139. There is some possibility, although only limited, that if [the child] resides in Australia with the mother the father may be able to obtain permission from the Iranian and Australian Governments to regularly spend time with [A] in Australia. There is no likelihood that [A] could enjoy the company of his mother in Iran, if [A] resides in Iran. There is limited likelihood if [A] resides in Iran with his father, [A] could travel from Iran to Australia to spend time with his mother because any order made in Australia requiring the same would not be enforceable in Iran.
(iii) Other relevant issues
Dawe J correctly considered the provisions under the Act which must be considered when making parenting orders. Those considerations begin with the presumption of equal shared parental responsibility in s 61DA, and in this case followed with a consideration of whether significant and substantial time with each of the parents was in the best interests of the child and was reasonably practicable. As counsel for the father indicated at the appeal hearing that no challenge was made to her Honour’s findings in relation to these considerations, the reasons need not be repeated here.
The trial judge then discussed the evidence in relation to each factor in s 60CC. Having already identified the issues of a meaningful relationship and family violence as significant issues and addressed these, the trial judge concluded in relation to the primary considerations of the section:
121.In s60CC the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
122. As previously indicated in this judgment it is likely that the child will not be able to maintain a meaningful relationship with one of his parents in the future. Any relationship to be maintained may be limited to the relationship which can be promoted through telephone and computer communications until [A] is an adult.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence;
123. The Court finds on the balance of probabilities that the father has been violent towards the mother and that such violence has from time to time occurred in the presence of the [the child]. This is a significant factor.
The trial judge then dealt with the additional considerations in some detail, including the child’s views by reference to the Family Report:
124. The additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should given to the child’s wishes;
125. The parties separated in October 2006 over four and a half years ago. [A] is now aged 12.
126. The reports of Mr [M] and his oral evidence provide significant detail about [A’s] expressed wishes. In 2007 [A] was interviewed by Mr [M] at both his father’s home and his mother’s home. When interviewed at his father’s home he was definite about his desire to live with his father. On page 6 of the first report of Mr [M the following is reported:
[A] was definite in his opinions. He said, ‘I want to live with my Dad’. The writer asked him why he wants to do this. [A] replied. ‘He is nice, he plays with me, he takes me to soccer and buys me things like remote control cars’. [A] showed the writer two expensive looking remote control cars that his father has bought for him.
The writer asked [A] what it is like living with his mother. [A] answered, ‘It is not so good with Mum, she shouts at me to go in my room’. The writer asked him if his mother shouts at him because he is naughty. [A] replied, ‘I don’t do bad things’. The writer asked [the child] if his mother is ever nice to him. She replied, ‘She is sometimes nice, she is nice, nice’. [A] explained that he meant that when his mother is nice to him she is ‘really nice’.
127. During that interview [A] indicated to Mr [M] that he wanted to live with his father in Iran. He explained that he had not told his mother that he wanted to live with his father because she would get cross.
128. The Family Consultant also interviewed [A] at his mother’s home. At page 10 of the report the following appears:
The writer asked [A] if he remembered what he had said about with whom he wants to live. [A] said, ‘I want to live with my Mum I mean Dad. Sometimes I get mixed up and I call Dad Mum and I call Mum Dad’. The writer asked [A] why he wants to live with his father. [A] replied, ‘Because he is nice, he is pleasant he takes me to soccer and to the ceremony’. [A] was unable to explain clearly what he meant by the ceremony. The writer took him to mean religious ceremonies.
129. When dealing with the issues in his report under the heading “Assessment”, Mr [M] included the following:
[A] lacks the emotional and intellectual capacity to make a clear and definite decision about with whom he should live and about which future he should pursue. [A] is too immature to make an informed decision about where his future lies. [A] is easily influenced and swayed in his opinions by his parents. He has no understanding of the issues his parents are contesting.
[A’s] comments about his parents suggest that he enjoys a good relationship with both of his parents. His preferences for living with his father seem to be significantly influenced by his father’s abilities to buy him better toys. [A] has no clear understanding as to what it would be like to live without one of his parents. [A] has no understanding as to how his relationships with either parent would be affected if one was to live in Iran and the other was to live in Australia.
130. The second report is based upon interviews with the parents and [A] in June 2010. [A] was then 11 years old. Interviewed at the mother’s home, [A] was asked with which of his parents he wanted to live and whether or not he wanted to live in Australia or Iran. Mr [M’s] report includes:
…[A] presented as a confident and intelligent boy. He was far more subdued and thoughtful than he had been when the writer had previously interviewed him.
[A] was clear in his opinions about with whom he would like to live. He said, ‘I don’t know who I want to live with.’ The writer asked him if there are any differences between his parents or in his relationships with them. [A] replied, ‘There is no difference between them.’
The writer asked [A] how he though (sic) about himself, does he consider himself Australian or Iranian. [A] answered, ‘I’ve never thought about that.’ The writer asked him if he had any thoughts about whether he would prefer to live in Iran or in Australia. [A] answered, ‘No, I’ve never thought about Iran or Australia.’ Later in the interview, [A] said, ‘I wouldn’t care if I lived in either Iran or Australia.’”
[A] told the writer that it was too hard for him to make any decisions about with whom he lives or about in which country he lives. [A] said that he loves his parents equally.
131. Subsequently, [A] was interviewed at his father’s home. The report contains the following:
[A] approached the interview in a friendly and chatty manner. The writer began the interview by asking him if he had any new thoughts about with whom and where he should live since the writer had last spoken with him. [A] answered, ‘I don’t know exactly who I want to live with.’ He paused and added, ‘Dad most likely.’
The writer asked why [A] wants to live with his father more than his mother. [A] answered, ‘Well he doesn’t get as frustrated as Mum. Sometimes she yells and all that.’ The writer asked him why his mother yells. [A] replied, ‘I don’t know why. I drop the remote control and she says do you want to break it?’
The writer asked [A] if he was also saying that he would like to live in Iran. [A] answered, ‘I would like to live in Iran, YEEEAAAH.’ The writer asked [A] if he has told his mother where he would like to live. [A] said, ‘I haven’t told Mum.’ The writer asked him why he has not told his mother what he wants. [A] replied, ‘I don’t know why, I had a reason and I forgot (the reason).’
The writer asked [A] if he had requested his father to writer (sic) a letter to the Court. [A] said, ‘I asked Dad to write a letter to the Court. I forget exactly what I said. If I had to choose it would be my Dad.’ The writer asked [A] why he had not said this when the writer had interviewed [A] at his mother’s house. [A] responded, ‘I was still thinking (about it) at Mum’s.’
132. When considering his conclusions under the heading of “Assessment”, Mr [M] referred to the complex issues and in part of the assessment said:
[A] is living with his father. It could be expected that he would or might favour his father in the present conflict. [The mother] would claim that [A] is being strongly influenced and intimidated by his father to agree to living with his father and returning to Iran. It is likely that both parents have attempted to influence [A] one way or the other. Some of their attempts will have been overt some will have been far more subtle.
[A] does not present as a child who is intimidated or frightened of either of his parents. [A] remains highly manipulative. It is highly likely that the current conflict through the Courts has to some extent undermined the confidence of both parents in setting limits on and imposing boundaries on [A]. Currently, [A] possibly has a considerable amount of power in deciding with which parent he will live. This is an unenviable position for any parent to find themselves in.
133. In his oral evidence, Mr [M] confirmed that [A] was a very confident, intelligent boy. He also described [A] as highly manipulative. He confirmed that he perceived [A] to have “lots of power and no responsibility”.
134. The father gave evidence that he wanted to comply with [A’s] wishes.
135. When assessing [A’s] wishes the Court takes into account Mr [M’s] expert evidence, and in particular that Mr [M] agreed that when [A] was with his father he would follow him and when with his mother, follow her.
136. All of the evidence presented to the Court supports a conclusion that [A] has been caught up in the ongoing acrimonious dispute between his parents.
137. The evidence of the various witnesses called by the parties and the Independent Children’s Lawyer indicates that [A] has reacted to his mother’s attempts to discipline him.
138. Considering the background to the interviews with [A] and taking into account all of the evidence of Mr [M] and the other psychologists’ evidence, [A’s] express wish to live with his father in Iran should not be seen as a determinative factor.
(emphasis added)
An issue before her Honour in her consideration of the views of the child was the child’s relationship with the mother, which was said to be strained.
Her Honour said:
141. The mother acknowledges, and the evidence indicates, that there have been difficulties in the relationship between the mother and [A], particularly since [A] began to reside with the father after the orders made in the Federal Magistrates Court. The Court accepts the evidence of the experts, Ms [N] and the Trainee Psychologist, Ms [L], about the earlier difficulties in the relationship between the mother and [A] and the background explanation for those difficulties.
142. The Court has the benefit of the evidence of Mr [M], who prepared the Family Assessment reports in September 2007 and June 2010, after interviewing the parties and [A]. His reports, together with his oral evidence, concluded that [A] appears to enjoy a good relationship with both of his parents.
143. The evidence clearly indicates however that the mother has had, and continues to have, some difficulty in maintaining a proper parental relationship with [A], who reacts in an unfavourable way to the mother’s attempts to direct or discipline him. The mother also complains about the aggressive and resistant behaviour of [A] towards her at times.
144. The mother recognises the difficulties and tensions in the relationship between herself and [A] and has taken steps to overcome these with some limited success.
145. I accept the evidence of the mother that after a short time with her that [A’s] behaviour improves and settles to a more amenable relationship.
Her Honour continued to consider secondary considerations (d) and (e):
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
…
154. [A] is now 12. He was four when he started living in Australia. He has attended school in Australia. He has not attended school in Iran.
155. He has established strong social relationships in Australia.
156. The separation from either of his parents is likely to be a significant impact upon [A] emotionally and psychologically. This may impact upon his future development.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
157. There is considerable practical difficulty and expense in travelling between Iran and Australia. These difficulties relate to visa requirements and the expense and practical arrangements of travelling between Iran and Australia on a regular basis.
158. As previously discussed it is more likely that the father may be able to make arrangements to travel to Australia to see [A] than that the mother will change her view about never returning to Iran. As previously discussed there are also serious practical difficulties relating to [A] travelling from Iran to Australia (whether that be for a visit to the mother or a return after visiting the father) because of the inability of the mother to obtain enforcement of any Australian order in Iran.
…
167. Since [A] was four he has been in Australia where he has made friends. For most of his life and for the significant recent years, he has participated in the Australian culture. At the same time he has continued to receive information from both his mother and father about his Iranian background and culture. I am satisfied that if [A] remains in Australia, his mother will continue to encourage his interest in, and connection with, the Iranian culture and his extended family, although such interaction would be substantially more limited than if he were living in Iran with his father.
(emphasis added)
In her conclusions, the trial judge reaffirmed her findings in respect of the primary issues of family violence and the meaningful relationship of the child with both parents. Her Honour also raised as a significant factor the current and possible future circumstances of the child:
170. Another significant factor is that [A] has now been residing in Australia since September 2003. Notwithstanding, the difficulties in his family relationships he has progressed well at school. He has been described as highly intelligent. The evidence suggests that he loves and is loved by both of his parents. If he remains living in Australia with his mother, the future appears more certain than the unknown factors which would arise if he were to return to Iran to reside with his father.
grounds of appeal
We consider, and counsel for the father agreed, that the father’s grounds of appeal fall within three broad categories. First the admissibility and weight of the evidence of family violence, second the weight placed on the evidence of witnesses Dr T, Ms B and Mr S, and third the consideration of the factors in
s 60CC of the Act.
The father’s grounds of appeal as set out in the amended grounds and explained in the summary of argument assert that the trial judge erred in the exercise of her discretion on the following bases:
(i) As to the admissibility and weight of the evidence of family violence:
· by admitting or placing too much weight on the evidence received under section 69ZT, which was prejudicial and self-serving evidence relating to the allegations of family violence, and in finding the circumstances of the case were unexceptional within the meaning of section 69ZT, or alternatively giving undue weight to such evidence, in the absence of corroboration and independent medical evidence (grounds 1, 12 and 17);
· by placing too much weight on the disputed evidence of family violence, and dismissing the father’s denials that he had been violent to the mother notwithstanding inconsistencies in the mother’s evidence, in finding that it was in the best interests of the child to live with the mother (ground 2);
· by failing to give reasons for the conclusion that the mother’s view about the situation in Iran was reasonable, based on the US State Department report regarding the situation in Iran, which was the only evidence before the court dealing with that issue (ground 17).
(ii) As to the weight placed on the evidence of witnesses Dr T, Ms B, and Mr S:
· by failing to evaluate, by mentioning or considering, the evidence of the witnesses Dr T and Ms B which was crucial as it relates to the observations made of the father’s relationship with the child shortly after the father began seeing the child post-separation, and by placing too much weight upon the evidence of the witnesses Ms L and Ms N in light of this other available evidence (ground 16);
· by overlooking or giving insufficient weight to the evidence of Mr S, who gave evidence which shows the mother has serious difficulties in her relationship with the child and is likely to have serious difficulties managing the child in the future (ground 18).
(iii) As to the factors in section 60CC:
· by failing to give sufficient weight to the fact that if the child remains with the mother there will be little opportunity for a relationship, if any, with both the father and the father’s family in Iran (grounds 3 and 4);
·
by placing significant weight on the fact that the child has been residing in Australia since 2003, which has occurred by effluxion of time, the litigation, and through no fault of the father
(ground 5);
· by failing to give sufficient weight to the fact that the child has been living mainly with the father since November 2008, in a settled environment, as well as having time with the mother, and is doing reasonably well as school under his father’s care (grounds 6 and 7);
· by having insufficient regard to:
a. the child’s strained relationship with his mother, which was problematic even on her own evidence;
b. the complete lack of family support the mother has in Australia, a factor not mentioned by the trial judge;
c. the very close relationship the child has with his father;
d. the impact on the child of the severance of the relationship with the father at an important time in the boy’s life (s 60CC (2)(a)) (grounds 9 & 13);
·
by failing to find, which was open to her Honour and should have
been found, that the child could have a significant and meaningful
relationship with the mother, even if he were to live in Iran
(ground 10);
·
by making orders which are unfair and unjust in that the father had
no control over what the mother did for five months after the
separation and took steps to enforce his parental rights as soon as he
reasonably could (ground 11); and
·
by focusing largely, if not solely, on the family violence allegedly
perpetrated by the father without making any corresponding
findings about violent behaviour by the mother towards the father
and without considering the likelihood of the violence reoccurring,
given there has been no complaint since separation and the parties
will be living on opposite sides of the world, and by failing to
consider whether the acts of family violence as established here
have a bearing on the best interests of the child (grounds 14 & 15).
Ground 8 was abandoned by the father in his summary of argument filed
20 December 2011.
In the notice of appeal the father sought that the orders made by Dawe J be set aside and the orders made by Federal Magistrate Lindsay on
5 November 2008, be reinstated. Those orders provided that the father have sole parental responsibility and the child live with the father. The father now seeks that the appeal be allowed and that this Court re-exercise the discretion in the matter so that the child lives with him.
The mother opposes the appeal and seeks that it be dismissed. The opposition by the mother to the appeal is supported by the Independent Children’s Lawyer.
Principles
Section 69ZT
As we have explained challenges were made to the treatment by the trial judge of the evidence and the proper application of s 69ZT of the Act to the evidence in this case.
The Full Court of this Court (Bryant CJ, Finn and Ryan JJ) in Maluka & Maluka (2011) FLC 93-464 considered the authorities relating to s 69ZT. Those proceedings involved allegations of sexual abuse and violence.
The Full Court in that case held that the trial judge’s description of the circumstances as “special” did not lead to an error in the determination that the circumstances were not “exceptional” as referred to in s 69ZT. Their Honours said:
121. Before us, it was submitted that where the subject matter of the hearing involved consideration of the termination of a child’s relationship with a parent, a trial Judge must apply s 69ZT(3) of the Act to the entire hearing. While it was acknowledged the sub-section is not expressed in mandatory terms, any other outcome was said to be erroneous.
122. The Full Court decisions in Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 adopt a common approach to s 69ZT. Namely, that the decision to apply sub-section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein…
123. We do not accept the father’s argument that the effect of s 69ZT is to establish a rule of general application that in cases where a court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the rules of evidence excluded by s 69ZT(1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victim partners why, notwithstanding an order is sought to terminate a child’s relationship with a parent, a judge might determine the risk issue by reference to ss 69ZT(1) and (2) of the Act.
We agree and would emphasise the discretionary nature of such a decision and the need to understand the complexity of many cases in the Family Court involving children.
It is a matter of some interest that in the re-hearing of Maluka by Coleman J (Maluka& Maluka [2012] FamCA 373), his Honour determined that the circumstances were exceptional within the meaning of s 69ZT(3). In that matter, counsel for the parties and the Independent Children’s Lawyer urged his Honour to adopt the same approach to all the evidence, that is either applying the provisions of s 69ZT or the Evidence Act. His Honour accepted this submission. Although the factual circumstances were somewhat different, part of his Honour’s reasons are instructive in this appeal and we refer to them with approval:
28.As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party.
…
30.In the Court’s view with section 69ZT(1), the difficulty, as suggested to Counsel during the course of debate throughout the morning, in the context of proceedings where allegations of family or domestic violence are a major issue is that, ultimately, the parties cannot know what, if any weight, is given to evidence which would otherwise be inadmissible until the delivery of judgment. Relying upon evidence which is admissible has the attraction that the proceedings are transparent. Findings of fact can be made upon evidence which, being admissible, if accepted, are “safe”. If based upon erroneously admitted, or rejected evidence, those findings can be overturned. Those findings of fact can be challenged in the time-honoured way. An appeal Court faced with such challenges can determine them in accordance with well-settled principles.
31.To the extent that discretionary challenges are raised which are not dependent upon overturning findings of fact, an appellate Court has the considerable advantage of knowing exactly what facts were found and that they were made in reliance upon evidence which was admissible. The task of then determining whether inferences drawn or conclusions reached in reliance upon those findings of fact exceeded the generous ambit of a reasonable exercise of discretion becomes more readily achievable.
32.It is a matter of significance within section 69ZT(3)(a)(i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M v M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.
…
37.Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact-finding functions.
38.As noted earlier, this aspect of the matter is not a one-way street. It might superficially be thought that to apply section 69ZT(3) would, to use the colloquial, raise the bar in terms of the onus which the mother bears. As suggested earlier, however, that is not entirely accurate and there is, in the Court’s view, an inherent danger in relying upon evidence which would be inadmissible, but for section 69ZT(1), that the mother may well be placed in a position where she has the benefit of findings of fact which are not sustainable on appeal. It could be asked rhetorically, what mischief would be likely to arise from the application of the rules of evidence? None has been suggested. That is unsurprising, as the provisions of the Evidence Act facilitate rather than impede the receipt of evidence probative of facts or issues in dispute, and guard against the receipt of “evidence” which could not safely or fairly do so.
In this case those difficulties have been avoided by the careful analysis of the evidence by the trial judge and her Honour’s “finding” that the father was violent to the mother.
As mentioned earlier, the meaning of “exceptional” was addressed in another context by the High Court in the decision of Baker v The Queen, in which Callinan J referred with approval at page 573 to Lord Bingham of Cornhill CJ in the case of R v Kelly (Edward) [2000] QB 198. This construction has been quoted in decisions of the Family Court including Segur v Segur [2010] FamCA 556, State Central Authority v Ustinov (No.4) [2008] FamCA 987 and Emmett & Emmett (No. 2) [2010] FamCA 57.
Her Honour’s determination that the circumstances of this matter were not exceptional was one requiring the exercise of discretion and, as will be seen later, in our view her determination was entirely within the proper ambit of that discretion.
However, this does not dispose of the challenges under s 69ZT. It was argued that in determining to apply s 69ZT(1) her Honour erred in the use to which she put evidence which, but for the application of the section, would not have been admitted.
The Full Court (Coleman, May and Le Poer Trench JJ) in Amador & Amador (2009) 43 Fam LR 268 considered how weight should be given to evidence admitted under sections 69ZT (1) and 69ZT (2), being evidence which would not otherwise have been admitted:
[65] If it were not for the provisions of sections 69ZT (1) and 69ZT (2) the document under discussion would not be admitted into evidence without the learned Federal Magistrate exercising a discretion based on other considerations. One of those considerations could have been the availability of Dr C for cross-examination on the content of the letter.
[66] It seems to us to follow from the provisions of section 69ZT (1) and 69ZT(2) that if a document is admitted to evidence which would otherwise not have been admitted, had all of the parts and divisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) been applicable to the case, it is incumbent on the trial judge to specify what weight, if any, has been given to the subject document and why.
We will deal with the arguments associated with the evidence and her Honour’s treatment of it under the same heading as summarised under the grounds heading.
Inadequacy of reasons
The other major complaint in the appeal was inadequate reasons. The Full Court of this Court (Nicholson CJ, Simpson and Finn JJ) in In the marriage of Bennett (1990) 14 Fam LR 397 considered the authorities relating to the adequacy of reasons. The test propounded in the Supreme Court of Victoria by Gray J in
Sun Alliance Ltd v Massoud[1989] VR 8 was described as “particularly useful” and is as follows:
The adequacy of 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 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 was rejected.
It has been necessary in this case to recite at some length her Honour’s reasons to demonstrate not the length of the reasons, but rather the depth of thought and explanation given in her Honour’s conclusions.
(iii) Discretionary decisions
This is an appeal from a discretionary decision. The well settled principles guiding such appeals are discussed in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513.
It is as well to recall the decision of the High Court of Australia in Gronow v Gronow at 519-20 where it was said by Stephen J that:
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 present case it should not have been done so at all.
Discussion
As to the admissibility and weight of the evidence of family violence:
As explained in the introduction to these reasons, the fundamental basis of the father’s appeal concerns the trial judge’s findings about family violence, together with the weight given to those findings, leading to the determination that it was in the best interests of the child to live in Australia and in the mother’s care. In oral submissions counsel for the father correctly submitted that the findings of family violence “permeated” the judgment.
Ground 1 of the father’s amended grounds of appeal asserts that her Honour erred by admitting or placing too much weight on the evidence received under s 69ZT, which was prejudicial and self-serving evidence relating to the allegations of family violence, and in finding the circumstances of the case were not exceptional within the meaning of s 69ZT, or alternatively by giving undue weight to such evidence, in the absence of corroboration and independent medical evidence.
The evidence the subject of this ground was various statements in the mother’s case relating to family violence claims, as contained in documents which formed part of her protection visa application. Counsel submitted these statements went unchallenged by the father, by virtue of the nature of the process of the trial and the judge ruling how the evidence would be treated. It was further explained that the father did not object to these statements, but rather he objected to the acceptance of the statements into evidence at all, and alternatively to the weight given to them by the trial judge.
It is important to deal first with the assertion that the trial judge erred by finding the circumstances of the case were not exceptional within the meaning of s 69ZT, before dealing with the weight attributed to evidence received under this section.
The father’s primary or overarching submission on this ground is that the circumstances were indeed “exceptional” and her Honour was in error in finding that they were not.
Admissibility – s 69ZT
The father submitted that the mother’s evidence about family violence should not have been admitted under s 69ZT because the circumstances of the case were “exceptional” within the definition set out in Baker v The Queen. He further submitted that the evidence was admitted over objections, raised by both the father and the Independent Children’s Lawyer, in affidavits and at trial. Numerous transcript references were provided in the summary of argument.
Counsel for the mother before us submitted that no error has been demonstrated with respect to the decision. She submits the facts of the matter were not “exceptional” within the meaning of s 69ZT(3), and that the trial judge had directed herself to the relevant law. It was submitted that while this was a “difficult” matter, difficult matters especially with regard to children’s issues come regularly before the Court, and that the circumstances were not “out of the ordinary, special or uncommon” as defined in Baker v The Queen.
Counsel for the Independent Children’s Lawyer submitted that although the Independent Children’s Lawyer had argued at the trial that the case was an exceptional one, particularly in relation to the use of overseas law, which we note was a factor expressly considered by the trial judge, he now submits that the decision reached was well within her Honour’s discretion.
The Independent Children’s Lawyer submits that no prejudicial or self-serving evidence was admitted and the allegations of family violence were proved on the balance of probabilities, in accordance with the common law rules of evidence. In this respect we were referred to her Honour’s finding of family violence at paragraph 93, where the judge states the finding was made on the balance of probabilities.
Throughout submissions on this ground of appeal, counsel for the appellant oscillated between admissibility and weight arguments. In respect of the s 69ZT argument, we note that in order to succeed, the appellant must point to evidence, which in accordance with the rules of evidence, would not have otherwise been admissible before the trial judge but for the provisions of
s 69ZT(1). In the alternative, an argument about weight may be propounded, or that the findings made by the trial judge were not open on the evidence before her. In any event, in order to appeal on a point of evidence, the appellant must demonstrate that the evidence was in fact relied on and how it was improperly used by the judge.
In oral submissions, counsel for the father submitted that after the s 69ZT ruling had been made, an atmosphere of “anything goes” arose with respect to evidence in the proceedings. It was also submitted that the trial judge erred in failing to adequately explain how the provisions of s 69ZT were applied and how the evidence affected her final decision.
It is as well to repeat parts of the trial judge’s reasons in relation to the evidence relevant to an explanation of how the provisions of the section were to be applied:
24.I do take into account the importance of some of the evidence, so far as it relates to various issues, and the nature of the subject matter, but I also take into account the provisions of subsection 69ZT(2), which gives the Court a discretion to give such weight, if any, as it thinks fit, to evidence admitted as a consequence of the provisions of the Evidence Act not applying.
25.To that extent, therefore, evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in the appropriate context and given the appropriate weight, depending upon who is expressing the opinion and on what basis, and the establishment of the necessary background facts.
26.I am therefore, at this stage, not proposing to make any blanket order which requires the facts to be established with evidence required in accordance with the Evidence Act, but will proceed to hear the matter pursuant to the provisions of section 69ZT(1).
It was said for the mother that having made the decision to proceed under
s 69ZT(1), the trial judge was well aware of the necessity for her to exercise caution with regard to certain types of evidence. By example, we were directed to her Honour’s statement at paragraph 110, that the US State Department report on Iran was “received into evidence as a document which was considered by the delegate when granting the mother’s Protection Visa”. On this basis, the mother’s position was that there can be no valid objection as to how this piece of evidence was used by the judge.
The Independent Children’s Lawyer submitted that the trial judge reminded herself that she had a discretion to give appropriate weight to the evidence admitted as a result of the section. It was submitted that it was apparent that
her Honour took particular care in dealing with issues such as the treatment of the US State Department report, by noting that there was opposition to the receipt of the report as evidence of the facts contained therein. Counsel similarly referred us to paragraph 110 of the reasons.
Counsel for the Independent Children’s Lawyer submitted that the trial judge was quite entitled to take into account both the fact that the mother was in receipt of a protection visa, and the reasons the delegate of the Commonwealth of Australia had found to support that finding. Noting his earlier objection to the admission of the evidence, the Independent Children’s Lawyer submitted that in any event the Court made no use of the US State Department report as evidence of the facts contained therein.
The Independent Children’s Lawyer suggested that the report was in fact not considered by the trial judge in relation to the family violence allegations, but rather in relation to the issue of the parents’ capacity to travel between Iran and Australia. The report is discussed at paragraphs 110 and 111, which fall under the heading, “Parents’ capacity to travel between Iran and Australia”, which extends from paragraph 96 to 115 of the reasons.
It was said that the US State Department report was considered relevant by her Honour only insofar as it supported the mother’s position that she would not return to Iran, by giving weight to the delegate’s finding that the mother had a well founded fear of persecution. This position of the mother correctly influenced her Honour’s consideration of the issue of the parents’ capacity to travel between Iran and Australia, which was pivotal in the determination of one of the significant issues identified in the case (the maintenance of a meaningful relationship with both parents).
While her Honour made a finding that the mother had a strongly held view that it was not safe for her to return to Iran, it was the delegate’s finding, not the trial judge’s, that the mother’s fear of persecution and return was reasonable.
It is clear, in our view, that the trial judge did not rely in any way on the US State Department report as a basis for her findings of family violence against the mother as perpetrated by the father. The only use the trial judge made of the document was that it formed part of the information before the delegate in his decision-making process. In this respect, her Honour satisfied the requirement set out in Amador & Amador which explains that when weight is to be given to evidence admitted under s 69ZT which would not otherwise have been admitted, it must be specifically explained how it is used.
The trial judge’s clear finding of family violence is in fact expressed earlier in the judgment at paragraph 93, at the conclusion of a section headed “Family Violence”. In this section, no reference is made to either the State Department report specifically, or to the evidence of the delegate generally. Statements of the purported “self-serving” nature, which supported the mother’s position about family violence perpetrated by the father, were received by the Court from many other sources including a general practitioner, the police and the expert witness psychologist, not just the delegate. It was the evidence of these other sources which was expressly considered by the trial judge in the reasons for her finding of violence.
In our view, the only evidence which would possibly require s 69ZT in that it would not have otherwise been before her Honour had the rules of evidence applied, is the US State Department report on human rights in Iran. We observe that there may have been other arguments that this document was admissible in any event.
It was not necessary for her Honour to rely on such evidence in the context of the family violence issue. The most telling piece of evidence was the father’s admission that he had attended with the mother on 27 June 2005 to see a doctor, when the mother told the doctor the father had hit her on the nose and cheek the previous night with his fist. The doctor’s notes appear in a notes history document from the General Practice P, included as an annexure to the mother’s affidavit sworn 2 April 2007. In cross examination, the father was questioned about the visit to the doctor on 27 June 2005 by counsel for the mother and counsel for the Independent Children’s Lawyer. His evidence was that in his presence, the mother told the doctor the father had hit her. He stated he did not know how she had sustained the facial injuries, and had denied to the doctor that he had hit her, suggesting she had perhaps hit her face on a door or fallen on the floor. The father agreed that the parties had had a loud argument on the night of 26 June 2005.
We do not accept the father’s submission that the trial judge did not adequately explain in her reasons, how the provisions of the section were applied and how the evidence admitted would be treated. The reasoning of her Honour in respect of how she intended to apply s 69ZT and treat the evidence is clearly within the meaning of “ascertainable” as set out in In the Marriage of Bennett.
Weight
Turning to the weight given to the evidence of family violence, the father submitted first that undue weight was given to such evidence in the absence of corroboration and independent medical advice. Counsel referred to the record of hospital attendance dated 1 March 2007 (Annexure A to the mother’s affidavit of 14 March 2007), the evidence of the General Practitioner, and the reports of psychologists Ms N and Ms L (trainee).
We note that the hospital attendance record was not specifically referred to by her Honour in the reasons pertaining to family violence at paragraphs 82 to 95. The evidence of the General Practitioner appears to have been relied on only insofar as it recorded that the mother had attended on him in June 2005 and, in the presence of the father, had told him that the father had hit her (paragraph 90). Her Honour made the finding of family violence at paragraph 93, “considering the evidence of the mother, together with the evidence of Ms [N] and Ms [L]…”.
Counsel for the mother submitted that the father’s objections to these pieces of evidence would not have been upheld even if s 69ZT(1) had been determined not to apply, and in general, would not have altered the result. In particular matters contained in the hospital attendance record were not in dispute and the report was admissible as evidence that the mother had made a complaint. Counsel for the Independent Children’s Lawyer made a similar point with respect to the General Practitioner’s evidence, that the father did not dispute that the doctor accurately recorded what was said at the consultation. It was further explained that Ms N and Ms L gave evidence at the trial and were cross examined.
In our view the trial judge placed no more weight on these pieces of evidence other than as evidence supporting the mother’s case as to the family violence allegations. Evidence which supports or corroborates one party’s position is indeed intended to assist the fact-finder and as such, her Honour was entitled to give it some weight. It is clear that no improper weight was placed on either the evidence of the hospital department report, or of the General Practitioner. The
trial judge neither said nor implied that these documents were independent evidence of the mother’s allegations, but simply that they supported her allegations.
As was correctly identified by counsel for the mother, Ms N and
Ms L, whose evidence her Honour may be said to have placed more reliance on, were witnesses at the trial and able to be cross-examined. As such, it is difficult to understand why the trial judge was not then entitled to rely on and place weight on their evidence as she did.
The father also submitted that the trial judge placed too much weight on the mother’s evidence in relation to the family violence issues (ground 12). He compared the inconsistencies in the mother’s evidence (references to both affidavits and oral testimony) with the father’s denials of the mother’s allegations (in both his affidavits and oral testimony).
In response, counsel for the mother submitted that the trial judge’s task in weighing the evidence involved making findings as to credit, in circumstances where the parties’ evidence on the topic was “diametrically opposed”. We were referred to the trial judge’s findings of the father’s evidence as unconvincing, at paragraph 92, in relation to his assertion that the mother had hit her face on a door in June 2005. It was submitted that it was open to the trial judge, having seen the witnesses, to come to a finding as to the father’s credit and consequently about the issue of family violence. We accept this submission and observe that her Honour performed a balanced consideration of the submissions from both parties on the issue. Her Honour made the finding at paragraph 73 “notwithstanding some of the inconsistencies which the father’s counsel highlighted”.
Finally the father submitted in ground 17 that her Honour erred by failing to give reasons for the conclusion that the mother’s view about the situation in Iran was reasonable, based on the US State Department report, which was the only evidence before the Court dealing with that issue.
The mother submitted that the evidence was admitted on a limited basis and that basis was clearly explained by the trial judge.
As we have already explained, the trial judge did not make a finding that the mother’s view about the situation in Iran was reasonable. That was instead the finding of the delegate, who had regard to the report in making that finding. The extent of the trial judge’s finding was merely that the mother did in fact hold a strong belief that it was unsafe for her to return. We accept the mother’s submission that the trial judge dealt with the US State Department report evidence appropriately and see no merit in this ground of appeal.
Weight placed on the evidence of witnesses Dr T, Ms B, and Mr S
Ground 16 asserted that the trial judge erred by failing to evaluate, by mentioning or considering, the evidence of the witnesses Dr T and Ms B, which the father contends is crucial, as it related to the observations made of the father’s relationship with the child shortly after the father began seeing him post-separation. It is also submitted that the trial judge erred by placing too much weight upon the evidence of the witnesses Ms L and Ms N in light of this other available evidence.
It was complained in the summary of argument that the trial judge placed much emphasis on the evidence of the psychologist witnesses Ms L and Ms N about the difficulties in the father’s relationship with his son and the issue of family violence, however the judge failed to mention or consider the evidence of the witnesses Dr T and Ms B.
Counsel for the father submitted that the behavioural problems of the child were not demonstrated to Dr T and Ms B, who were court ordered supervisors of the child’s time with the father. Counsel sought to connect with this the submission that it was only with the mother that the child displayed behavioural problems. The corollary to be inferred being that only with the mother does the child have a strained relationship.
The father further complained that the trial judge relied on the evidence of
Ms N wholly, whereas only one portion of her evidence had been admitted. We do not accept this submission. The trial judge only admitted one excerpt of
Ms N’s evidence, as the father concedes.
The mother submitted that the evidence of Dr T and Ms B represented merely “snapshots in time”, which had to be and were, weighed accordingly. The father denied this characterisation and suggested instead their evidence related to an extended amount of time. The mother’s position is that the trial judge was entitled to place the emphasis that she did on the evidence of Ms N and Ms L.
The Independent Children’s Lawyer supported the mother’s submissions. In considering the weight of each party’s witnesses, it was submitted that
Ms N was a professional psychologist (and Ms L a trainee) with considerable expertise in dealing with children and issues of family violence. He submitted this was in contrast to the witnesses Dr T and Ms B. Although Ms B was a social worker with 15 years experience, she was called by the father in her capacity as a court ordered supervisor. According to the Independent Children’s Lawyer, these witnesses were merely witness to an appropriate relationship between the father and the son. The value of their evidence beyond what they actually witnessed was questionable, as neither was in a position to give evidence about the basis of the child’s behaviour following separation or the nature of the relationship with the father, beyond reporting what they actually observed.
The underlying concern revealed by this ground of the father’s appeal is a failure to recognise or give weight to the good relationship between the father and the child. The mother submitted that the fact the child and the father had a good relationship following separation was not a fact in dispute. The Independent Children’s Lawyer submitted that the trial judge was at all times, conscious of the good relationship between the father and the child, by reference to paragraphs 140, 159 and 170 of her Honour’s reasons.
The trial judge did not, as the father suggests, fail to mention the evidence of Dr T and Ms B. At paragraph 17 her Honour noted that both were witnesses called by the father and had observed him with the child. In our view, her Honour did not err by failing to evaluate their evidence. According to Dr T’s affidavit sworn 4 April 2007, his evidence was limited to observations of the father’s supervised time with the child on three separate weekend occasions over the course of one month in March to April 2007. Similarly, according to Ms B’s affidavit sworn 4 April 2007, her evidence was limited to observations of the father’s supervised time on only two consecutive weekends in
March 2007. The evidence of both witnesses was not expert, rather it was limited to observations of the relationship between the child and the father, which confirmed the good relationship. That this was a good relationship was not in dispute, and was accepted and reiterated by the trial judge.
Accordingly, the trial judge cannot have erred in placing the weight she did on the evidence of Ms N and Ms L. They were expert witnesses whose evidence was of more significant breadth and depth than that of Dr T and Ms B. Her Honour was therefore entitled to treat their evidence accordingly. The evidence of Dr T and Ms B, as evidence confirming facts the trial judge already accepted to be true, would not have affected the final decision leading to the orders made. We do not consider the trial judge erred in her treatment of the evidence of each of these witnesses.
Ground 18 of the father’s appeal is that the trial judge erred by overlooking or giving insufficient weight to the evidence of Mr S, which showed the mother has serious difficulties in her relationship with the child and is likely to have serious difficulties managing the child in the future. Counsel for the father submitted that Mr S’s evidence was not referred to by the trial judge, other than in passing and therefore did not form part of the reasoning process.
It was said for the mother that nothing turned on this issue, because the
trial judge had acknowledged and taken into account the difficulties in the relationship between the child and the mother. That is, there was no finding by her Honour contrary to the evidence of Mr S. We were also referred to paragraphs 136, 137, 138 and 143 which indicate that the trial judge did consider Mr S’s evidence because of reference to the evidence of various witnesses about the specific difficulties of that relationship, although he was not named directly other than in paragraph 22.
Counsel for the mother also suggested that Mr S supported the view of Mr M, whose report and evidence were largely accepted by the trial judge, which was that the child’s behaviour settles after a period with the mother. The Independent Children’s Lawyer submitted that Mr S’s evidence was equivocal, and the witness himself conceded he did not have any expertise in family dynamics, particularly cases involving domestic violence.
We find that Mr S’s concession that the issues were beyond his level of expertise rendered his evidence forensically weightless. This was a concession accepted by counsel for the father before us. In any event, had the trial judge accepted his evidence at its highest, similar to the evidence of Dr T and
Ms B, nothing can turn on this issue because the trial judge had already made findings in the father’s favour. Her Honour clearly recognised in paragraph 143 and 144 that the mother had some not insignificant difficulties in her parental relationship with the child. We find no substance in these grounds of appeal.
As to the factors in section 60CC
The remaining grounds of appeal relate to the trial judge’s determination of what was in the best interests of the child, by reference to the considerations in
s 60CC. As explained above, the trial judge expressly dealt with each of the considerations in the reasons at paragraphs 121 to 167.
Grounds 3 and 4 of the father’s appeal assert that the trial judge erred by failing to give sufficient weight to the fact that if the child remains with the mother there will be little opportunity for a relationship, if any, with both the father and the father’s family in Iran. The consideration of a meaningful relationship with both parents is contained in s 60CC(2)(a).
It was submitted that “realistically speaking”, once the father returns to Iran the child will not be likely to see him except via the internet as it is unlikely the father will be able to return to Australia, and the mother herself refuses to return to Iran at all. It was submitted this necessarily meant the child would be denied contact with his extended family in Iran.
Counsel for the father submitted the trial judge did not give sufficient consideration to this practical outcome, and did not give enough weight to the effect of the Iranian’s government imposed travel limitations and contractual obligations on the father related to the government scholarship, which were recorded by her Honour at paragraph 104.
It was also submitted for the father that the trial judge’s finding that the mother will continue to foster interest in Iranian culture and extended family was not a finding supported by the evidence. Section 60CC(3)(g) contains a consideration of the child’s cultural background.
The mother’s submissions emphasised that the trial judge was presented with two completely opposite proposals as to the residence of the child and the consequences for his future. Counsel submitted that this consideration of the likelihood of the child having a relationship with his father and extended family, and a connection with Iranian culture, was clearly at the front of the trial judge’s mind in her Honour’s consideration of what the situation would be like if the child were to live with the mother. Counsel referred to paragraph 167 of the reasons, where her Honour stated she was satisfied, based on the previous practices of the mother and the father, that the mother would “continue to encourage his interest in, and connection with, the Iranian culture and his extended family…”. In the absence of further submissions from the father to support a contrary position, we consider her Honour’s finding in relation to s 60CC(3)(g) was supported by the evidence.
The Independent Children’s Lawyer acknowledged that a consequence of the trial judge’s decision was that the child is unlikely to spend significant time with his father, or with his extended family relations in Iran. He emphasised however, that this was an inevitable result of the decision which the parties were asking the Court to make. In his view, either alternative would involve practical difficulties in the child having a relationship with the non-resident parent. Counsel referred us to paragraphs 113 to 115 of her Honour’s reasons where she acknowledged this impasse, and found that “loss of a meaningful relationship is only less likely if the father takes appropriate steps to obtain approval from the Iranian Government and the Australian Government for regular visits to Australia”.
We were also referred to the custody order the father had obtained in Iran. The Independent Children’s Lawyer submitted that because of that order, if the child were to live in Iran, the father would have sole control over his life and in particular, whether the child sees the mother or the extended family on the maternal side. We were referred to paragraphs 68, 97 and 98, in which the trial judge referred to the Iranian court order and its effects. We note here the reference to Iranian lawyer Mr H’s evidence at paragraph 98, who agreed that “whilst the mother and father remain married, the father would have to give permission for the mother to leave Iran if she returns”. Finally, counsel submitted that the orders of Australian courts are not recognised in Iran, however by making the orders the Court did, an Australian court could maintain some degree over the control of the situation.
In relation to these grounds, we consider that the father, in asserting that the reality of the situation is such that the he will not be able to return to Australia, has overstated the evidence before the trial judge. While her Honour acknowledged the difficulties associated with the father’s return to Australia and did not find that he certainly would be able to return, the evidence disclosed to her Honour the possibility that the father could take steps to arrange, with the Iranian government and the Australian government as discussed in paragraphs 107 and 115, to return to Australia for the purposes of visiting the child.
In the context of the circumstances of this case where the only available options to the trial judge were orders which would necessarily be detrimental to the meaningful relationship of the non-resident parent with the child, and given her Honour’s clear emphasis on considering an arrangement which would best reduce this possibility, we cannot accept the father’s assertion that her Honour placed insufficient weight on the consideration of the practical reality of little opportunity for a meaningful relationship between the father and the child if the child lived with the mother. The consideration in s 60CC(2)(b) requires consideration of a meaningful relationship with both parents, and her Honour properly focused on finding a result which was most likely to potentially benefit the child’s relationship with both his mother and his father, not just the father.
Ground 5 is that the trial judge erred by placing significant weight on the fact that the child has been residing in Australia since 2003, which has occurred by effluxion of time, the litigation and in any case through no fault of his own. It was submitted that during that time, the father has maintained a close and loving relationship with the child which would be severed by the orders, contrary to the child’s interests, in particular the child’s wishes.
In response the mother said that this ground takes the appeal no further. Counsel submitted that in the circumstances it was not an issue for the trial judge to determine why events had occurred as they had – it was the parties who brought the child to Australia together.
The Independent Children’s Lawyer submitted that while the father may feel aggrieved because with the passing of time the prospects of a favourable decision for him have dissipated, this is unfortunately a consequence of the length of time this matter has taken to resolve.
We consider the trial judge was correct in placing emphasis on the child, his age, the years he has lived in Australia and that he is now settled.
Grounds 6 and 7 assert that the trial judge erred by failing to give sufficient weight to the fact that the child had been living mainly with the father since November 2008, in a settled environment, as well as having time with the mother and was doing reasonably well at school under the father’s care.
The mother submitted the fact that the child was settled into school and doing well was a proper factor considered by the trial judge. It was further submitted that orders sought by the father would remove the child from that settled environment and force him to undergo an ‘upheaval’, especially with respect to the unknown factors which would arise, as foreshadowed by her Honour at paragraph 170 of the reasons.
Counsel for the Independent Children’s Lawyer pointed out that the child had been primarily living with the father as a result of a court order. The Independent Children’s Lawyer accepted that the child’s environment was settled and he was, in general terms, coping very well with the situation. It was his submission that removing the child to Iran would not be in the child’s best interests, because he would be taken out of this settled environment, obliged to change schools, and to continue his education in a different language with which he has limited familiarity.
These submissions are clearly correct.
Grounds 9 and 13 state that the trial judge erred by having insufficient regard to the child’s strained relationship with the mother, the lack of family support the mother has in Australia (a factor he says was not mentioned in the trial judge’s reasons), the close relationship the child has with the father, and the impact on the child of the severance of the relationship with the father at an important time in the child’s life. Counsel for the father also submitted the trial judge had failed to sufficiently take into account the child’s wishes. Section 60CC(3)(a) contains a consideration of “any views expressed by the child”.
As we have already dealt with the father’s concerns regarding the weight the trial judge gave to considerations of the child’s strained relationship with the mother and the close relationship with the father, and as he raises no different arguments in these grounds of appeal, we do not propose to further address these repeated arguments.
The remaining factors in these grounds then are the mother’s lack of family support in Australia, and the child’s wishes. It was the father’s submission that the mother has a ‘complete lack of support’ in Australia, and that the child has expressed wishes on two occasions to live with the father.
The mother’s submission was that all of the matters listed by the father in these grounds were sufficiently considered by the trial judge.
The Independent Children Lawyer’s view, correctly, was that all the matters had been considered by the trial judge, and the appellant is therefore merely
re-arguing matters already raised before the Court. It was further said, correctly, that these matters needed to be balanced against other factors such as family violence, the length time spent in Australia and the now settled environment in which the child lives.
In respect of the child’s wishes, counsel for the Independent Children’s Lawyer referred us to paragraphs 124 to 138 of her Honour’s reasons. In those paragraphs, under the express heading “(a) any views expressed by the child…”, the trial judge set out at length the evidence of the family consultant Mr M regarding the child’s wishes. At paragraph 138, her Honour makes a finding on the issue, based on the evidence of Mr M and “the other psychologist”, who we interpret to be Mr S who at the trial accepted much of Mr M’s report, that the child’s wishes were not to be seen as a determinative factor.
The Independent Children’s Lawyer supported the conclusion of the trial judge, based on the view of Mr M, that the child is highly manipulative and considers his expressed wishes need to be seen in the context of which parent he is residing with at a given time. That the child is manipulative in this way was conceded by counsel for the father in oral submissions before us.
Having provided no further support for the argument that her Honour failed to sufficiently consider the child’s wishes, which she clearly in fact did, we consider these grounds of appeal to have failed.
Ground 10 is that the trial judge erred by failing to find, which the father says was open to be found, that the child could have a significant and meaningful relationship with the mother, even if he were to live in Iran. The father submitted that the mother’s “embargo” on Iran is a self-imposed one, as opposed to the father’s position, because she has an Australian passport and there is nothing to stop her travelling freely to and from Iran.
The mother submitted that the trial judge acknowledged there were significant difficulties in the child maintaining a relationship with the father if the child were to remain resident in Australia, and made a finding open to her on the evidence of Iranian lawyer Mr H and migration agent Mr G, that on balance, there was a greater chance of the father being able to travel to see the child in Australia, than of the mother travelling to Iran and actually being able to see the child there.
The Independent Children’s Lawyer submitted that the trail judge did not fail to make the finding that the child could have a meaningful relationship with the mother notwithstanding the child living in Iran. Rather when comparing the options suggested by the mother and by the father, her Honour found at paragraph 171 that “although there are significant difficulties in maintaining a relationship with his father if he were to remain resident in Australia, there is a greater possibility of this than the mother ever visiting Iran again”. It was submitted that the essence of the trial judge’s finding was that there was a greater prospect of the child having a relationship with both of his parents if the child remains in Australia than if he returns to Iran. The Independent Children’s Lawyer says this was a conclusion consistent with the evidence.
The Independent Children’s Lawyer further noted that at one stage there was a proposal from the father that the child could travel to Australia in the company of relatives. This was acknowledged by the trial judge at paragraph 112. It was submitted the proposal was not considered further by her Honour because it was ultimately not pursued by the father at the trial. In response, counsel for the father submitted this was pursued. We were referred to the transcript of proceedings, where on 22 November 2010, counsel for the Independent Children’s Lawyer sought to discuss that father’s proposals about the child during the father’s cross examination. Counsel began questioning the father about the cost of flights to Australia from Iran and the logistics of travel within Iran. As it was 4.30pm, the questioning went no further.
The following day on 23 November 2010, counsel for the Independent Children’s Lawyer returned to the issue and asked the father what was he offering or suggesting the mother do in the event he was permitted to go back to Iran with the child. The father responded that if the mother decided to stay in Australia he was “quite happy” for her to travel to see the child during the school holidays and then added he didn’t mind her going to Iran to see the child at any time. He also said that if she decided to return to Iran, then a new agreement could be reached starting with equal custody of the child.
It can be seen that there is no substance in this ground.
Ground 11 asserts that the trial judge erred by making orders which were unfair and unjust, in that the father had no control over what the mother did for five months after the separation and took steps to enforce his parental rights as soon as he reasonably could. It was explained he had no notice of the mother’s protection visa application and has no choice but to return to Iran when his visa permitting his stay in Australia expires.
The mother submitted this was in effect a claim of unfairness on the father’s behalf. She responded with a claim of unfairness on her behalf, when the father obtained a custody order in Iran, which on the evidence of Mr H would provide the father with a significant ability to control the return of the child to Australia if he were to visit the father in Iran. The mother stated she had no notice of that decision, a position accepted by the trial judge at paragraph 68 of the reasons.
It was submitted that in any event, this argument was of little significance in reviewing the overall orders. This was echoed by the Independent Children’s Lawyer, who submitted the ground made general assertions only. It is certainly correct that these submissions do not reveal a ground of appeal.
Finally grounds 14 and 15 of the father’s appeal are that the trial judge erred by focussing largely, if not solely, on the family violence allegedly perpetrated by the father without making any corresponding findings about violent behaviour by the mother towards the father, and without considering the likelihood of the violence reoccurring, given there has been no complaint since separation and the parties will be living on opposite sides of the world.
It is also suggested the trial judge erred by failing to consider whether the acts of family violence as established have a bearing on the best interests of the child. It was submitted for the father that according to In the Marriage of G (1999) 122 FLR 209 (at 215-219, 222) the Court must consider whether acts of family violence have a bearing on the interests of the child, and according to JG v BG (1994) FLC 92-515, must also consider what effect family violence has had and whether those effects necessarily be repeated. The father submitted that these considerations were not carried out by the trial judge.
In regard to the father’s suggestion that her Honour erred by not making any findings about his allegations of family violence towards him by the mother, the mother submitted that it was implicit, by making the findings she did about the father’s family violence, that the trial judge specifically rejected the father’s allegations and additionally, that such findings were well open on the evidence. The mother also submitted that the father’s assertion the trial judge failed to consider the effects of the acts of violence on the child was not borne out, with reference to her Honour’s finding at paragraph 88 that the violence had occurred, from time to time, in the presence of the child.
In relation to the father’s allegations of family violence by the mother, the Independent Children’s Lawyer submitted that the Court acknowledged those allegations at paragraphs 47 and 48, however the father produced no evidence to support his claim and as such, no express findings could have been made.
Importantly the Independent Children’s Lawyer also noted that the father’s assertion on appeal, that the trial judge erred by focussing on the mother’s allegations of family violence, appears to overlook the more pernicious aspects of family violence. Counsel submitted that not the least of the concerns in family violence matters is the issue of what kind of role modelling the perpetrator of family violence demonstrates to a child. Further, there is no doubt that abuse of a parent in the presence of a child is in effect violence committed against the child with the well known damaging effects to the child.
The submissions of the Independent Children’s Lawyer are soundly based and we would reject this ground.
In general terms, the mother submitted this Court should avoid an overly critical analysis of the reasons of the primary judge, in accordance with appellate principles outlined by Kirby J in the High Court decision of
AMS v AIF(1999) 199 CLR 160 as cited by the Full Court of this Court in Mazurka & Mazurka [2011] FamCAFC 68 at paragraph 103.
The Independent Children’s Lawyer for his part re-emphasised his closing submissions at the trial, that whilst he acknowledged there were arguments to be made on behalf of the wishes of both parents, ultimately it was in the best interests of the child to remain in Australia with his mother. In the Independent Children’s Lawyer’s opinion, a critical factor in reaching this decision was the fact that the child was then aged 12 years old, was soon to commence secondary school and had spent the last eight years of his life, and all of his schooling, in Australia. The Independent Children’s Lawyer recognised that both parents have a great love and affection for the child and that the child was in a very difficult situation, experiencing some challenges with both parents from time to time.
Conclusions
In our view, there are no grounds to allow the appeal. The decision was based on the evidence before Her Honour and within the discretion available to a trial judge.
Costs
Each party submitted that if the appeal were successful, costs certificates would be sought. Alternatively, if unsuccessful, the appellant submitted he would resist an order for costs. Counsel for the mother and the Independent Children’s Lawyer submitted they would not be seeking costs if the appeal was unsuccessful.
In the difficult circumstances of this case we do not consider an order for costs against the unsuccessful appellant father to be appropriate. We make no order as to costs.
I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 25 May 2012.
Associate:
Date: 25 May 2012
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