Lim & Zong
[2020] FamCAFC 20
•31 January 2020
FAMILY COURT OF AUSTRALIA
| LIM & ZONG | [2020] FamCAFC 20 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders on an interim basis providing for no time or communication between the father and the child – Where such orders were not proposed by any party – Where the primary judge did not raise, with the parties, those orders as being in contemplation – Where the mother made serious allegations of family violence perpetrated by the father upon the mother and the child – Where the father disputed those allegations – Consideration of principles of factual findings in interim proceedings – Consideration of Salah & Salah (2019) FLC 93-713 – Where the primary judge made concluded findings of fact on disputed issues and on untested evidence – Where the making of such findings is an error – Appeal allowed – Proceedings remitted for further interim hearing. |
| Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG, 68L, 94AAA(3), 102NA(2) |
| Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Salah & Salah (2016) FLC 93-713; [2016] FamCA 100 SS & AH [2010] FamCAFC 13 U v U (2002) 211 CLR 238; [2002] HCA 36 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 |
| APPELLANT: | Mr Lim |
| RESPONDENT: | Ms Zong |
| INDEPENDENT CHILDREN’S LAWYER: | Julie Harrington Solicitor |
| FILE NUMBER: | BRC | 8160 | of | 2014 |
| APPEAL NUMBER: | NOA | 85 | of | 2019 |
| DATE DELIVERED: | 31 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 22 January 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2662 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person via telephone |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fraser |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Julie Harrington Solicitor |
Orders
Leave be given to the respondent mother to appear by telephone at the appeal hearing on 22 January 2020.
Leave be given to the respondent mother to rely upon her Summary of Argument filed on 31 December 2019.
The appellant father’s Application in an Appeal to adduce further evidence filed on 4 December 2019 be dismissed.
The appellant father’s Application in an Appeal to adduce further evidence filed on 15 January 2020 be dismissed.
The appeal be allowed and the orders made on 20 September 2019 be set aside.
The proceedings for interim orders be remitted for a rehearing in the Federal Circuit Court of Australia by a judge other than the primary judge.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lim & Zong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 85 of 2019
File Number: BRC 8160 of 2014
| Mr Lim |
Appellant
And
| Ms Zong |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
After a contested interim hearing on 2 September 2019, involving disputed and untested allegations of family violence, a judge in the Federal Circuit Court of Australia (“the FCC”) made interim parenting orders on 20 September 2019 (amended on 30 October 2019) concerning the subject child born in 2012 who is thus aged 7 years.
The interim orders provide for the child’s mother to have sole parental responsibility for the child and for the child to live with the mother. An order was also made that:
4. The father shall spend no time and not communicate with the child.
Further orders made included an order that the father consult a clinical psychologist and for that psychologist to:
… prepare a report addressing whether there is a risk to the mother and to the child being exposed to further family violence by the father.
The dispositive issue in the father’s appeal[1] from the interim orders is whether the primary judge made concluded findings of fact on contentious issues and untested evidence such that the proceedings miscarried and the orders are thus infected by error.
[1] The jurisdiction in this appeal is exercised pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Each of the mother and the lawyer appointed to independently represent the child’s interests in the proceedings[2] (“the ICL”) oppose the father’s appeal notwithstanding that the orders made by the primary judge did not reflect the orders proposed by either of these parties, as to the child spending time with the father, as will be discussed.
[2] Pursuant to s 68L of the Act.
Background
Both parents are of Chinese origin for whom Mandarin, rather than English, is their first language. Both were self-represented in the proceedings before the primary judge, as they were on appeal. Whilst each parent can speak some English, they required the assistance of an interpreter in the Mandarin language both in the proceedings before the primary judge and in the appeal. The mother attended on the appeal via telephone.
Undoubtedly, the level of difficulty for the primary judge dealing with contested interim parenting proceedings was added to exponentially by the fact that both parents did not speak English as their first language; had no relevant legal training or experience; and were self-represented.
The father was born in 1975 and is now aged 45 years. The mother was born in 1980 and is now aged 39 years. The parents married in China in 2006 and moved to Perth in July 2007. As noted, their child was born in 2012 in Perth. On the mother’s case, the parties separated on 21 September 2012.
In January 2013, the mother and child left China (having returned there after the child’s birth) and moved to Brisbane. They have remained in Brisbane ever since. The father, who continues to reside in Perth, commenced proceedings in the Brisbane Registry of the FCC on 9 September 2014. Those proceedings culminated in final orders, made by consent, on 27 October 2014 which provided for the parents to have equal shared parental responsibility; and for the child to live with the mother and spend time with the father, as agreed between the parents.
The father recommenced proceedings on 5 May 2015 claiming the mother was only permitting him supervised time and claiming he had not seen the child since 9 March 2015. Those proceedings were discontinued on 9 February 2016.
On 11 July 2017, the mother commenced proceedings following the father’s failure to return the child to her. Those proceedings culminated in orders made by consent in the FCC for the father to return the child to the mother. Further orders for time for the child with the father were also made.
On 22 September 2017, a further order was made in the FCC on the mother’s application for the child to be returned to the mother and, in the event of the failure by the father to do so, a recovery order was to issue.
On 8 February 2018, interim parenting orders were made in the FCC which were later varied by a further interim order made on 19 September 2018. In summary, the combined effect of those orders was that the parents had equal shared parental responsibility for the child; the child lived with the mother and those orders otherwise provided for the child to spend holiday time with the father on an unsupervised basis, as well as weekend time if the father provided advance notice of weekends when he would be travelling to Brisbane from Perth.
Originally, the proceedings were listed for a final trial to commence on 2 September 2019. However, orders made by the primary judge on 30 August 2019 included orders observing the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) necessitating steps being taken to secure legal representation for the purpose of cross-examination of each party in the context of family violence allegations and protection orders. Thus, the trial dates were vacated but the proceedings remained listed for an interim hearing to take place on 2 September 2019.
Also of importance, on 5 July 2019, the Western Australian Police executed a search warrant at the father’s residence based on information regarding the downloading of Child Exploitation Material at that address (at [67]). The child was present during the search.
The father’s discussion of that incident with the primary judge was prone to raise some suspicion – the father first telling the primary judge that one police officer attended, then that there were 10 officers and claiming not to know the name of a gentleman present at his house at the time of the search, stating only that he was a “man who looks after his dog” (at [67]; Transcript 2 September 2019,
p.40–48). It appears it was that man who the police were interested in, rather than the father.
At the interim hearing, the mother sought orders, in summary, that:
a)The child live with her;
b)That she have sole parental responsibility;
c)The child spend time (unsupervised) with the father for no more than two weekends per month in Brisbane, as well as school holiday time in both Brisbane and Perth, in some instances for the whole school holiday period;
d)The father communicate with the child via FaceTime; and
e)Changeovers occur at Brisbane or Perth domestic airports.
The ICL sought the following interim orders (recorded at [10] of the primary judge’s reasons for judgment):
a)The child live with the mother;
b)The mother have sole parental responsibility; and
c)The father have supervised time with the child at a contact centre for no more than one weekend per school term with one month’s notice to be given.
For his part, the father essentially sought a continuation of the orders as made on 8 February 2018 and varied on 19 September 2018 as earlier referred to. Those orders, in summary, provided for the father to have unsupervised time including holiday time, for the child to live with him for the second half of term four holidays, and for the child to be able to spend weekends with the father when he came to Brisbane.
Obviously, the proposal of each parent and the ICL was framed by reference to the father continuing to live in Perth and the mother and child living in Brisbane.
As will be immediately apparent, neither parent, nor the ICL, sought an order in the terms of the order ultimately made by the primary judge, that is an order for the child to have no time or communication with the father. The position of each of the mother and the ICL that there ought be orders for the child to spend time with the father, at least on an interim basis, was despite the recommendations of the family consultant in a then very recently produced family report including a recommendation that there be no time.
This must be qualified to the extent that, whilst not referred to in the reasons for judgment, reference to the transcript (see Transcript 2 September 2019, p.8 lines 5-7) discloses that the ICL submitted, as an alternative, that in the event that the contact centre would not accept the family, there be a suspension of the father’s time pending trial.
As will be further discussed, in circumstances where no party proposed, as their primary position, an order for no time or communication between the child and the father on an interim basis, a question of procedural fairness to the father arises. That is, whilst the Court is obviously not bound by the proposals of the parties, the adoption of a proposal different to any advanced before the Court by a party, requires procedural fairness to be observed.[3]
[3]U v U (2002) 211 CLR 238.
Allegations of family violence
A central feature of the proceedings was the significant body of allegations by the mother against the father, over a significant period, concerning family violence within the meaning of s 4AB of the Act. Importantly, all of these allegations were denied by the father. It was the father’s case, in summary, that the mother had historically advanced false allegations as a means of interfering with, or limiting, the father’s relationship with the child.
The primary judge outlined the mother’s allegations in some considerable detail at [28]–[72] of the reasons for judgment, noting in the course of so doing that the father denies the allegations. The allegations are undoubtedly of a serious kind. Without being exhaustive, drawn from the primary judge’s reasons at [28]–[72] it can be seen that the allegations, in summary and paraphrased form, include the following:
a)During the relationship, the father would attempt to control the mother by withholding her mail, threaten the mother’s friends not to socialise with her, only allowing the mother to open doors and windows a set amount, not allow her to leave the house without his permission, threaten to burn the house down if she left the relationship, throw objects at the mother, verbally abuse the mother, threaten to break the mother’s legs if she left the relationship and punching walls in the house during arguments with the mother;
b)That the father was cruel to animals by tying cats in strange shapes and tying them to trees, holding a kitten under water which subsequently died, attacking a cat with a power drill, tying their dog to the tree with wire and tying its muzzle shut with wire, not feeding the pets nor allowing the mother to feed the pets adequately;
c)Subsequent to their separation, the father sent the mother numerous abusive emails and text messages in which he would, inter alia, threaten the mother, threaten suicide, beg the mother to reconcile the relationship, accuse the mother of being a “bad mother” and insult the mother and her family. At [72], the primary judge sets out the translations of such emails which were sent between 9 July 2016 and 8 August 2017;
d)The father also engaged in behaviour such as breaking into the mother’s home and refusing to leave, waiting outside the mother’s house for hours at a time and yelling at her to reconcile the relationship. At times, the father would accompany the mother to her car at changeovers and jump in the mother’s car where he would stay, refusing to leave for hours at a time. The father would regularly threaten the mother that he would take the child and she would never see the child again, that the father would attempt to lock the mother in his house when she attended there for changeovers. These instances sometimes involved the police being called; and
e)When both parties attended the Court for family report interviews, the father verbally abused the mother and her partner in front of the child and in public and, that evening, the mother was required to collect the child from the father at the airport and, once there, the father chastised the mother such that security and the police were required to intervene. A similar event took place in Perth when the mother took the child there to spend time with the father during school holidays in April 2019.
Because the matter was originally set down for a trial, the ICL had prepared a tender bundle of documents which was tendered in evidence before the primary judge. Documents within the tender bundle provide corroboration at least for the fact that, historically, the mother has advanced complaints against the father.
For example, as is referred to in the primary judge’s reasons, the tender bundle confirms that the mother has had numerous domestic violence orders made naming the father as the respondent and the mother as the aggrieved. The first was made on 12 June 2013 (at [33]); the second on 5 November 2014 (at [36]); the third on 25 February 2015 (varied on 26 June 2015 to remain in force until 24 February 2017 – at [40]); the fourth on 18 September 2017 which was to remain in force until 29 August 2019 (at [54]); and the last being obtained on 26 August 2019 and submitted to be for a period of five years (at [71]).
However, the father pointed out on the appeal that there had never been a trial of any domestic violence proceedings and any orders the father had ever consented to were consented to without admission. Moreover, the father pointed to an example of where he successfully had a domestic violence order amended because it named the child as well as the mother as “an aggrieved person” and the amendment was to delete the child’s name from the order.
Moreover, aside from the ICL’s tender bundle, the father tendered documents which he asserted supported his case. These included emails from the mother to him which he argued demonstrated that the mother threatened him with loss of contact with the child. As but one example, the father referred to an email from the mother to him which was Exhibit R3 in the proceedings which contains “if everything goes to court finally, I won’t promise what happen next. I can work globally as you know”. The father took that to be an intimation or threat by the mother that she might relocate internationally with the child.
The father also sought to emphasise some documents tendered before the primary judge in support of his argument that the mother is not frightened of him, and recording the mother as denying any threats made towards her or the child. An example of this is the inpatient summary dated 21 December 2014 which was admitted as Exhibit R1.
The primary judge also had in evidence two reports prepared by a family consultant, the latest of which was dated 26 August 2019 and which was provided to the parties only on 30 August 2019, when the interim hearing was to take place on 2 September 2019. It is in that report that the recommendation is contained that there be no time between the child and the father. Both reports include extensive reference to the mother’s allegations of family violence perpetrated by the father against her. On a reading of the reports, it is clear that the family consultant plainly accepts the mother’s allegations, and rejects the father’s denials of allegations. As is recorded in the primary judge’s reasons for judgment, the family report noted that family violence was at its worst when the parents “were face to face” (at [88]) and that, in the view of the family consultant, “the father was likely to continue to perpetrate family violence towards the mother in a coercive controlling manner at handover in the child’s presence”. The family consultant also opined that the father is “likely to continue to make negative and derogatory remarks about the mother and her family to the child” (at [91]).
Approach of the primary judge
In Salah & Salah (2016) FLC 93-713 (“Salah”), the Full Court undertook a review of authority, commencing with Goode and Goode (2006) FLC 93-286, as to the principles to be applied by a judge in considering disputed allegations of family violence in an interim hearing. Notably, the primary judge made extensive reference to, and quoted extensively from, Salah. It is instructive to set out the same paragraphs from Salah which were either referred to, or quoted in full, by the primary judge. Emphasis will be added for the purpose of highlighting the many references made in Salah to the inability of a judge, in interim proceedings, to make findings on disputed and untested allegations (at [33]–[45]):
33. Section 61DA is as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
….
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
34.Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (supra) was emphasised in the decision of Treloar:
78.The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. …
35.Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.
36.It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68.…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
37.In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
38.The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
39.In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
40.The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH).
41.The difficulty in this case, and one clearly identified by counsel on the appeal, is that his Honour, after correctly observing at [58] that he could not, at that point, make findings on the disputed allegations, continued and said; “...In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.” Simply put, his Honour having determined that he could not make any findings, ignored the allegations and found the presumption of equal shared parental responsibility applied.
42.His Honour’s comment “given no other evidence” suggests that his Honour required corroboration or objective support for the mother’s allegations in proof of them. To so suggest is an error. Family violence often takes place in private in circumstances where no corroboration is available.
43.Further, his Honour’s erroneous treatment of the issue is further demonstrated at [69] where he repeats, again incorrectly, that findings cannot be made as to whether either party perpetrated family violence at an interim stage given conflicted evidence and said; “The civil standard of proof is met by neither”.
44.His Honour’s reference to the civil standard of proof is not only incorrect but entirely inapt in the context of, as he had said, disputed allegations of significant family violence raised in interim proceedings.
45.His Honour was in error in, in effect, failing to pay any heed to allegations which he had earlier regarded as “significant” and in failing to consider those allegations in the context of an interim hearing.
(Emphasis added)
As was made clear by the Full Court in Salah, whilst the limitations of an interim hearing preclude a judge from making concluded findings of fact on disputed issues and untested evidence, s 60CG of the Act – the requirement to consider the risk of family violence – is not constrained in its operation despite that inability.
Having referred to Salah at length, the primary judge then moved (at [22]–[25]) to the s 60CC(2) primary considerations and after referring to some authority noted, at [27]:
27.These are interim proceedings and to that extent there is an abundance of untested evidence. The Court is limited in making findings of fact where matters are seriously in dispute. Notwithstanding that, the Court is required to assess the risk (if any) to the child in spending time with a parent about whom it is asserted poses a serious risk to the child.
As will be discussed, the central question is whether the primary judge heeded her own observation as to the Court being limited to assessing risk, rather than making concluded findings of fact, when issues of fact are seriously in dispute and evidence is untested.
As earlier noted, the primary judge set out, in careful detail commencing at [28], the mother’s allegations of family violence briefly summarised above. In the course of so doing, her Honour referred to police records as to the mother’s reports (for example, at [39]) as well as reports by the father (at [41]). In the main, [28] and following consists of a discussion of the mother’s allegations as contained in her affidavit.
At [70] and [71], her Honour refers to family violence orders. I interpolate here that one of the father’s complaints on appeal is directed to the primary judge observing, in [71]:
… The mother advised the Court that she had obtained a further 5 year Protection order against the father on 26 August 2019.
As the father points out, there was no evidence of any final order being made for a term of five years. The father contends that the primary judge was plainly in error in making this finding. In answer to that complaint, counsel for the ICL submitted that the primary judge records the mother’s submission, rather than a finding, although it would seem to have been recorded with apparent acceptance. More fundamentally, counsel for the ICL submitted that there was, in fact, an order made and any error about the period of it was not material in the circumstances. For reasons which will become apparent, it is not ultimately necessary to determine whether this constitutes an error of fact on the part of the primary judge or whether it was material in her Honour’s determination.
I also note here that a similar complaint (of factual error) is made by the father concerning the primary judge’s references at [75] of the reasons that:
… He [the father] complained it was the mother who refused to hand over the child to him on the weekend of 15 to 16 September 2018 as he did not give the mother one month’s notice…
It is acknowledged by counsel for the ICL, and by necessary inference the mother, that the primary judge was in error in describing the father’s complaint. The father’s complaint was in fact that despite giving the mother one month’s notice, the mother refused to hand over the child. Again, counsel for the ICL contends, whilst acknowledging the error of fact made by the primary judge, that it was not material to the overall determination. Again, for reasons which will become clear, it is not necessary to determine the materiality of this error.
At [72] of the reasons, the primary judge quotes the contents of some 15 emails sent from the father to the mother between 9 July 2016 and 8 August 2017. The original emails are written in Mandarin but they are translated by a NAATI accredited translator. Whilst the father agitated a complaint about the accuracy of the translation, there are 15 of these emails and it is inherently unlikely that the translations could be so inaccurate so as to change the character or characterisation of the messages. The emails in many instances are fairly described as abusive and, at least in some instances, as threatening. The contents of these emails obviously speak for themselves in the sense that their characterisation does not depend upon cross-examination or the testing of the evidence. That is, these documents are, on their face, able to be characterised in the respects referred to.
At [73]–[80], under the heading “[f]ather’s response” the primary judge sets out a description of the father’s case or response to the mother’s case. Having earlier noted, more than once, that the father disputed the allegations advanced by the mother, the primary judge records at [78]:
78.The father complained that the mother did not support his relationship with the child however he failed to address in his affidavit any of the serious allegations of family violence raised against him by the mother.
It bears repeating that there are limitations upon the father in terms of his speaking and writing of English and he is not legally trained or qualified. The father advanced, as is referred to in the reasons, a number of documents including emails which he relied upon to support his case contrary to that of the mother, as earlier described. These are referred to by the primary judge, for example at [79], but without any associated finding as to the accuracy or any conclusion drawn from the content of the emails written by the mother. It cannot be doubted that the father disputed the mother’s allegations generally even if he did not specify or particularise his denials.
Did the primary judge record concluded findings on disputed issues of fact or on untested evidence?
As argument of the appeal developed, several particular paragraphs of the reasons, without being exhaustive as to the paragraphs of the reasons relevant to this topic, came into focus. The relevant paragraphs are as follows:
81.Notwithstanding these are interim proceedings and the parties have not been cross examined I am satisfied that on the balance of probabilities that the above incidents (noting the mother’s contemporaneous complaints to police) were likely to have occurred as she alleged. I intend to take a cautious approach in the interests of protecting the child from being further exposed to conflict. I accept that the mother is fearful for her safety and has a proper basis for fearing the child will not be returned to the mother’s care if the father forms a view that she should not be returned.
…
96.Notwithstanding these are interim proceedings I am satisfied that the father has perpetrated significant and sustained family violence against the mother. The mother’s numerous complaints particularised above indicate the length of time the father has engaged in intimidating and harassing conduct towards the mother in the presence of the child. I am satisfied that both the mother and child have been the victims of the father’s coercive and controlling behaviour. It has now been six years at least since the parties separated. The father continues to seek the parties reconcile to parent the child if not for other reasons.
…
100.I am satisfied that the father is likely to continue to perpetrate family violence towards the mother in a coercive controlling manner at handover in the child’s presence. I am satisfied that the father presents a potential risk to the child. His obsession that he be reunited with the mother and child appears to have continued unabated. In his affidavit filed in August 2019 he sought that the mother and child return to live in Perth. In 2018 he told the family consultant that the child should live with the mother and father “in the same city.” He has been unrelenting in refusing to accept the end of the relationship. I am satisfied the evidence indicates that he is obsessed and
pre-occupied with the mother and the resumption of their relationship.
Counsel for the ICL acknowledged that it would be an error for the primary judge to record a concluded finding of fact on any disputed issue or on evidence that is untested. Counsel argued that, with respect to [81] of the reasons, this was no more than the primary judge expressing a finding about risk.
For myself, I am unable to interpret [81] otherwise than as a concluded finding, expressed on the balance of probabilities, that each and every of the mother’s allegations, “the above incidents”, are made out. In other words, I am unable to interpret [81] of the reasons as merely an assessment of risk as opposed to a concluded finding of fact.
In this respect, I do not consider that the finding in [81] can be reduced as being only a reference to part of the mother’s case, for example, the emails or only corroborative documents tendered. In my view, [81] expresses a conclusion as to the mother’s allegations in their entirety.
I am fortified in this conclusion by reference to the contents of each of [96] and [100] quoted in full above. In my judgment, it is impossible to characterise the findings recorded in these paragraphs as other than concluded findings on disputed issues of fact and on evidence which is untested.
My conclusion in this respect is also fortified when regard is had to the primary judge’s discussion of the evidence of the family consultant set out at [85]–[95] of the reasons. In those paragraphs, in a number of instances, the primary judge refers not only to the family consultant’s opinions or observations, but records, in conclusive terms, her Honour’s unequivocal acceptance of those opinions. This is in circumstances where the father had no opportunity to test the evidence of the family consultant by cross-examination and notwithstanding that it is clear that, following the hearing on 2 September 2019, and prior to the delivery of judgment, the father was agitating for the opportunity to challenge the family reports and the opinions expressed by the family consultant.
In SS & AH [2010] FamCAFC 13, a case referred to and quoted in Salah in the extract already noted above, the majority of the Full Court (Boland & Thackray JJ) observed, at [88]:
… In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
In that case, whilst the majority noted a number of respects in which the judge impermissibly expressed concluded findings, their Honours were ultimately persuaded that the findings made by the judge on some controversial factual matters “should not be seen as providing the ratio for his decision” (at [105]).
In contrast to that, here the inescapable conclusion is that the primary judge’s decision rested upon the concluded findings of fact referred to. So much is clear from the feature that the primary judge made an order for no time or communication despite that order not being sought by either parent or, importantly, by the ICL charged with the statutory obligations set out in the Act.
In this respect, review of the transcript does not indicate that, at any point, the primary judge foreshadowed to the parties, and in particular to the father, that her Honour had in contemplation making an order, on an interim basis, for there to be no time or communication. It might be said that the portent of the recommendations of the then recently arrived family report, the second of the two family reports, was that an order for no time or communication might be in contemplation. In my respectful opinion, the primary judge was in error in failing to clearly articulate to the parties and to the father in particular, and afford him the opportunity to be heard on, the prospect of there being an interim order for no time or communication. Moreover, review of the transcript does not reveal the primary judge having foreshadowed to the father, or calling for his submissions upon, questions about his attendance upon a clinical psychologist for the purpose of further reports. Importantly, in the manner in which those orders are framed, the determinations made by the primary judge about family violence were to be taken as a given by the clinical psychologist contemplated. That is, the terms of the orders speak of “further” family violence being perpetrated by the father and the orders make provision for the expert to be provided with the primary judge’s reasons for judgment and the family reports, all of which express firm and unequivocal conclusions about the disputed issues referred to concerning family violence.
Undoubtedly, there was a body of evidence in this case which needed to be taken into account in terms of an assessment of risk for the purpose of s 60CG of the Act. However, reference to the paragraphs of the reasons of the primary judge specifically referred to, taken with the terms of the orders the primary judge ultimately made, leave no room for doubt that the primary judge did not confine herself to an assessment of risk on an interim basis. Her Honour expressed unqualified and concluded findings, wholly accepting of the mother’s case in its entirety on disputed issues of fact. Moreover, the primary judge expressed unqualified acceptance of the opinions of the family consultant despite the father having no opportunity to test any of that evidence.
Disposition of the appeal
As noted by counsel for the ICL some, if not all, of the self-represented father’s grounds of appeal are not proper grounds of appeal and most are, with respect to the father, poorly expressed.
However, it is well settled that on an appeal by way of rehearing this Court is bound to undertake a considered review of the primary decision and to correct errors identified in that process (see, for example, Warren v Coombes (1979) 142 CLR 531).
For the reasons stated, I am satisfied that error on the part of the primary judge is established in the respects identified. Given the dispositive consequence of the error identified, I do not consider it necessary to address all of the grounds of appeal contained in the father’s Amended Notice of Appeal nor to address his application to adduce further evidence on appeal which can be dismissed in the circumstances (see Boensch v Pascoe [2019] HCA 49 per Keifel CJ, Gageler & Keane JJ).
In light of the unqualified way in which the primary judge expressed concluded findings on disputed issues and on untested evidence, it would not be feasible to remit the proceedings to the primary judge for rehearing of an interim application. I do not consider that, given the unequivocal way in which the concluded findings are expressed by the primary judge, that it could be said that the primary judge would be open to persuasion to change any of her expressed conclusions, and the father could no doubt properly raise objection to the primary judge reconsidering the issues at a further interim hearing, or at final trial.
It would not be appropriate for this Court to re-exercise the discretion, given the findings, and it would be undesirable for this Court to do so with respect to an interim determination, given the obvious need for each party to have the opportunity to provide updated evidence and any necessary evidence, for example, in the case of the father, to address the content of the second family report.
In my judgment, it is inevitable that the proceedings need to be remitted for a rehearing on an interim basis by a judge other than the primary judge.
As to costs, as the father was self-represented and did not incur legal costs, I do not propose to make any order as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 January 2020.
Associate:
Date: 31 January 2020
3
5
1