Laurent & Arany
[2024] FedCFamC1A 211
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Laurent & Arany [2024] FedCFamC1A 211
Appeal from: Laurent & Arany (No 2) [2024] FedCFamC2F 941 Appeal number: NAA 158 of 2024 File number: ROC 1112 of 2020 Judgment of: CAMPTON J Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – APPEAL – Where the father appeals from final parenting orders providing for the child to live with the mother and spend time with the father, amongst other orders – Where the father contends that he was denied procedural fairness by way of the Court delivering final judgment prior to considering his Application in a Proceeding filed after judgment was reserved – Where there is no evidence on appeal that the father or his solicitors bought the Application in a Proceeding to the primary judges attention prior to the delivery of the final judgment and the making of final parenting orders notwithstanding opportunities to do so – Consideration of r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in dismissing the Application in a Proceeding after final orders had been made and entered – Where the father makes complaint as to the primary judge erring in fact, failing to take into account relevant considerations, providing inadequate reasons, and as to the orders being so plainly unreasonable and unjust as to amount to a discretionary error – Where such errors are not established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CC
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01 and r 13.23
Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kellerman & Kellerman [2024] FedCFamC1A 126
Khatri & Khatri [2024] FedCFamC1A 152
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Number of paragraphs: 101 Date of hearing: 6 November 2024 Counsel for the Appellant: Ms Pendergast Solicitor for the Appellant: Swanwick Murray Roche Lawyers Counsel for the Respondent: Dr Lake Solicitor for the Respondent: The Rockhampton Law Practice Counsel for the Independent Children's Lawyer: Mr Slade Jones Solicitor for the Independent Children's Lawyer: Lyrene & Wiid Lawyers & Migration Agent ORDERS
NAA 158 of 2024
ROC 1112 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LAURENT
Appellant
AND: MS ARANY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The appeal 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 pseudonyms Laurent & Arany has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of a Notice of Appeal filed on 28 June 2024, as amended on 27 September 2024, Mr Laurent (“the father”) appeals from orders made on 26 June 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) regulating the parenting of the child of he and Ms Arany (“the mother”), X (“the child”), born in 2018.
The Independent Children’s Lawyer (“the ICL”) supports the appeal. The mother resists the appeal.
For the reasons that follow the appeal is dismissed.
BACKGROUND
The father was born in 1991 and is 33 years old. He and his family are residents of Town B in Region C, an area west of Town D in Central Queensland. The father’s family operates a business there. The father works in that business, living in a house owned by his parents. The father has no intention of living anywhere other than Region C (at [4] and [35]).
The mother was born in 1997 and is 27 years old. Her family of origin lives in Town E, approximately 600 kilometres, or seven hours drive, from Region C (at [5]). The mother has no desire to live in Region C (at [35]), wishing to live in rural Queensland, provided she is not compelled to live in the part of Queensland where the father and his family live (at [22]). The mother will not leave Region C if orders are made for the child to live in that area (at [74] and [84]).
At the commencement of their relationship the mother and father were living in Region C. They separated on a final basis in mid-2019 when the child was 17 or 18 months old. In December 2019, after engaging in a mediation at a Family Relationship Centre, they implemented a week-about living arrangement for the child.
In mid to late 2020 the mother relocated with the child to Town E.
On 25 November 2020 the father commenced parenting proceedings, including seeking an order that the child live within 100 kilometres of Region C.
On 15 January 2021 the mother made a report to the police alleging that the father had sexually abused the child with a plastic knife. On 20 January 2021 a report was made to the Department of Child Safety. A medical examination was undertaken of the child. It did not find any evidence of sexual abuse. The police investigation was closed at the end of January 2021, determining that there was no evidence to support the allegation.
On 29 January 2021 the parents entered interim consent orders providing for the child to spend unsupervised time with the father for one day on Wednesday and one weekend each fortnight.
On the same day, 29 January 2021, the mother made a report to the Department of Child Safety repeating the allegation that the father sexually abused the child with a plastic knife.
In February 2021 a report was made to the Department of Child Safety as to the child being neglected in the mother’s care. The Department undertook an investigation, finding that the child was not in need of protection.
On 27 July 2021 final consent orders were made for the parents to have equal shared parental responsibility for the child, and for the child to live with the mother and for the child to spend time with the father each alternate week from Thursday until Monday until the child was scheduled to commence school. The orders contemplated that the child would in 2023 commence and attend prep school where the mother was then living in Town F, in Region C. From that time the father would spend time with the child on each alternate weekend and for half of the school holidays. An order was made restraining, unless agreed in writing, each parent from relocating (as opposed to relocating the residence of the child) more than 100 kilometres by reasonable road travel from Town B, Queensland.
It is approximately a 45-minute drive from Town B to Town D (at [35]). Town E is approximately 600 kilometres from Town B (at [34]). [Town F] is within 100 kilometres of reasonable road travel from Town B. Town G is approximately 300 kilometres from Region C (at [6]).
On 28 July 2021, the day after the final consent orders were made, a further report was made to the Department of Child Safety as to the child being sexually assaulted by the father and being “terrified of going to spend time with the father” (at [51]). The child was interviewed on 29 July 2021. The child made no disclosures and denied that the father did anything to hurt her, or that she was scared being at her father’s residence.
At the end of May 2022, the mother reported to the police that the father was sexually abusing the child using a mechanical massager (at [52]). In August 2022 the Department of Child Safety conducted a safety assessment in which they spoke to the child. The Department formed a view that the allegations were unsubstantiated, and the child was not in need of protection.
After the child spent time with the father during the October 2022 school holidays, the mother told the father that she no longer wanted to live in Region C, and of her desire to leave the area (at [53]). The mother relocated the child to Town E. She attended the police who referred the matter to the Department of Child Safety. On 26 October 2022 the Department advised the mother that any allegations were unsubstantiated.
On 21 December 2022 the father commenced discrete proceedings for the recovery of the child. On 13 February 2023 orders were made requiring the mother to return the child to resume living arrangements in accordance with the consent orders made on 27 July 2021, and if the mother did not return with the child, for the child to live with the father and for the mother to spend time with the child as set out in Orders 6 and 7 of the orders of 27 July 2021, such time to be spent within 100 kilometres of Town B (at [16]).
In early 2023 the mother commenced a relationship with Mr J. Mr J and the mother have not cohabitated. Mr J lives in Town G, a small regional community southwest of City H, about 300 kilometres from Region C. He works in the industrial sector and travels away from Town G regularly. He has two children of a previous relationship, both of whom live with their mother within approximately an hour of Town G. They spend every second weekend and half of the school holidays with Mr J.
The child commenced prep school in early 2023 in Town F. The mother gained employment in the education sector. The mother and the father agreed that the child was to be returned to the mother’s care on Sunday evening (as opposed to Monday mornings) on the alternate weekends that she was spending with the father.
On 14 February 2023 the father filed an Initiating Application seeking to vary the prior July 2021 parenting orders. He filed an Amended Initiating Application on 27 November 2023 seeking equal shared parental responsibility for all major long-term decisions for the child, for the child to live with him and spend time with the mother on alternate weekends and for one half of the school holidays, amongst other orders.
On 14 February 2023 the mother filed a Response to an Initiating Application. On 26 October 2023 she filed an Amended Response to an Initiating Application seeking equal shared parental responsibility for all major long-term decisions for the child, for the child to live with her within 300 kilometres of Town B and to spend time with the father on each alternate weekend and for half of the school holidays, amongst other orders.
The ICL was appointed. Orders were made for a family report to be prepared. The parties and the child attended interviews for the purposes of the Family Report on 28 June 2023. That Family Report was released on 2 August 2023.
The hearing commenced on 31 October 2023. It continued 1 December 2023. The mother, the father, and Mr J were cross-examined. The matter was adjourned part heard.
The father considered that the mother relocated the child to Town G during the 2023/2024 Christmas period. He filed an urgent Application in Proceeding. It was listed on 23 January 2024. The primary judge found:
18Before the next Court date could come to pass, the Christmas school holidays were upon the family, and during the Christmas school holidays the father learned through the child that it seemed that the mother had made a determination to unilaterally move to [Town G] during the Christmas school holidays and that [the child] would be required therefore to commence her grade 1 school year at [Town G].
19The matter was brought back on for an urgent application in a case. The mother gave evidence that she had not really considered that she had moved to [Town G], but during the Christmas school holidays when the child was with her for the holidays, the child was with her in [Town G]. Whatever the reality was, a further order was made by me on 23 January 2024 which required that the child was either to live in [Town F] or [in Region C], and was to be immediately re-enrolled in the [School N], and that the mother was to advise the father whether she intended to return with the child to [Town F] or whether she would take up an offer of accommodation by the father [in Region C] or whether the child would be leaving her care and coming into the father's care.
20I made an order with respect to what school the child would attend if the child was living [in Region C]…
An updated Family Report was released on 21 February 2024.
On 8 March 2024 the mother and father were again cross-examined. The paternal grandmother was cross-examined. On 28 March 2024 the family consultant was cross-examined, and submissions concluded. The trial consumed five hearing days. The primary judge recorded (at [30]–[33]) that each of the mother and father proposals changed a number of times during the proceeding.
At the conclusion of the trial the ICL sought for the father have sole parental responsibility for the child and for the child to live with him, for the mother to commence counselling, for there to be a moratorium of time spent between the mother and the child for a period of three months, and in the event the mother lived within 100 kilometres of the father’s home, for her to spend time with the child on alternate weekends, or in the event that she lived further than 100 kilometres from the father’s home, then on two weekends each term, and in any event for half of the school holidays (Transcript 28 March 2024, p.35 line 35 to p.36 line 33).
The father broadly sought the same orders as the ICL (Exhibit 7). Both the father and the ICL sought that, in the event an order was made for the child to live with the mother, for the parents to have equal shared parental responsibility for the child.
The mother sought an order for equal shared parental responsibility, for the child to live with her within 300 kilometres of Town B and spend time with the father on alternate weekends and for half of the school holidays.
On 28 March 2024 judgment was reserved to 12 noon on 12 April 2024. It was adjourned to 19 April 2024 and adjourned again to 9 May 2024. It was delivered on 26 June 2024.
The orders under challenge provide:
THE COURT ORDERS ON A FINAL BASIS:
1. That all previous Orders and Parenting Plans be discharged.
Parental Responsibility
2.That [the mother] (herein ‘the mother’) and [the father] (herein ‘the father’) equally share parental responsibility for the major long- term issues in relation to the Child […] born […] 2018 (herein ‘the Child’) including but not limited to:
(a) The Child’s education, both current and future;
(b) The Child’s religious and cultural upbringing
(c) The Child’s health; and
(d)Changes to the Child’s living arrangements which make it significantly more difficult for the Child to spend time with either Parent.
3. That in the exercise of this equal shared parental responsibility the Parents will:
(a) Inform each other about the decision to be made;
(b) Consult with each other on terms they agree; and
(c) Make a genuine effort to come to a joint decision.
4. That notwithstanding the provisions of Orders (2) and (3):
(a)The Mother will be responsible for the daily care, welfare and development of the Child when they are living with or spending time with her; and
(b)The Father will be responsible for the daily care, welfare and development of the Child when they are living with or spending time with him.
5.That the child live with the mother within 300kms, by reasonable road travel, from [Town B].
6.That the Child spend time with the father at all times as agreed in writing, and failing agreement, as follows:
(a)For the third and sixth weekend of each school term from 3.00pm or the conclusion of school Friday, until 9.00am or the commencement of school on Monday or Tuesday if Monday is a public holiday or student free day;
(b)For the first half of the gazetted Queensland school holidays at Easter, June/July and September in even years, and the second half of the gazetted Queensland school holidays at Easter, June/July and September in even years; and
(c)In 2024, for the second, fourth and sixth week of the gazetted Queensland school holidays at Christmas; and
(d)Commencing 2025 and thereafter, for the first half of the gazetted Queensland school holidays in odd years and the second half of the gazetted Queensland school holidays in even years.
Changeover
7.That unless otherwise agreed in writing, changeover be at [Town K] Service Station, [L Road], [Town K], Queensland […].
8.That the Parents may elect a nominee, being an adult known to the Child, to effect changeover.
Telephone/Skype/Facetime
9.That the Child be at liberty to communicate by telephone, video messenger or other agreed messaging platform with the Parent with whom they are not living with/spending time with at all reasonable times as may be requested by the Child.
10.That the Parent who does not have care of the Child on the following days be at liberty to telephone the Child, with the call to be initiated by that Parent who does not have care of the Child, between 5.30pm and 6pm:
(a) Christmas Day; and
(b) On the Child’s Birthday; and
(c) On Tuesdays and Thursdays.
Special Days
11.That if the Child is in the care of the Father pursuant to Order (6) on Mother’s Day, the Child spend from 5pm on the Friday before Mother’s Day until 5pm on Mother’s Day with the mother, and all other time arrangements are suspended.
12.That if the Child is in the care of the mother on Father’s Day pursuant to Order (6) on Father’s Day, the Child spend from 5pm on the Friday before Father’s Day until 5pm on Father’s Day with the father, and all other time arrangements are suspended.
13.That the parents keep each other informed of a residential address, telephone number and email address, and notify the other Parent within forty-eight (48) hours of any change therein.
14.That each Parent will notify the other by telephone as soon as practicable of any matter relating to the health or wellbeing of the Child which requires the attention of a medical practitioner or allied health professional (save for common colds, minor injuries and such like) and provide to the other Parent the name and contact details of the medical practitioner or allied health professional treating the Child.
15.That this Order is sufficient authority to authorise any doctor, hospital, counsellor and/or allied health professional by its appropriate officer, to furnish both Parents with any information that they may require or request, with the Parent so requiring or requesting such information to be responsible in full for the cost of such request.
16.That this Order authorises the Child’s school to provide both Parents with copies of all school reports, photographs (at the requesting Parent’s expense) and/or any other document regarding the academic progress and/or achievements of the Child and notification of such events such as Parent-Teacher meetings, sports days, concerts and any extra-curricular events/activities attended by the Child.
17. That during the time the Child is with either Parent, that Parent will:
(a)Not denigrate or insult the other Parent in the presence or hearing of the Child, and use their best efforts to ensure that other persons do not denigrate or insult the other Parent in the presence or hearing of the Child; and
(b)Respect the privacy of the other Parent and not question the Child about the personal life of the other Parent; and
(c)Not discuss these Court proceedings or any of the allegations made during the course of these proceedings, with the exception of attendance upon confidential therapeutic counselling by either the Child or the Parents.
18.That if the mother choses to take up any counselling that she have leave to provide a copy of the following documents to any therapist or counsellor:
(a) Copy of the final parenting Order dated 26 June 2024;
(b) Copy of [the primary judge’s] reasons dated 26 June 2024;
(c)Family Report prepared by [the Family Report writer] dated 2 August 2023; and
(d)Family Report prepared by [the Family Report writer] dated 21 February 2024
19. That all outstanding applications be dismissed.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
(As per the original)
On 8 July 2024 consent orders were made staying the orders under challenge pending the outcome of the appeal.
THE APPLICATION IN AN APPEAL
The father filed and Application in an Appeal seeking to for the appeal Court to view Exhibit 6, being a recording of 47 seconds in duration made by the mother of the child purportedly making complaints as to the father’s behaviour. Neither the mother nor the ICL opposed the application. The Summary of Argument of the father did not refer to Exhibit 6. At the hearing of the appeal the father said the exhibit was relevant to a determination of Grounds 4 and 6. He did not identify Exhibit 6 in oral submissions in support of those grounds, however, did refer to it in support of Ground 5.
THE APPEAL
A presumption exists at law that a primary judge’s decision is correct, and the onus rests on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
The relevant principles governing appeals from discretionary judgments is well settled. Error of the type identified in House v The King (1936) 55 CLR 499 (“House”) at 504–505 must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
(Emphasis added)
That an appellate court might have arrived at a different outcome by virtue of affording some, less, or more weight to matters of fact does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519). The weight or importance afforded to evidence is a matter quintessentially for the primary judge, unless an appellant can demonstrate that the primary judge was “plainly wrong” (CDJ v VAJ (No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) at 230–231 per Kirby J).
The Amended Notice of Appeal filed on 27 September 2024 contains six grounds of appeal, being:
1. That the learned trial Judge failed to afford the [father] procedural fairness in refusing to consider the [father’s] Application to adduce further evidence prior to the judgement on the matter.
2. That the learned trial Judge erred in finding that the maternal grandmother would be doing the bulk of the caring for the child in the father’s home.
3. That the learned trial Judge erred by failing to consider the consequences for the child of the mother’s allegations of abuse and her unilateral relocations contrary to court orders.
4. That the learned trial Judge erred in failing to consider the effect that the mother’s fixed belief that the father had sexually abused the child has had on the child and the implications for the future parenting orders.
5. That the learned trial Judge gave inadequate reasons for her decision.
6. The orders were so contrary to the evidence adduced at the final hearing as to represent an error of law.
The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that the father asserts were made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). The importance of identifying the error in the judgment under appeal in the construction of the grounds of appeal ought not be discounted or overlooked. As observed by the Full Court in Newett and Newett (No 2) (2021) FLC 94–051 at [34], “unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors.”
As Ground 1 relates to lack of procedural fairness, it will be dealt with first as it is a matter that goes to the integrity of the hearing process (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
Ground 1 – “That the learned trial Judge failed to afford the [father] procedural fairness in refusing to consider the [father’s] Application to adduce further evidence prior to the judgement on the matter.”
On 12 June 2024, after judgment was reserved, the father filed an Application in a Proceeding seeking:
1. That the parties have leave to adduce further evidence in this matter.
2. That until judgment is pronounced in this matter the child […] born [...] 2018 live with the father.
3. That the child attend [School M].
4. That the child spend time with the mother pursuant to clause 5 of the Orders dated 23 January 2024.
5. That the mother pay the father’s costs of an incidental to this Application on an indemnity basis.
6. Such further or other orders as the Court deems meet.
(As per the original)
The Application in a Proceeding was supported by an affidavit of the father filed on 12 June 2024. It was allocated a listing date of 9 July 2024.
The father’s Summary of Argument contends that there was a failure to afford him procedural fairness because the primary judge delivered reasons for judgment and made orders in circumstances where “[the solicitor for the father] did not have an opportunity to be heard in relation to the Application in a Proceeding.”
In support of the ground, the ICL was critical of the primary judge’s failure to engage “in any way” with the Application in a Proceeding, submitting that the Court’s jurisdiction was “properly invoked” and that the primary judge “should have meaningfully engaged with the Application in a Proceeding… and failed to do so.”
The mother submitted that the Application in a Proceeding, properly characterised, sought a variation of parenting orders “until judgment is delivered in this matter”. The father submitted that this was a “pedantic” approach to the reality of the relief sought. He submitted in the hearing of the appeal that “leave to re-open would have been requested” upon the application coming before the primary judge. The further evidence he sought to adduce, sourced from the child or another unspecified source at an unparticularised time, was that the mother was now living in [Town D], leaving the child in the care of others during the week to attend school in [Town F], and that the mother had taken the child to visit her sister. He cited that the mother “argued” at the hearing that the paternal grandmother had put the child at a risk of harm by taking the child to visit her sister.
The gravamen of the submission of the father and the ICL was that, if an application for re-opening was made, the decision could (rather than would) realistically have been different had the further evidence been adduced, such that it was demonstrable that the procedural error meets the threshold of materiality to the outcome (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610).
The mother submitted that nothing in the father’s affidavit that could reasonably have met the discretionary criteria to re-open. She contended that the purported further evidence was tangential and largely irrelevant to the primary judge’s reasoning, and hence could not have led to a different outcome nor any practical injustice.
As a concept, procedural fairness is concerned only with the fairness of the hearing, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). Procedural fairness requires each party to be given an adequate opportunity to be heard and present their case (Kioa v West (1985) 159 CLR 550 at 582). It is only the opportunity to present evidence and argument which the interest of justice requires, not the actuality of it.
The father submitted that the requisite failure to afford procedural fairness was the absence of opportunity to make submissions for the purposes of obtaining leave to re-open, and thereafter if leave was achieved, as to how the further proposed evidence would be adduced, how the mother was to respond to it, and potentially how it would be tested.
For the purposes of this ground:
(a)The affidavit of the father filed on 12 June 2024 identified at [9]:
9.On 11 April 2024, the parties were advised that Judgement had been moved to 19 April 2024.
The Court communicated with the parties as to the extensions of listings for delivery of the reserved judgment.
(b)The Application in a Proceeding of the father did not seek an urgent listing, or a listing on short notice, whether it be before the primary judge or any other delegated judicial officer. The father’s affidavit evidence was:
22.I do not believe [sic] that this arrangement should continue for too much longer and am of the view that [the child] should come into my care and attend [School M] as is required pursuant to the Orders of 23 January 2024.
23.If the Court does not agree that this is the appropriate interim arrangement, then I would be agreeable to [the child] living with me and continuing to attend [School N]. I would then drive [the child] in and out of [Town F] each day for school.
(Emphasis added)
(c)Importantly, the father conceded at the hearing of the appeal that he could not identify in any of the evidence or material on appeal as to the fact of, or the content of, his Application in a Proceeding being brought to the notice or attention of the primary judge between the date it was filed on 12 June 2024 and 26 June 2024 when judgment was delivered and orders made.
(d)The solicitors for the mother, the solicitors for the father, and the ICL appeared for the delivery of reasons on 26 June 2024. The transcript records:
[SOLICITOR FOR THE FATHER] appears for the applicant father
[SOLICITOR FOR THE MOTHER] appears for the respondent mother
[THE ICL] appears for the independent children’s lawyer
…
HER HONOUR: Everybody, please now place your telephones onto mute so that none of us are distracted by any background noise. As I give my reasons for judgment, if you’re struggling to hear me, feel free to interrupt me and let me know, and I will try harder at keeping my voice up. If, however, you think that what I’m saying is something that is wrong, please don’t interrupt me. If I’m wrong, I will need to be corrected by another court at another time. If, for any reason, during the reasons for judgment, the call drops out – if you think it’s from your end, simply dial back in to the court with the same number and the same PIN. If, for some reason, it’s us that drops out – which is more probable than not that, if there is a fault, it’s at our end – we will dial back in as soon as we realise that the call has dropped out. With those remarks, let me get my paperwork into order, and I will commence.
RECORDED : NOT TRANSCRIBED [FINAL JUDGMENT DELIVERED]
HER HONOUR: I wish both the parents all the best for their future parenting of [the child], and I thank all of the lawyers for their assistance. Those, then, are my reasons, and they are my orders. [Solicitor for the father].
[Solicitor for the father]: Your Honour, I would resist any order dismissing outstanding applications as a current outstanding application before the court.
HER HONOUR: Yes. What do you want to do with that?
[Solicitor for the father]: I wish for it to remain on foot. Thank you, your Honour.
HER HONOUR: Haven’t I dealt with all of the parenting matters, though? Why would there now – why would I have still before me a future court date for an application when I have given a final outcome in the initiating application?
[Solicitor for the father]: Your Honour, the application was an application to adduce further evidence prior to judgement of this matter. I seek that that remain on foot.
HER HONOUR: But I’ve just given judgment. I dismiss all outstanding applications.
(Transcript 26 June 2024, p.1 to p.2 line 39)
No lawyer appearing on that day identified the fact of the Application in a Proceeding to the primary judge, or brought its content, or the content of the affidavit in support of it, to the attention of the primary judge prior to the delivery of final reasons for judgment. No one requested the primary judge engage with it before such delivery.
The father accordingly had multiple opportunities over the 14-day period between 12 June 2024 and 26 June 2024 to bring the Application in a Proceeding to the attention of the primary judge. He did not explain on appeal how a failure of the primary judge to afford procedural fairness can occur absent knowledge of the relevant action or inaction subject to complaint.
The contention that the father did not have an opportunity to be heard and present his Application in a Proceeding is not accepted. The ICL had not dissimilar opportunities to make the primary judge aware of the Application in a Proceeding. The complaint of the ICL as to a failure of the primary judge to engage with the Application in a Proceeding was in part a function of the ICL’s failure to progress that opportunity. The submission of the ICL as to the course undertaken by the primary judge being an “abandonment of basic judicial process” is misconceived.
In so far as the ground by way of the Summary of Argument contends that the primary judge was in error, after judgment was delivered and final orders made, in making an order dismissing the father’s Application in a Proceeding filed on 12 June 2024, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provide:
5.01 Effect of final orders on interlocutory orders
On the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect.
By operation of the Rules, upon the making of the final parenting orders quelling the justiciable controversy, the interlocutory parenting orders sought to be varied in the Application in a Proceeding had been automatically discharged and ceased to have any continuing effect. Any dispute as to the Application in a Proceeding to adduce further evidence was arid. The request made by the solicitor for the father not to dismiss the father’s Application in a Proceeding filed on 12 June 2024 after judgment was delivered was of no utility and futile. The primary judge was not in error in dismissing the Application in a Proceeding in the circumstances of a perfected judgment concluding the proceeding.
The ground is not established.
Ground 2 – “That the learned trial Judge erred in finding that the maternal grandmother would be doing the bulk of the caring for the child in the father’s home.”
In so far as the father contends that the primary judge made an error of fact, r 13.23(3) of the Rules prescribes that his Summary of Argument must state why the finding was wrong, articulate the finding which ought to have been made instead, and identify the evidence pertinent to the factual dispute. He did not do so. Neither the ground in the Notice of Appeal or his Summary of Argument identified the paragraph of the reasons recording the finding subject to complaint. His Summary of Argument did not identify where the relevant evidence was presented by reference to the appeal book or transcript.
During the hearing of the appeal, the father initially identified [66] and [81] of the primary judge’s reasons as recording the finding subject to complaint. He later adopted the submission of the ICL that it was contained at [67]. Those identified paragraphs record:
66Her father is a loving father who takes the assistance of his mother. The mother of [the child] says that the paternal grandmother is much more involved in [the child’s] care than either the paternal grandmother or the father say in their evidence. I suspect that the father and the paternal grandmother have downplayed in their evidence before me how much the paternal grandmother is involved. It is hard to say how I've reached that conclusion in circumstances where both the paternal grandmother and the father are insistent that the father is the one who does the caring for [the child] when [the child] is with him. The paternal grandmother, I think, says that in the last couple of years [the child’s] only ever spent a couple of nights at her place. But, for example, the fact that the paternal grandmother, without reference even to the father, took [the child] to the mother's sister's place in [Town O] when [the child] was with them during the Christmas school holiday period would indicate that the paternal grandmother is involved to such an extent that what she is doing in terms of arrangements for [the child] when [the child] is in her care, when the father is at the family business for employment, is not even discussed with the father or made reference to the father, where the paternal grandmother just feels at liberty to do whatever she chooses. So it seems to me that that's an indicator that the paternal grandmother is much more involved in [the child’s] care than either the father or the paternal grandmother were prepared to tell the Court about. I suspect that that is a response to them wanting to make it look as though the father is wholly responsible for [the child] when [the child] is in his care, in circumstances where the mother says that the paternal grandmother is really the one doing the primary parenting. So it is hard again to know where the truth lies. I suspect that the paternal grandmother is much more involved in the father's care than either she or the father have said in their evidence to me.
67The relevance of that is that when the child is in the mother's care, the mother is the one who is making the decisions and doing the parenting. She isn't devolving her responsibilities to some other person. The father, in having the support of his mother, seems to be allowing somebody else to be stepping up to the plate. He's the one who is the parent, and it's his application. It seems to me if there is a risk that if [the child] was living in the father's care, in fact, the paternal grandmother would be doing the bulk of that work or the taking of responsibility or the making of arrangements for the child, the one ensuring that the child gets to school, gets home from school, is doing after school things and is generally being attended to. Then it seems to me that is not what this litigation is really meant to be designed for. So I place all of those things on the record as a source of some disquiet for me.
…
81He has the support of his mother who also works in the business and who I would expect also is committed to making sure the family business is doing well. The mother's concern includes this notion that, in fact, the paternal grandmother will have a greater level of responsibility than either she or the father have spoken about. I suspect that that would be a likely outcome that the father would need to rely heavily upon his mother. That, at times, his mother would simply be the one who is asserting responsibility and authority over what was happening.
(Emphasis added)
The construction of the ground does not accurately record what was said by the primary judge. It is a part of a sentence. A reading of the full sentence and other paragraphs of the reasons, in context, is required. Not identified by the father or the ICL was the conclusory finding of the primary judge that the father “may devolve some of those responsibilities to a grandparent” (at [82]).
The primary or conclusory finding by way of inference was as to the prospective assessment of the care arrangements on a day-to-day basis for the child if a determination was made for her to live with the father.
The father submitted in his Summary of Argument that the finding subject to complaint was based solely on evidence in the mother’s case being sourced from what the child had told her, and that the child was five years old and therefore “too immature to properly understand time or report accurately about her time spent” (at paragraph 16).
This theme adopted in the Summary of Argument for the ICL was:
18.The trial judge so concluded, in the face of the appellant and the grandmother’s denial (being the only evidence on the point before the court), and in the face of the grandmother’s assertion that “in the last couple of years [the child] only ever spent a couple of nights at [the grandmother’s] place.”. And so apart from the respondent’s perception and the court’s suspicion nothing supports such a conclusion.
(Bold emphasis added) (Footnote omitted)
The father submitted that the primary judge made assumptions that were “not available” as to the care of the child based on the evidence that the paternal grandmother had taken the child to see the mother’s sister (at paragraph 17). At the hearing of the appeal, he further submitted that the primary judge “relied on her suspicion” that the evidence of the paternal grandmother and the father was “somehow understating the level of care”, and that the content of the reasons “does not get higher than the [primary] judge saying there was a suspicion” as to that subject matter. Implicitly, he submitted that a “suspicion” cannot ground a conclusion as to prospective arrangements as to the care of a child by way of inference. Hence, he contended that the primary finding, as identified in the ground, was “not a finding that was readily available to the trial judge to make”.
As a starting point, the Full Court in Khatri & Khatri [2024] FedCFamC1A 152 recorded:
52Authorities 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]).
Next, simply because other findings of fact may also have been open on the evidence before the primary judge does not demonstrate that a finding of fact complained of was thus not open or available. That is not the test. The test is whether the finding of fact, or findings of fact material to the exercise of discretion, have been shown to have not been reasonably open (Edwards v Noble (1971) 125 CLR 296 at 304).
It is legitimate for the primary judge to ponder and consider hypotheses when assessing prospective parenting arrangements for the child. The reasons illustrate the primary judge’s careful consideration of realistic possibilities.
The conclusory finding subject to complaint by way of the ground, contrary to the submissions of the father and the ICL, was not grounded only from the evidence of what the child told the mother. The complaint as to the sole evidence to ground the conclusion is inaccurate. A consideration of all the evidence available to ground the conclusion subject to challenge flowed not only from the advantages of the primary judge in hearing and assessing all of the evidence of the father, the grandmother and what the child had told the mother, but in addition from other subsidiary factual findings made which are not challenged on appeal. An accurate reflection of the other considerations grounding the assessment of the prospective parenting arrangements for the child living in the father’s household include:
(a)At [80], that the father works full time from 7.00 am until about 3.00 pm, that he is “absolutely committed” to the family business and its early morning starts, that he was unable to drive the child to school on Monday mornings, and that he had no experience of being a full-time carer of a school-aged child with all of the commitments that come with it; and
(b)At [28] and [66], that the paternal grandmother unilaterally took the child to see the mother’s sister, without consulting the father, whilst being aware that the mother and the mother’s sister were estranged, knowing that it would be “offensive” for the mother.
It was open for the primary judge to find that these were indicators that the paternal grandmother was more involved in the care of the child than she or the father was prepared to concede in their evidence. The father did not elucidate how each of these subsidiary factual findings, not challenged on appeal, were unavailable to the primary judge.
Whilst other judges may have reached different a factual conclusion on the evidence, it cannot be said that the findings (at [67] and [81]) were not reasonably open to the primary judge. Establishing a different view is not enough to displace a factual finding (Fox v Percy (2003) 214 CLR 118 at [17]). No evidence was identified on appeal as to why the primary judge was compelled to accept the evidence of the father and the grandmother. The conclusion of the primary judge in assessing the prospective parenting arrangement for the child should she live in the father’s home was not inconsistent with incontrovertible facts or uncontested testimony, nor was it glaringly improbable or contrary to compelling inferences (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550). The primary judge explained the pathway of reasoning in making the inference subject to complaint in a cogent and balanced manner. No compelling submission or persuasive argument was made to the contrary.
This ground is without merit and fails.
Ground 3 – “That the learned trial Judge erred by failing to consider the consequences for the child of the mother’s allegations of abuse and her unilateral relocations contrary to court orders.”
Ground 4 – “That the learned trial Judge erred in failing to consider the effect that the mother’s fixed belief that the father had sexually abused the child has had on the child and the implications for the future parenting orders.”
These grounds were grouped for the purposes of the appeal. Each ground contends a discretionary error by way of a failure consider identified relevant matters. The father in his Summary of Argument distilled the subject matters that the primary judge did not consider to be:
(a)As to Ground 3:
a. That Mother had unilaterally moved contrary to court orders.
b. The significance of the mother disregarding court orders.
c.That the mother’s intention was to move to [Town G] to live with her new partner.
d.That the town of [Town G] was one of [less than 1,000] people [...].
e.The possibility that, should the new relationship fail, the mother would again move the child to new town and the effect such future moves would have on the child (given her history of frequent moves contrary to Court orders).
f.The mother has reported alleged sexual abuse as a pretext for a unilateral relocation.
g.The child has been subjected to at least two physical examinations, several meetings with departmental offices and at least one 93A interview.
h. The implications to the child of being subjected to ongoing investigations.
(b)As to Ground 4:
42.The court failed to consider the implications for the child of the mother’s belief that the father had sexually abused the child…
…
45.The mother is not mandated by the orders to attend counselling to assist her to understand the developmental needs and maturity of the child and why the child may report allegations which are unfounded. The risk of further intrusive investigations was not considered by the Trial Judge in her reasons for decision and the emotional abuse being perpetrated by the mother on the child. It was an error of law not to consider those matters. If they had been considered the court would have come to a different conclusion about the orders made in this matter.
The father contends that, if the matters had been considered, then the primary judge would have reached a different conclusion. The complaints are incorrect as to a failure to consider the identified matters.
Contrary to the assertions in the grounds, the reasons explicitly record consideration:
(a)As to the mother having unilaterally moved contrary to court orders, and the significance of such circumstance, (at [6], [13], [16], [18], [19], [63], [71], [83], [90], and [91]), including taking into account that at various periods of time that the child was not able to see the father (at [54] and [55]).
(b)Of the allegations of the mother of sexual abuse by the father. The primary judge made unequivocal findings there was no evidence that the father sexually abused the child (at [8], [60], and [61]), that there was no evidence that the child was scared of the father (at [60]), and that there is no risk of the father sexually abusing the child (at [60], [68], and [83]).
(c)As to the mother having a firm belief that the father has sexually abused the child (at [55] and [57]–[59]), which in turn creates anxiety and concerns for the mother (at [44] and [56]), and which is unlikely to change (at [57]). The primary judge expressly considered that there was a “very confused message” from the mother, by way of her firmly held belief that the father had sexually abused the child and at the same time consenting to orders for the father to spend unsupervised time with the child. The considerations of the primary judge as to these subject matters are found at [7]–[10], [23], [47]–[56], [58], [60], [61], [68], [79], [83], [86], [87], and [90].
(d)As to the mother’s intention to move to Town G with Mr J, findings were made at [6], [26], and [88] that the mother wants to live with Mr J in Town G.
(e)As to Town G being a town of less than 1,000 people, the primary judge considered at [74] that Town D was a bigger community than Town F, and that Town F was still yet a bigger community than Town G.
(f)As to the possibility of the relationship of the mother and Mr J failing, the primary judge acknowledged that “[t]he relationship isn’t a long-standing relationship at this stage, but it may be one in the future” (at [88]).
(g)As to the mother making sexual abuse allegations as a pretext to unilaterally relocating with the child, the primary judge expressly considered that these issues were “very closely aligned” (at [71]). This consideration will be further explored below.
(h)As to the child having been subject to physical examinations, the primary judge expressly recorded that the child was subject to a 93A interview (at [51]), other interviews with (at [52]), and physical examinations (at [50]).
(i)As to the implications on the child of being the subject of future ongoing investigations, the primary judge expressly considers (at [68]) that there is a risk of harm to the child arising from the mother “having potentially a disproportionate level of hypervigilance about [the child] being at risk in the father’s care”.
(j)As to the mother subjecting the child to “emotional abuse”, in addition to the primary judge identifying physical examinations and interviews with the child, the reasons (at [68]) record that “[t]here is a risk of harm to [the child] in the ongoing dispute between the parents and a risk to [the child], which I can’t quantify, to do with her mother having potentially a disproportionate level of hypervigilance about [the child] being at risk in the father’s care.”
(k)As to the mother not being mandated by the order to attend counselling, the primary judge considered the evidence from the Family Report writer in both Family Reports that, if the finding was made that there was no evidence of any sexual abuse, then the mother would require counselling to assist her with any erroneous but persistent beliefs. A primary 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 (Hall and Hall (1979) FLC 90-713 at 78,819). The primary judge found, unchallenged on appeal, that no evidence was adduced as to the identity of any person who could provide this “very specialist counselling”, whether such counselling existed in a place that could be accessed by the mother, and further considered that the mother did not have financial resources to access it privately if it was available (at [57] and [62]). The primary judge further said that “it is difficult to see what counselling the mother might take up to help her understand that her views about the child being at risk of sexual farm in the father’s household are not helpful, whilst acknowledging how important it is for a parent to take seriously things that a child says” (at [83]). The primary judge gave a reasoned explanation for why there was departure from the recommendations of the single expert (DL v The Queen (2018) 266 CLR 1 at [130]–[131]). No error is established in the primary judge failing to make orders for the mother to attend counselling as opined by the Family Report writer.
Each of the grounds, contending appellate error by a failure to consider the identified matters, were constructed imprecisely. The reasons as identified herein record that the primary judge did not overlook the particulars complained in either Ground 3 or Ground 4.
The primary judge explicitly outlined the allegations of sexual abuse as a pretext to unilateral relocation of the child by way of conclusory considerations:
46The father is concerned that the mother's behaviours time and time and time again indicate a lack of interest in fostering or maintaining a relationship between [the child] and her father, and it is easy to see why the father would think that that was the case. The chronology is clear that the mother has time and time again made allegations to her general practitioner, who is a mandatory notifier, which has caused Department of Child Safety investigations and police investigations to occur, even at times when, right at that moment, the mother was consenting to parenting orders which would have [the child] spend unsupervised time with the father.
47So, there is this very confused message that has been happening from the mother's side, and nowhere in any of the evidence am I helped to understand how that confused messaging has come into existence, and what that confused messaging means for what the mother will do in the future if [the child] says something which the mother considers to be consistent with sexual abuse allegations or how the mother will respond as her child gets older with respect to any complaints that [the child] might have about anything that happens in the father's household, whether it is of a sexual nature or otherwise.
…
71The issue for [the child], also potentially as a source of harm, comes from the mother's consistent desire to be living somewhere other than 100 kilometres from [Region C]. She has consistently wanted to do that and has then agreed to Court orders which would compel that of her and almost immediately she has plainly regretted that and has sought yet again to move away. So even during these proceedings, she sought to leave and sought again of the father his permission for her and [the child] to go. It seems to me an ongoing source of harm for [the child] is this dispute between the parents about whether [the child] can move to live somewhere further away from [Region C] with her mother. That, it seems to me, is as big an issue, if not a bigger issue, than the issue of the sexual abuse. It seems to me these issues are very closely aligned, that the mother has at times raised the prospect of the sexual abuse allegations at times when she has wanted to be able to move. I am not at all clear whether the mother is aware of that herself, the link in proximity between wanting to move, feeling as though she can't move, and then the raising of sexual abuse allegations. I did not form the view that the mother was deliberately manipulative with any of these behaviours, but plainly the mother does not want to keep living close to [Region C]. And remembering it's the father who has family in [Region C], the mother doesn't. The mother doesn't have a great connection to that area. She moved there herself as a young adult, but she has long since not wanted to live in the area.
(Emphasis added)
The reasons then record:
86There is no basis for me to form a view that the mother's concern about child sexual abuse was somehow done in anything other than a genuine way. The evidence does not support any finding that the mother has been malicious or vexatious in those views, but that the child having said things to her has caused her to be concerned and has caused her to take steps. There is no reason for me to have an adverse view about the mother for her having those concerns and even persisting with those concerns.
87The mother could likewise be criticised if these things were said to her, and she took no steps. Or she thought that there was nothing further that she needed to understand. The fact that the mother has taken a view about them, that the child is at risk in the father's care, also needs to be balanced with the fact that the mother, plainly, with the assistance of Lawyers from time to time, has understood that it's important for [the child] to have an ongoing relationship with her father in an unsupervised way. So I do not overly criticise the mother for the views that she's taken, although it seems to me the mother needs to be working out for herself what assistance she needs to take to ensure that any hypervigilance that she experiences will not adversely impact [the child] going forward.
(Emphasis added)
The primary judge further considers (at [90]), that the mother’s belief is “a source of disquiet” for the father, notwithstanding that it is “difficult to criticise the mother in circumstances where there is no evidence that that view is one the mother is doing to be malicious or vexatious towards the father”, and that there was no basis to form a view that her concerns were “anything other than a genuine way” (at [86]).
At the hearing of the appeal, the father’s complaint by way of these grounds shifted, submitting that there was “perhaps limited assessment” of the effect on the child of the allegations raised. That submission is contrary to the ambit of the grounds, in that they contend that the primary judge erred by “failing” to consider. Nevertheless, in so far as this included the child being subject to ongoing investigations due to the firm belief held by the mother, this was expressly borne in mind by the primary judge as recorded earlier in these reasons.
The ICL in the Summary of Argument submitted that a consideration by the primary judge of the complaints identified in Grounds 3 and 4 “should have weighed more heavily” in the exercise of discretion and that the trial judge “should have looked forward”, “and better considered” future risks (emphasis added). The ICL identified their own conclusion that the mother had not “yet” damaged the relationship between the child and the father.
The father and the ICL’s complaints by way of the grounds became a contention as to a failure of the primary judge to give proper consideration to the identified matters akin to a weight complaint. Not dissimilar complaint is made as to reasons in Ground 5. As recorded, the primary judge identified and appropriately weighed the matters subject to complaint.
At the hearing of the appeal the father attempted to incorporate into these grounds a complaint that the primary judge “assumed” that the relationship between the child and the father has not been damaged by the mother’s allegations of sexual abuse, and that such assumption could not be made in circumstances where the Family Report writer noted that the child was aware of the issues and the poor relationship between the mother and the father.
He submitted “there seems to have been no consideration” that the “good relationship of the child and the father was also as a consequence of the father’s involvement and engagement in the child’s life”, and that therefore “there has been unfair credit given to the mother” in the fostering of that relationship. Notwithstanding this submission also falling outside of the ambit of the grounds, it is an inaccurate reflection of the findings of the primary judge. The primary judge does not give the mother “credit” for the good relationship of the child and the father. The findings of the primary judge, not challenged on appeal, were as to a loving, stable, and secure relationship between the father and the child that is meaningful to the child (at [9]), that the child had sustained, maintained, and grown her relationship with the father (at [44]), and that “the way that the father interacts with the child and the parenting that he does of [the child] when she is in his care plainly is such that [the child] has a good relationship with him” (at [45]).
Grounds 3 and 4 do not have merit.
Ground 5 – “That the learned trial Judge gave inadequate reasons for her decision.”
The primary purpose of providing reasons is to ensure that the parties understand why a decision was made (Bennett and Bennett (1991) FLC 92-191).
As to the first limb of this ground, the father advanced in his Summary of Argument:
56.There is no explanation about the legislative pathway or the presumption of equal shared parental responsibility or the effect such a finding has on the time the court should order.
…
80.The [father] submits that because failure to address the relevant law in sufficient detail to identify the legislative pathway, the effect of the presumption of ESPR, and the s60CC factors, and the failure to properly identify and address issues in the evidence the appellate court is unable to discern either expressly or by implication the path by which the result has been reached.
The final hearing commencing prior to 6 May 2024. The amendments to Pt VII of the Act, by way of the Family Law Amendment Act 2023 (Cth), did not apply to the proceeding. The primary judge correctly approached the determination of the parenting issues in accordance with the provisions Pt VII of the Family Law Act 1975 (Cth) (“the Act”) as they were prior to 6 May 2024.
The first limb of the ground is forlorn. The reasons of the primary judge:
(a)At [30], identify the prior orders made as to the father and mother equally sharing parental responsibility and the competing current relief as to parental responsibility.
(b)At [35], identify the parameters of the parenting dispute being defined by the respective proposals, such that it was assessed by each of the parties that the distances between Town B (being the place where the father would not move from and would continue to live) and any of Town F, Town D, or Town G (being the mother’s options as to the locations she would live, she not being prepared to live in Town B) were too great for an equal or significant and substantial time regime to be practicable.
(c)At [36], record an implicit conclusion that in that circumstance any presumption arising from the equal sharing of responsibility will not apply, and that a consideration of s 60CC factors will determine issues as to parental responsibility and with whom the child should live.
(d)At [37], identify that there were two primary considerations (s 60CC(2)) being the benefit to the child of having a meaningful relationship with both of the parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect, or family violence, and that “[m]ost of the evidence in this matter goes to those two big ticket items.” The relevant additional considerations (s 60CC(3)) are then the subject of identification and evaluation (at [38]–[83]). No compliant was made as to the primary judge not considering a relevant s 60CC factor.
(e)At [93], after concluding the evaluation of the relevant s 60CC factors, the primary judge turned to the determination as to the allocation of parental responsibility, grounded from the findings as to the child’s best interest.
The complaint by way of the first limb of the ground has no merit.
The second limb of the ground was veiled as inadequate explanations of the discretionary considerations and evaluations of the primary judge. The father’s Summary of Argument as to this limb of Ground 5 recorded a selective series of incontrovertible facts, laced them with submissions made at trial, then devolved into repetitions of complaints contained and dealt with in Grounds 3 and 4.
For example, by way of a reasons complaint in Ground 5, the father contends that the primary judge erred in failing to consider “whether the mother’s notifications [of sexual abuse] were manufactured to affect a move, and the implications that had for the mother’s parenting capacity” (at paragraph 63). This complaint is again a repetition of a particular of Ground 3. By way of a reasons complaint in Ground 5, the ICL submitted as to the primary judge not making an order for the mother to undertake counselling (a repetition of a particular in Ground 4):
36.The trial judge concluded that “it seems to me the [respondent] needs to be working out for herself what assistance she needs to take to ensure that any hypervigilance that she experiences will not adversely impact [the child] going forward.” [...] With respect, the Independent Children's Lawyer strongly disagrees.
(Bold emphasis added) (Footnote omitted)
On the same subject matter, at the hearing of the appeal, the father submitted that “if the Court had said that counselling could be used to ameliorate that effect”, of the fixed beliefs of the mother, “then perhaps the reasons wouldn’t have been inadequate in respect of that particular matter. But in fact… what the [primary] judge opined was that the mother needed to come to her own view about that and didn’t recommend any form of counselling to assist her in respect of that.”
Each is not a submission as to inadequate reasons. They are a disagreement with the determination of the primary judge not to require the mother to undertake counselling as identified by the Family Report writer. A complaint at to weight in circumstances where the primary judge did not accept the interpretations of evidence as promoted by the father and the ICL, or as to the primary judge identifying an evidentiary vacuum in the proceeding, does not in and of itself constitute appellate error by way of a reasons ground. The prosecution of Ground 5 broadly devolved into attempting to re-run the case at trial on appeal and seeking for the appellate court to substitute its discretion for that of the primary judge.
The definitive findings which motivated the decision for the child to live with the mother within 300 kilometres of Region C, and being satisfied that the child could have a meaningful relationship with the father if she lives with the mother and spends time with the father “a couple of weekends per term time and for half of school holidays” were:
(a)That the mother had been the “uncontested parent” for the child since 2021 (at [89]).
(b)That the child had a meaningful relationship with both of her parents (at [38] and [42]).
(c)That notwithstanding the unilateral relocations of the mother with the child and the mother’s conduct and beliefs (at [44] and [45]), the child retained a loving, stable, and secure relationship with the father.
(d)That it was “difficult to criticise” the mother as to her erroneous belief that the father had sexually abused the child, where there was no evidence that the mother was malicious or vexatious towards the father (at [90]).
Substantial changes in the living arrangements of the child were proposed on the case of each of the mother and the father (at [64] and [72]). The primary judge undertook an adequate analysis as to the advantages and disadvantages to the child of the respective proposed changes contained in each alternative set of orders (at [72]–[82]). The impact of the allegations of sexual abuse and their relationship with the unilateral moves of the mother contrary to court orders was not lost on the primary judge. The weighing of the s 60CC factors included an express consideration of the risks associated with those subject matters, as was its impact on the current meaningful relationship between the father and the child, and its impact prospectively. The weight that was afforded to the evidence and each factual consideration is quintessentially a matter for the primary judge (Gronow). The primary judge concluded that that “the biggest source of difficulty for the child going forward in terms of risk of harm is the ongoing dispute between the parents of whatever source”, and that if the child was to live with the mother subject to a requirement that she live not further than 100 kilometres from Region C, that the very real dispute that exists “will continue to persist” (at [90]–[91]).
The primary judge determined that the option chosen was the best way forward to promote the child’s best interests to ameliorate risk while ensuring the child maintained a meaningful relationship with each parent.
The reasons identify the basis of the decision and the extent to which the parties’ submissions were understood. The reasons do justice to the issues posed by the parties in the proceeding (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). As the reasons explain the outcome, they are adequate, even if the father and the ICL disagree with the decision. This ground fails.
Ground 6 – “The orders were so contrary to the evidence adduced at the final hearing so as to represent an error of law.”
As to this ground, the father’s Summary of Argument commences with the identification of incontrovertible facts laced with submission, then devolving into further repetitions of complaints contained and dealt with in Grounds 3 and 4. The ICL adopted the contents of the father’s Summary of Argument absent additional submission.
Adopting a generous interpretation of the ground, the father relies on the principle emanating from the concluding part of the passage recorded earlier in the reasons in House. There, the High Court, after setting out specific errors that might inform discretionary error on appeal, said:
… the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure to properly exercise the discretion which the law reposes in the court of first instance.
More recent statements of the High Court make it clear that any unreasonableness or injustice must be so plain that the appellate court finds a substantial wrong to have occurred (Lovell v Lovell (1950) 81 CLR 513; Gronow; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194).
A very broad discretion is exercised in the making of parenting orders. As was identified in Kellerman & Kellerman [2024] FedCFamC1A 126:
22There is no doubt that in making parenting orders, the Court is exercising a very broad discretion. In CDJ v VAJ (1998) 197 CLR 172 the majority said “The evidence in residency cases is often such that the same body of evidence may produce opposite but reasonable conclusions.” (at [140]). They: added:
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [[1985] FLR 894 at 897–898], Lord Fraser of Tullybelton pointed out:
“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”
23The burden placed on an appellant seeking to establish that a discretionary decision is unreasonable or plainly wrong is thus a heavy one.
(Emphasis added)
Minds can differ in the exercise of judgment when evaluating a prospective regime promoting the best interests of a child. As was identified by the High Court in CDJ v VAJ (at [151]) such determinations necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. The conclusions reached by the primary judge were reasonably open on a due consideration of the evidence, such that the overall determination was within the bounds of the reasoned exercise of discretion. The orders made were not unreasonable or plainly wrong. The ground fails.
CONCLUSION
The appeal will be dismissed. In that event no party sought costs.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 14 November 2024
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