Khatri & Khatri
[2024] FedCFamC1A 152
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Khatri & Khatri [2024] FedCFamC1A 152
Appeal from: Khatri and Khatri [2024] FCWA 35 Appeal number: NAA 68 of 2024 File number: PTW 7194 of 2013 Judgment of: MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the appellant seeks to adduce photographs of the respondent and immigration application documents to discredit the respondent – Application of CDJ v VAJ (1998) 197 CLR 172 – Where it is not established that if the evidence was before the primary judge the outcome is likely to have been different – Application dismissed.
FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Where the appellant pleads two grounds of appeal with numerous overlapping sub-grounds which did not elucidate the appellant’s complaint – Bias – Weight challenges – Factual errors – Failure to consider relevant material – Where the appellant disputes the primary judge’s finding that he engaged in coercive and controlling family violence – Respondent and Independent Children’s Lawyer oppose the appeal – Grounds of appeal are incompetent and misconceived – Decision of the primary judge not unreasonable or unjust – No error of fact or law established – Appeal dismissed – No order as to costs.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 69ZN
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 36
United Nations Convention on the Rights of the Child art 9
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1
Bartram & Marsden [2023] FedCFamC1A 207
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Conomy v Maden [2016] WASCA 30
De Winter and De Winter (1979) FLC 90-605
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
F v L (Child Arrangements Order: Relocation) [2018] 4 WLR 141; [2017] EWCA Civ 2121
Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260
FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v the King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Obando & Obando [2024] FedCFamC1F 461
Pachris & Tajir (No 2) [2022] FedCFamC2F 1296
Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2
Re H-N [2022] 1 WLR 2681; [2021] EWCA Civ 448
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Number of paragraphs: 123 Date of hearing: 30 July 2024 Place: Heard in Perth, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Worth Solicitor for the Respondent: Platinum Legal Solicitor for the Independent Children’s Lawyer: Ms Mansfield, Wayne Dawkins Lawyers ORDERS
NAA 68 of 2024
PTW 7194 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KHATRI
Appellant
AND: MS KHATRI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Appeal NAA 68 of 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Khatri & Khatri has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ:
INTRODUCTION
On 29 February 2024, a judge of the Family Court of Western Australia pronounced final orders between the appellant father, Mr Khatri, and the respondent mother, Ms Khatri, in respect to their now 11 year old child, X (“the child”). Those orders provided that the respondent have sole parental responsibility and that the child live with the respondent and spend no time with the appellant. The appellant was also restrained from approaching within 100 metres of the respondent or child and from communicating with the respondent or child.
Those orders were made in circumstances where the primary judge found that the respondent had been the subject of a pattern of coercive and controlling conduct, including specific acts of physical violence, perpetrated by the appellant, together with serious threats made by the appellant to the respondent and members of her family.
The Amended Notice of Appeal filed on 22 April 2024 sets out a number of grounds and sub-grounds that contend the primary judge was biased against the appellant, that the primary judge made a number of factual errors and that his Honour did not apply appropriate weight to the evidence before him. The respondent and Independent Children’s Lawyer oppose the appeal.
For reasons which follow, we have determined that the appeal is without merit and must be dismissed.
BACKGROUND
The background of this matter has been extensively canvassed by the primary judge and we will not here repeat his Honour’s detailed account, save to note the following.
The appellant was born in 1980 and is currently 44 years old. The respondent was born in 1985 and is currently 39 years old.
The parties commenced a relationship in mid 2006. The appellant was divorced and had a daughter, named Ms B, from his first marriage.
The parties married in Country C in 2007, migrated to Australia in 2010, and in 2013, the child subject of these proceedings was born. The first major separation occurred in mid 2013, shortly after the child was born.
In 2016, the parties divorced.
In 2017, the parties remarried.
In 2021, the parties separated on a final basis. Upon separation, the respondent removed the child from the family home and moved to South Australia where she has since remained. The child last spent time with the appellant in February 2021.
The orders made by the primary judge were based upon his findings that, during the course of the parties’ relationship, the respondent had been subject to a pattern of coercive and controlling conduct which included pressure to terminate pregnancies and actual physical violence. The primary judge further found that the pattern of controlling and coercive conduct continued after the separation and included behaviour that the respondent characterised as stalking and the making of serious threats to the respondent and members of her family. The primary judge found that the child had been directly and indirectly impacted by exposure to family violence and, in circumstances where the respondent was in fear of the appellant, that the child would be vicariously impacted by orders requiring the respondent to facilitate the child spending time with the appellant.
APPLICATION TO ADDUCE FURTHER EVIDENCE
By way of an Amended Application in an Appeal filed on 30 April 2024, the appellant sought to adduce fresh evidence in the appeal, being:
·Six photographs of the respondent taken prior to 2009 and after 2009; and
·Immigration application documents.
The appellant abandoned an application to adduce evidence from two retail outlets located in Country C in circumstances where the appellant had not obtained affidavits from those retail outlets.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) empowers the Court to admit further evidence on appeal. The principles for when the Court will exercise its discretion to admit fresh evidence in an appeal are well-known, having been set out by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”).
For the purpose of considering the appellant’s Amended Application in an Appeal, the following two principles are relevant: first, ordinarily further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained at the time of the hearing (CDJ v VAJ at [55]), and second, further evidence will not be admitted “merely because it is useful” (CDJ v VAJ at [113], emphasis in original). The relevant test is whether, if the further evidence had been tendered before the primary judge, it “was likely to have produced a different result” (CDJ v VAJ at [149]).
Leaving aside the fact that, in our view, the appellant has provided an inadequate explanation as to why, with reasonable diligence, he could not have obtained the evidence prior to the trial, we have rejected the appellant’s Amended Application in an Appeal because we are not satisfied that the evidence would have had any bearing on the outcome of the trial.
In that respect, the appellant sought to admit the photographs of the respondent’s face to discredit the respondent’s assertion that she had been assaulted by the appellant in 2009. According to the evidence of the respondent, the appellant assaulted her, leaving a “permanent raised bump” on her face (respondent’s affidavit filed 13 April 2022, paragraph 34).
We reject the appellant’s application for two reasons:
(1)Firstly, the photographs are of no probative value because the angle at which the photographs are taken, and the lack of clarity, does not indicate whether the respondent did or did not have a bump on her face at the time the photographs were taken; and
(2)Secondly, the question as to whether the respondent did or did not sustain an injury in 2009 was irrelevant to the determination of the primary judge that it is likely the respondent had been assaulted in 2009. This was in circumstances where the primary judge indicated the evidence was not such that he was in a position to determine the nature of the assault, nor the injuries suffered by the respondent.
We also reject the appellant’s application to adduce evidence relevant to the parties’ migration to Australia in 2009 because we are not satisfied that the admission of those documents, which are emails sent in May 2009, would have had any bearing on the outcome of the proceedings. Specifically, the documents include an email from the respondent sent in May 2009 in which she requested that an immigration officer process only her and the appellant’s application to migrate to Australia, and to disregard the application of the appellant’s daughter from an earlier relationship. This was in circumstances where the respondent contended the appellant did not, at that time, have full custody of Ms B.
That email is entirely consistent with the respondent’s evidence set out at paragraphs 33 and 34 of her affidavit filed on 13 April 2022 in which the respondent confirmed that she made such a request to “the Visa officer requesting him to process a couples’ visa without [Ms B] as it was impossible to get [Ms B’s] mother [sic] consent”. In other words, the email sought to be adduced in the appeal is confirmatory of the substance of the evidence set out in the respondent’s affidavit and, accordingly, the admission of the emails would not have impacted the outcome of the proceedings.
For these reasons, the appellant’s Amended Application in an Appeal to admit further evidence was dismissed.
GROUNDS OF APPEAL
The appellant’s Amended Notice of Appeal filed on 22 April 2024 reduced his grounds of appeal to Ground 2 and Ground 4. Those grounds were, however, broken down into a number of sub-grounds which were extremely verbose and discursive. The Summary of Argument filed 20 May 2024 was almost identical to the Amended Notice of Appeal and did not assist in clarifying the appellant’s complaints against the orders made by the primary judge. Subject to those qualifications, the grounds of appeal can be broadly summarised as follows:
·Ground 1 was abandoned.
·Ground 2, which is the first ground that is pressed, is a general introductory paragraph to following sub-grounds of appeal that contend that the primary judge “[m]issed consideration of facts and evidence” and was biased in the weight he gave to evidence.
·Ground 2(1) contends that in [28]–[34] of the judgment, “there is no single untruth statement”. Thereafter, the appellant makes various factual assertions in five subparagraphs listed (a) through to (e). These will be addressed subsequently.
·Ground 2(2) refers to [88] of the judgment but, in substance, appears to be an attack on the primary judge limiting the cross-examination of the respondent, and the primary judge failing to have regard to, what the appellant says, are prior inconsistent statements made by the respondent.
·Ground 2(3) focuses upon [105] of the judgment and, in substance, appears to contend that the primary judge was in error in finding that the appellant had engaged in coercive conduct in pressuring the respondent to medically terminate a number of pregnancies.
·Ground 2(4) focuses upon [273] of the judgment and, in substance, appears to contend that, in the absence of expert evidence, the primary judge was in error in finding that the respondent was in fear of the appellant.
·Ground 2(5) focuses upon [289] of the judgment and contends that the primary judge failed to have regard to a relevant consideration, namely that the appellant has “taken every possible step in compliance with his legal counsel to maintain a relationship with [the] child”.
·Ground 2(6) focuses upon [290] of the judgment and, in substance, appears to contend that the primary judge was in error in failing to consider or make mention of evidence that the respondent engaged in acts of violence against him.
·Ground 2(7) focuses upon [291] of the judgment and, in substance, appears to contend that the primary judge failed to have regard to art 9 of the United Nations Convention on the Rights of the Child and, in particular, the right of the child to have an ongoing relationship with the appellant.
·Ground 2(8) focuses upon [310] of the judgment and, in substance, appears to be a contention that the primary judge failed to give sufficient weight to the evidence of the Single Expert as to the “strength of the bond between the child and [the appellant]”.
·Ground 2(9), in substance, appears to contend that that the primary judge was in error in finding that the appellant was financially controlling the respondent.
·Ground 2(10), in substance, appears to be a contention that the primary judge failed to take into consideration that the respondent “has been abusive towards the [appellant’s] daughter from the previous marriage”.
·Ground 2(11) contends that the primary judge failed to give sufficient weight to the delay in the respondent reporting acts of violence that she alleged the appellant engaged in during the first period of the parties’ cohabitation. The appellant suggests that the respondent had ample opportunity to report these allegations from mid 2013 to early 2017 during their first period of separation.
·Ground 2(12) contends that the primary judge erred in failing to have regard to the fact “that the ‘verbal threats’ were from both sides”.
·Ground 3 was abandoned.
·Ground 4 contends that the primary judge “[m]isconstrued” dialogues and proverbs and thereafter sets out two sub-grounds.
·Ground 4(1) contends that, in assessing the nature and extent of the conduct of the appellant, the primary judge failed to have regard to “historical and cultural influences”.
·Ground 4(2) focuses upon [235] of the judgment and, in substance, appears to contend that the primary judge failed to have regard to “various personality types”. This was in the context of the primary judge finding that the appellant made a serious threat to the respondent in posting on his WhatsApp message portal the message “[d]on’t play with fire if you’re not willing to burn” in the days immediately following the violent death of the respondent’s sister at the hands of her brother-in-law.
CONSIDERATION
Ground 2
The opening statement to the first amended ground of appeal, contends that the primary judge:
Missed consideration of facts and evidence available in front of Hon. Court. and biased treatment for giving weight to evidences
(As per the original)
Alleged “biased treatment”
We must deal with the issue of bias first because, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117] and [172], the necessary result if bias is established is a retrial.
This ground cannot succeed because the appellant waived his opportunity to apply for the primary judge’s disqualification. As was observed by the majority in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76]:
… If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection.
(Footnote omitted)
In any event, the allegation of bias is without merit. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], the High Court stated that an apprehension of judicial bias arises where (see also Charisteas v Charisteas (2021) 273 CLR 289 at [11]):
…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
(Footnote omitted)
Bias is not demonstrated merely by a judge making an adverse finding about a party (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). Nor is bias established simply because a party disagrees with the outcome of the proceedings. In Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307, Bell P (as he was then known) said at [43] with Macfarlan JA and Payne JA concurring, “the fact that the primary judge ultimately rejected the appellant’s case for a variety of reasons does not and cannot demonstrate actual or apprehended bias”.
In this case, the appellant has not pointed to anything in the transcript that might indicate, to a reasonable bystander, that the primary judge might not have brought an impartial mind to his task. As we will subsequently explain, each of the adverse findings made against the appellant were reasonably open on the evidence presented.
“Missed consideration of facts and evidence”
While this ground is introductory to a number of sub-grounds, the premise upon which the ground is based is flawed. It is not necessary that a trial judge decide every matter which is raised in argument, they “may decide a case in a way which does not require the determination of a particular submission” (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385). As will be explained, the primary judge gave a detailed judgment, in which he properly identified relevant facts and circumstances, and explained and justified his findings and the orders he made.
Ground 2(1)
This ground focuses on [28]–[34] of the primary judge’s reasons. The appellant contends in Ground 2(1) that “there is no single untruth statement”. This appears to be in reference to the primary judge’s finding that the appellant “gave multiple instances of untruthful evidence” (at [28]). The appellant then proceeds to list various “facts” which he says the appellate court should consider in support of his argument that he was not untruthful (Grounds 2(1)(a)–(e)).
The task of an appellant is not, however, to present evidence for the appellate court to consider, but rather, to identify the error which it is contended the primary judge made in respect to findings of fact that impacted upon the outcome of the proceedings (Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 563; Balenzuela v De Gail (1959) 101 CLR 226 at 235–236).
For the following reasons, the matters referred to in sub-grounds 2(1)(a)–(e) do not give rise to appellable error.
Ground 2(1)(a) and Ground 2(1)(b): The appellant’s attempts to locate the respondent in April 2021
Ground 2(1)(a) and Ground 2(1)(b) relate to events that occurred in April 2021 after the respondent relocated to South Australia with the child. The primary judge found that the appellant had monitored the respondent by using “location data from the [respondent’s] SIM card, obtained from [the appellant’s] iCloud account in March 2021, to travel to [South Australia] in April 2021, for the purpose of taking the child back to Perth” (at [266]). To do so, the primary judge found that the appellant had gone to the effort of enlisting the support of his daughter and a friend by the name of Mr D. This occurred notwithstanding there was an interim Family Violence Restraining Order (“FVRO”) in place against the appellant which the respondent obtained in 2021.
Doing the best we can, it appears that Ground 2(1)(a) and Ground 2(1)(b) seek to dispute [34] of the primary judge’s reasons. In that paragraph, his Honour concluded that:
The [appellant] was determined to conceal from the Court when he learned of the [respondent’s] location (in around … March 2021) and the steps that he took to locate both the [respondent] and the child (in April 2021). The Court finds, contrary to the [appellant’s] evidence, that he was seeking to locate the [respondent] at her workplace and track the child’s location by either following the [respondent] home, or to the child’s school. The Court is satisfied that the [appellant’s] strategy to locate and remove the child from the [respondent’s] care, contrary to his evidence, was not limited to simply visiting the child’s possible schools at pick-up and drop-off times.
That conclusion was reasonably open to the primary judge. Indeed, during the course of the appeal, the appellant conceded that the evidence established that he had taken steps to locate the child in March and April 2021, including with the assistance of a friend. He contends he did so because of concerns he had for the child’s welfare, rather than for the purpose of locating the respondent. That submission rings hollow. Given that the child, of tender years, lived with the respondent who was his primary caregiver, it was open for the primary judge to conclude that any attempt to locate the child would necessarily involve locating the respondent. The primary judge referred to unchallenged evidence as to communication between the appellant and Mr D that clearly indicated the appellant’s purpose of enlisting his assistance was to locate the respondent, including by using information that the appellant provided to him.
In that respect, the primary judge had access to Exhibit 20, being “Bundle of WhatsApp messages” between the appellant and Mr D. These messages included the appellant sending Mr D a photograph of the respondent’s motor vehicle number plate in March 2021, and in April 2021, the appellant sent photographs of the respondent and a map of the mall where the respondent worked with the location of two E Business’ highlighted. The photograph was followed by a message from the appellant to Mr D asking if he could ask his niece to check both business so that he could then “book tickets”, presumably to travel to South Australia.
Accordingly, it was reasonably open to the primary judge to conclude that the appellant was attempting to locate the respondent and that he had enlisted the assistance of a third party to do so. It was also reasonably open to the primary judge to find that the appellant had attempted to mislead the Court in denying that he had done so.
Further, as found by the primary judge at [265]–[267] of his reasons, the appellant’s conduct in attempting to locate the child through the respondent was clearly contrary to the terms of the ex parte interim FVRO against the appellant. The restraining order included orders precluding the appellant from taking any steps to:
…
monitor the movement or communications of the [respondent],
cause or allow any other person to engage in conduct of the type referred to in any of the preceding paragraphs of this order on [the appellant’s] behalf.
(Exhibit 51)
The primary judge meticulously outlined how the appellant breached the terms of the interim FVRO at [265]–[267]. An appellate court will not interfere with a finding of fact if there was evidence on which that finding could reasonably be made (Edwards v Noble (1971) 125 CLR 296 at 304).
In summary, Grounds 2(1)(a)–(b) reveal no error on the part of the primary judge in finding that the appellant was attempting to locate the respondent including with the assistance of a third party and that conduct, which was in breach of an interim FVRO, constituted family violence (at [270]).
These grounds of appeal are without merit.
Ground 2(1)(c): The appellant’s mental health
Ground 2(1)(c) is a complaint that the primary judge made adverse credit findings against the appellant without having regard to the appellant’s mental health, and in particular, the fact that:
·The appellant was seeking psychological support from 2018;
·The appellant had not seen the child for a prolonged period of time; and
·The appellant was hospitalised in 2022 due to severe stress.
This ground must fail in circumstances where there was no admissible evidence before the Court that the appellant’s credibility or reliability as a witness had been impacted by adverse mental health.
Moreover, no submission was made to the primary judge that he should give particular consideration to the appellant’s evidence or the manner in which he gave his evidence as a result of mental health considerations.
The appellant is bound by the manner in which he conducted his case at first instance. In order to establish that the primary judge failed to have regard to the appellant’s health, as a material consideration, the appellant is required to show where the primary judge’s attention was drawn to the matter (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [120]).
His failure to do so is fatal to this sub-ground which we have found to be without merit.
Ground 2(1)(d): Erroneous reference
In this ground, the appellant contends that there is an error of fact where the primary judge referred to “parents” in his reasons at [28(2)], which was not mentioned in the appellant’s oral evidence.
We accept that the passage is not accurate and that the reference to “parents” should have been solely to “friends”. However, to constitute appellable error, the error must have affected the outcome (De Winter and De Winter (1979) FLC 90-605 at 78-092). The error here was not material to the ultimate finding by the primary judge that the appellant gave multiple instances of untruthful evidence or that the appellant had attempted to locate the respondent contrary to the interim FVRO.
This ground is without merit.
Ground 2(1)(e): Mr D’s knowledge of the parties’ separation
The appellant argues that the primary judge made an error of fact by determining that the appellant’s friend, Mr D, knew about the parties’ separation before December 2021. This is a complaint about the finding at [31(3)] of his Honour’s reasons.
Authorities recognise the advantage enjoyed by a trial judge in making factual findings extends to drawing inferences from those findings. That advantage by a trial judge includes findings of secondary facts which are based on a combination of advantage enjoyed by a trial judge in the impressions he or she gained from witnesses and “other inferences from primary facts” (FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203], quoting Lee v Lee (2019) 266 CLR 129 at [55]).
The inference that the appellant’s friend was aware of the parties’ separation was based on findings at [28(6)–(12)] and [30(1)–(16)]. Those factual findings were not challenged, and the findings justified the inference drawn by the primary judge.
This ground is without merit.
Ground 2(2): Finding on the assault that occurred in October 2020
This sub-ground makes three complaints:
(1)First, the appellant contends that an objection during the course of the respondent’s cross-examination prevented further questions being asked about the assault.
(2)Second, the appellant contends that the primary judge failed to consider that the respondent had “provided different statements to different entities” about the October 2020 incident, thus raising doubt about the respondent’s credibility.
(3)Third, the appellant complains that an audio recording in which “the [respondent] indirectly admitted to physically assaulting the [appellant] five times” was not considered or mentioned by the primary judge.
The first complaint goes to the issue of procedural fairness. A review of the transcript establishes that the primary judge acted entirely appropriately in ensuring that counsel for the appellant had an adequate opportunity to test the evidence of the respondent while also having proper regard of the respondent’s welfare and the risk of re-traumatising her. The transcript shows the primary judge making a ruling that he would permit further cross-examination “to explore inconsistencies or alleged inconsistencies” between what the respondent said in the proceedings and what she said elsewhere (Transcript 16 September 2022, p.4 lines 11–13). The primary judge, however, stated that, in his view, there was little to be gained by revisiting a step by step account of evidence she had provided. This was in circumstances where the primary judge observed the respondent to become quite emotional in recounting that evidence. The ruling was entirely appropriate and there was no denial of procedural fairness.
Pursuant to s 69ZN(4) of the Family Law Act 1975 (Cth) (“the Act”), the primary judge had a responsibility “to actively direct, control and manage the conduct of the proceedings”. Specifically, he was required to do so in a way that would safeguard “the parties to the proceedings against family violence” (s 69ZN(5)(b) of the Act). The primary judge noted concerns expressed by counsel for the respondent that she was being re-traumatised by repetitive cross-examination. Further, the primary judge had the benefit of observing the respondent’s emotionality to the repetitive cross-examination. In those circumstances, it was entirely appropriate for the primary judge to protect the respondent from re-traumatisation caused by repetitive cross-examination with little forensic purpose (Conomy v Maden [2016] WASCA 30 at [117])
The second aspect of this sub-ground is a general statement by the appellant that the respondent has “provided different statements to different entities” regarding the allegation that she was assaulted by the appellant in October 2020. Those entities are described in the appellant’s Amended Notice of Appeal as being the Magistrates Court of Western Australia, the Department of Communities, the Family Court of Western Australia and in a “CAC Memo”. There is no particularisation of those alleged inconsistent statements in either the Amended Notice of Appeal or the appellant’s Summary of Argument. Accordingly, this ground is impermissibly vague and general. In those circumstances it is not considered a proper ground of appeal (Bartram & Marsden [2023] FedCFamC1A 207 at [21], referring to Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]).
The third aspect of this sub-ground is based on a false premise. The assertion that the relevant audio recordings were not considered is incorrect. The primary judge referred to those recordings at [271] of his reasons. In that paragraph, the primary judge makes clear that, in determining that the respondent had been the subject of family violence, he had regard to the content of those recordings including verbal displays of aggression shown by the respondent. Appropriately, the primary judge had regard to that conduct, on the part of the respondent, in the context of the parties’ relationship and the predominance of coercive and controlling conduct found to have been exhibited by the appellant. His Honour’s approach was entirely consistent with the recognition that there is rarely a “perfect victim” in cases of family violence where the community expect victims of family violence to be mute despite being subject to a history of oppressive conduct and immediate provocation (Obando & Obando [2024] FedCFamC1F 461 at [202]–[204]; Pachris & Tajir (No 2) [2022] FedCFamC2F 1296 at [133]).
Finally, we would add in respect to this sub-ground, that the primary judge’s findings as set out at [191] that the appellant “physically assaulted the [respondent], by at least pushing her, causing her to fall over” in October 2020 was, in part, based on a concession by the appellant that there “was an action” on his part which resulted in the respondent injuring herself (Transcript 7 September 2022, p.23 lines 34–39).
Accordingly, there is no merit in this sub-ground.
Ground 2(3): Forced medical abortions
In this sub-ground, the appellant contends that the findings of the primary judge that the appellant forced the respondent to have multiple forced abortions “needs to be reconsidered” by the appellate court. This is not a valid ground of appeal because the precondition for the Full Court exercising power pursuant to s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and re-exercising discretion requires the finding of error (Allesch v Maunz (2000) 203 CLR 172 at [23]).
The primary judge, at various parts of his reasons, set out in considerable detail why he found that the appellant had forced the respondent to undergo multiple pregnancy terminations. This included reference to an acknowledgement by the appellant in an interview with the Department of Child Protection in 2013 that the respondent had undergone five or six abortions (at [105]). It also included that the respondent had reported the pregnancy terminations to doctors, social workers and hospitals, and further, that she attended abortion grief counselling for two months (at [253(1)–(8)]). It was therefore reasonably open for the primary judge to reject the appellant’s evidence that the respondent had only undergone one abortion. Further, it was reasonably open to the primary judge to find that the appellant had pressured the respondent to undergo the termination procedures including by threatening suicide if she did not do so (at [84]).
Accordingly, the appellant has failed to establish error and this sub-ground is without merit.
Ground 2(4): Absence of psychological evidence of the respondent being fearful of the appellant
This sub-ground alleges that in the absence of “psychological or any other form of third party evidence”, the primary judge was unable to find that the respondent was fearful of the appellant.
The primary judge found that “the [respondent] has a genuine and reasonable fear of the [appellant], which is grounded in her lived experience” (at [273]). That finding was reasonably open on the evidence including in circumstances where the primary judge found the respondent had been the subject of a pattern of coercive and controlling conduct including actual physical violence and significant threats. Those threats included:
·The appellant implicitly threatened to harm members of the respondent’s family in a telephone call in 2014 (at [257]).
·In 2016, in a call between the respondent and the appellant, the appellant stated “I already told you this thing, if you step out from home due to petty things, means you are dead, that’s it” (at [164], as per the original).
·In 2021, the respondent’s sister, Ms F, was murdered by her husband. While not found to be the cause of that murder, the primary judge noted that when under cross-examination, the appellant acknowledged that in 2020 he told Ms F’s husband that he thought she was cheating on him (at [204]). Three days after Ms F was murdered, the appellant changed his WhatsApp profile picture to a quote stating “[d]on’t play with fire if you’re not willing to burn” (at [235]).
The primary judge found that change by the appellant to his WhatsApp profile was in direct response to Ms F’s death and that it caused the respondent to feel frightened and intimidated (at [235]). The primary judge found that the respondent’s fear of the appellant was “genuine and reasonable” (at [299]) and was likely to adversely affect her parenting capacity (at [297] and [309]).
Those findings were justified on the evidence. Expert evidence was not required for the primary judge to conclude that the respondent was fearful of the appellant and that such fear had the potential to impact on her parenting capacity.
This sub-ground is without merit.
Ground 2(5): The severance of the appellant’s relationship with the child
This sub-ground relates to the finding of the primary judge that the child “does not currently have a meaningful relationship with the [appellant]” and that the relationship was severed at separation (at [289]).
The appellant complains that he has “taken every possible step in compliance with his legal counsel to maintain a relationship with the child” and that the gap in spending time with the child has not been caused by him (Amended Notice of Appeal filed 22 April 2024, p.6).
The appellant’s submission is misconceived. The primary judge referred to the child’s lack of contact with the appellant as being a relevant consideration in determining the nature of the child’s relationship with the appellant as required by s 60CC(3)(b) of the Act. The primary judge appropriately observed that the child had not spent time with the appellant since the parties separated in February 2021. That fact was not in dispute. In applying s 60CC(3)(b) of the Act, the primary judge was not required to consider and did not consider causative factors giving rise to the child’s lack of contact with the appellant. No error has been demonstrated.
This sub-ground is without merit.
Ground 2(6): Consideration of audio recordings
This sub-ground is similar to Ground 2(2) and is made in the context of his Honour’s finding, at [290], that the “[respondent] has not engaged in any relevant family violence against the [appellant]”.
The appellant contends that the primary judge failed to take into consideration, or mention in the judgment, audio recordings tendered into evidence by the appellant which, according to him, demonstrate that the respondent was violent towards the appellant and that she was controlling of the parties’ finances.
This sub-ground is again misconceived. The primary judge did in fact refer to the audio recordings at [271] as follows:
In three undated recordings relied upon by the [appellant], the [appellant] refers to the [respondent’s] uninhibited aggression towards him and submits that this is not the behaviour of a person who is afraid or intimidated of him. The Court does not draw this conclusion and considers that this material must be viewed in the context of the entirety of the relationship, and all of the evidence available for consideration.
An appellate court will not disturb the factual findings of a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’” (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]). Appellate courts also recognise the particular advantage enjoyed by a trial judge in assessing the totality of the parties’ evidence which is assessed in the courtroom atmosphere where the trial judge has the benefit of seeing and hearing the parties give evidence (Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 at [58]).
The primary judge was well placed to consider the nature of the respondent’s reactions to coercive and controlling conduct on the part of the appellant within the context of the entirety of their relationship. The primary judge was entitled to conclude that the respondent’s defensive response to the appellant’s provocation was not intended to harm, punish, or frighten the appellant, nor to make him “subordinate” to her control over him and, in that context, the respondent’s defensive displays of verbal aggression did not constitute family violence (F v L (Child Arrangements Order: Relocation) [2018] 4 WLR 141 at [61]).
Accordingly, this sub-ground is without merit.
Ground 2(7): The child’s best interests
In this sub-ground, the appellant expresses disappointment with the decision of the primary judge which he contends, “isnt [sic] in child’s best interest”.
In support of this sub-ground, the appellant references an occasion where the child expressed that he did not want to go back to the respondent after spending time with the appellant. The appellant concludes this sub-ground by stating that the child “will be devastated and forced to live a misearable [sic] life without [the appellant]”.
The importance of the child having a meaningful relationship with the appellant was not lost on the primary judge. The primary judge specifically acknowledged that the child expressed “sadness about not seeing the [appellant]” for a period following the parties’ separation (at [289]).
However, appropriately, the primary judge explained that the benefit of the child having a meaningful relationship with the appellant was outweighed by other s 60CC factors. This included risk factors associated with the appellant having engaged in a pattern of coercive and controlling behaviour directed towards the respondent together with actual violence and threats. As already noted above, it was reasonably open for the primary judge to find that the appellant’s conduct resulted in the respondent having a “genuine and reasonable fear of the [appellant]” grounded in her lived experience (at [273]).
As appropriately expressed by the primary judge at [280]:
The Court is not obliged to make the orders which are most likely to ensure that a child has a meaningful relationship with both parents. The Court’s obligation is to make orders most likely to promote the child’s best interests. Even if a benefit to the child is established, it must still be weighed along with all the other relevant factors. The Court is obliged to attach greater weight to protecting the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence, than to the benefit to the child of having a meaningful relationship with both the child’s parents.
(Footnotes omitted)
The appellant has not established any error, in terms of the principles adumbrated in House v the King (1936) 55 CLR 499, that have impacted the primary judge’s decision.
Moreover, in the context of the findings to which we have referred, the decision of the primary judge was consistent with authority including that of courts in comparable jurisdictions. In that respect, in Re H-N [2022] 1 WLR 2681, the England and Wales Court of Appeal highlighted the harm caused to children by exposure to family violence, particularly abuse involving an element of coercive control. The Court, in that decision, stated at [31]:
The circumstances encompassed by the definition of “domestic abuse” in [the relevant UK Practice Direction] fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see “Scott schedules” at paragraph 42–50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
i)is directed against, or witnessed by, the child;
ii)causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
iii)creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
iv)risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.
We respectfully agree with and apply that analysis.
For completeness, we would add that insofar as the appellant refers to art 9 of the United Nations Convention on the Rights of the Child, he has omitted reference to that part of the article which states that the article does not apply in circumstances where, in accordance with applicable law and procedures, separation from a child’s parent is deemed necessary for the best interests of the child.
Accordingly, this sub-ground is without merit.
Ground 2(8): Consideration of the Single Expert’s recommendations
This ground of appeal is raised in the context of [310] of the primary judge’s reasons. That paragraph sets out the primary judge’s findings that orders for the child to live with the appellant in Perth would be traumatic for the child and that such orders could not “be properly crafted to re-establish the relationship between the [appellant] and the child”.
The appellant appears to argue that the primary judge erred by not making orders in accordance with the spend-time arrangements recommended by the Single Expert. By way of summary, the Single Expert’s recommendations were as follows:
·That the respondent relocate to Perth so that the appellant can re-establish a relationship with the child.
·Following the respondent’s return to Perth, the child spend progressively increasing periods of supervised time with the appellant each week.
·If no significant concerns are raised during that time, the child spend progressively increasing periods of unsupervised time with the appellant, including overnight time.
At [311], the primary judge explains why he was unable to make spend-time arrangements between the appellant and child as recommended by the Single Expert. His Honour says this:
… Her report did not discuss coercive or controlling family violence. Nor were her recommendations or evidence framed against the background of the findings which the Court has ultimately made.
A trial judge inevitably gives considerable weight to the views of a family report writer or single expert but is not bound by those views. A family report writer or single expert does not usurp the role of the court. As articulated in Hall and Hall (1979) FLC 90-713 at 78,819:
While the [family report writer/single expert’s] views will normally have weight with the court because of his [or her] expertise and experience, [the family report writer/single expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [family report writer/single expert].
The primary judge has given a reasoned explanation for why he departed from the recommendations of the Single Expert (DL v The Queen (2018) 266 CLR 1 at [130]–[131]) and no error has been established in the primary judge taking that course.
This sub-ground is without merit.
Ground 2(9): Financial control
The appellant says that the respondent misled the Court about him “controlling family income”. Further to this point, the appellant contends that the primary judge did not have regard to, or mention in the judgment, an audio recording labelled “[the respondent]-controlling-finance”.
This sub-ground has little relevance in circumstances where the primary judge did not make any findings in relation to financial control on the part of either party. Moreover, it is “not the duty of the judge to decide every matter which is raised in argument” (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385)
This sub-ground is without merit.
Ground 2(10): Consideration of the respondent’s relationship with Ms B
In this sub-ground the appellant contends that the respondent “has been abusive towards [Ms B] … but this is not mentioned or considered in the judgment”. He also claims that the respondent “misguided the court that [Ms B] was not part of the [immigration] application and it was not easy to bring her to Australia without her biological mother’s consent”, where in fact, according to the appellant, he did not need Ms B’s biological mother’s consent in circumstances where he had sole custody of Ms B.
This sub-ground is based on a false premise. The respondent’s relationship with Ms B was, in fact, referenced throughout the primary judge’s reasons. His Honour made the following relevant observations:
·That the respondent had a poor relationship with Ms B, and this caused major conflict between herself and the appellant during the relationship (at [92]).
·The decision to send Ms B to live with her paternal grandparents in Country C, in 2013, was taken due to the conflict in the parties’ home between the respondent and Ms B (at [107]).
·Confidential school psychology records for Ms B from 2019 record the concerns that were expressed in relation to the strained relationship (at [183]).
Moreover, this sub-ground is impermissibly vague and general (Bartram & Marsden [2023] FedCFamC1A 207 at [21]). The appellant has not particularised how those findings that the respondent had a poor relationship with Ms B have resulted in error on the part of the primary judge in making the orders which are the subject of challenge.
This sub-ground is without merit.
Ground 2(11): Late reporting of family violence allegations
This sub-ground must be read in conjunction with the appellant’s Summary of Argument, which refers to Exhibit 5, being a Police Detected Incidents Report from 2021. That Report lists the following incidents:
·In 2016, the appellant raped the respondent;
·In 2020, the appellant assaulted the respondent; and
·Various other historical incidents of family violence.
The appellant questions the validity of those incidents in circumstances where there was a delay in their reporting.
Firstly, in dealing with this sub-ground, it is important to note that the primary judge does refer to Exhibit 5 in his reasons (at [159] and [191]) and addressed the late reporting of some of the respondent’s allegations, as follows (at [160]):
The [respondent] gave no cogent explanation for why she delayed in reporting such a serious crime. In closing submissions, the [respondent’s] counsel conceded that a finding of rape on this date was not open to the Court and referred to his client having the “wrong” date …
(Footnote omitted, italicised emphasis in the original)
Secondly, the primary judge did not ultimately make a finding of rape or non-consensual intercourse (at [166]). During the appeal hearing, when it was pointed out to the appellant that the primary judge made no such findings, he responded that, though he knew this to be true, he thought it was necessary to “draw a picture of the [respondent’s] fabrication”. Such pursuits are meaningless as they do not demonstrate error on the part of the primary judge.
In relation to the assault that occurred in 2020, the primary judge referred to Exhibit 5 (at [191]) in acknowledging that there were inconsistencies in some of the respondent’s accounts. The primary judge was nonetheless satisfied that an assault of some kind did occur. That finding was reasonably open on the evidence and no error has been established.
This sub-ground is without merit.
Ground 2(12): Consideration of phone calls
The substance of this sub-ground is that the primary judge failed to consider a relevant audio recording, being “Aud_50” of Exhibit 39 which relates to a conversation that occurred in 2016. The Summary of Argument, however, confirms that the appellant also intends to refer to “Aud_47” of Exhibit 59, being a conversation that occurred in late 2015.
Again, this sub-ground is based on a false premise. The primary judge did, in fact, reference the 2015 call (at [139] and [140]) and the 2016 call (at [164] and [165]).
To the extent that this sub-ground contends that “there is no consideration” of these calls in the judgment, it must fail.
Moreover, we have previously observed why it was reasonably open for the primary judge to find that the respondent was a victim of family violence despite incidents of verbal aggression on her part in response to the conduct to which she had been subjected by the appellant.
This sub-ground is without merit.
Ground 4(1): Historical and cultural influences
At [199] and [200] of the judgment, the primary judge considered evidence of the appellant’s objection to the respondent performing a particular cosmetic procedure on male customers. The primary judge set out comments that the appellant made to a friend during a phone call in early 2021 (at [200]):
I also have sisters. My second sister was characterless. Alright? I told her that I would chop off your legs if you ever entered into our house. I do say it publicly that my second sister was characterless, now she is married…she got married and also get her legs chopped off. As a brother, I was young at that time. Even then, I told her that because of your doings, you are not welcome here. You should not come here [in their house]. For three years, she was not allowed to enter in our home…after that, my mother tried to support her. I told off my mother that I will also kick you out of the house along with your belongings. As a brother, I took a stand against it and also helped her to settle. Alright? Alright. Till today, I am in full support of her husband. I told him if she does any issues like before, just tell me about them. I will slit her throat myself and bury her.
(As per the original, italicised emphasis in the original)
The appellant contends in this sub-ground, that the primary judge erred in making adverse findings against him as a result of his comments. This is because the appellant contends that the primary judge failed to “view the conversation as a reflection of the historical and cultural influences on the speaker, not as an accurate representation of [the appellant’s] current beliefs or behaviors [sic]”.
In rejecting this sub-ground, we note that there was no evidence before the primary judge of any such “historical or cultural influences” that would justify the use of such threatening statements. Moreover, any such influences, even if established, would not justify the primary judge employing a lesser standard of respect for Australian laws including in respect to what conduct constitutes family violence as defined in s 4AB of the Act.
This sub-ground is without merit.
Ground 4(2): Interpretation of “proverb”
It was uncontroversial in the proceedings that the appellant changed his WhatsApp profile picture three days after his sister-in-law was killed by her husband to a quote saying “[d]on’t play with fire if you’re not willing to burn”, and that this change was a direct response to her murder (at [235]).
In this sub-ground, the appellant appears to assert that the primary judge erred in failing to find that the appellant posted that message not as a threat to the respondent, but as a “warning against risky behaviour”.
It was reasonably open for the primary judge to find that the appellant changed his WhatsApp profile in direct response to the murder of his sister-in-law. Having so found, it was also reasonably open to the primary judge to find that the respondent felt intimidated and frightened by the message.
This sub-ground is without merit.
DISPOSITION
Having found each ground of appeal to be without merit, we dismiss the appeal.
There has been no application for costs.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge & Brasch. Associate:
Dated: 6 September 2024
2
28
3