Lim & Zong
[2022] FedCFamC1A 146
•20 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Lim & Zong [2022] FedCFamC1A 146
Appeal from: Zong & Lim (No 6) [2022] FedCFamC2F 196 Appeal number(s): NAA 35 of 2022 File number(s): BRC 8160 of 2014 Judgment of: MCCLELLAND DCJ Date of judgment: 20 September 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders allowing no time and no communication with the appellant – Where the appellant has engaged in a pattern of coercive and controlling conduct – Family violence and animal cruelty perpetrated by the appellant – Protracted litigation history – 22 grounds of appeal asserting factual finding errors – No merit in any grounds advanced – No error established – Appeal dismissed – Appellant to pay costs of respondent and Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 102NA, 117
Family LawRules 2004 (Cth) r 19.18
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
de Winter v de Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
HJ Heinze Company Australia Ltd v Turner [1998] 4 VR 872
Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20
Lim & Zong (2021) FLC 94-048; [2021] FamCAFC 165
Lim & Zong (No 2) [2019] FCCA 3249
M v M (1988) 166 CLR 69; [1988] HCA 68
Neil v Nott (1994) 121 ALR 148; [1994] HCA 23
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Peterson & Cochrane [2008] FamCA 597
Prantage & Prantage (Costs) [2014] FamCA 850
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of Victoria v Bacon [1998] 4 VR 269
Stoian v Fiening (Costs) [2014] FamCA 944
Whisprun Pty Limited (formerly Northeast Exports Pty Limited v Dixon (2003) 200 ALR 447; [2003] HCA 48
Zong & Lim [2019] FCCA 2662
Zong & Lim (No 6) [2020] FCCA 3671
Zong & Lim (No 3) [2021] FCCA 238
Zong & Lim (No 4) [2021] FCCA 319
Zong & Lim (No 5) [2021] FCCA 1965
Zong & Lim [2022] FedCFamC2F 196
Number of paragraphs: 137 Date of hearing: 15 August 2022 Place: Sydney (via videolink) The Applicant: Litigant in person Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Lander Solicitors QLD Counsel for the Independent Children's Lawyer: Ms Pendergast Solicitor for the Independent Children's Lawyer: Julie Harrington, Solicitor ORDERS
NAA 35 of 2022
BRC 8160 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LIM
Appellant
AND: MS ZONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
20 september 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Within 14 days, the appellant father is to pay the costs of the respondent mother in the sum of $4,671.90.
3.Within 14 days, the appellant father is to pay the costs of the Independent Children’s Lawyer in the sum of $4,671.90.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lim & Zong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
Introduction
This is an appeal from final parenting orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia (“the primary judge”) on 25 February 2022. By way of summary, those orders provided for the respondent mother to have sole parental responsibility for the child, who would live with the mother in City P and spend no time with the appellant father who resides in City K.
For the reasons which follow, the appeal is wholly without merit and is dismissed with costs.
Background
The parties married in 2006 in Country Q and, in 2007, relocated to City K where the child was born in 2012. The child is now 10 years old. The parties separated in 2012 while on a trip to Country Q. Upon returning to Australia in January 2013, the mother relocated to City P with the child while the father remained in City K. A divorce order was made in November 2014 and subsequently came into effect in December 2014 (at [25]–[33]).
The matter has progressed very slowly through the Court due to a number of factors, including the impacts of the COVID-19 pandemic and the father’s case management decisions (at [35]). The matter was initially finalised by consent orders on 27 October 2014 for equal shared parental responsibility and for the child to live with the mother, with arrangements for the child to spend time with the father in both cities (at [36]–[37]). However, the parties’ relationship remained strained and, on 11 July 2017, the child was held over in City K by the father, which necessitated the mother seeking a recovery order for the child to be returned (at [38]). A further recovery order was granted in September 2017, after which time orders were made for the child to spend time with the father in City P. The matter remained before the Court because, in his response to the mother’s application for recovery order, the father sought new parenting orders (at [41]).
On 20 September 2019, following an interim hearing, interim orders were made ceasing the child’s time with the father based on an unacceptable risk. The father successfully appealed those orders in the Full Court, constituted by a single judge, where it was determined that in the context of an interim hearing and absent the testing of the parties’ evidence through the process of cross-examination, it was inappropriate for the primary judge to make findings of fact that the father had engaged in a pattern of family violence primarily by various acts of coercive and controlling behaviour.[1] The mother, in this appeal, contends that the emails attached to the evidence she has submitted for the purpose of those interim proceedings provided ample basis for the primary judge arriving at the findings he made which, it is contended, were justified on the evidence. In the current appeal, however, it is unnecessary for me to further consider that submission.
[1] Lim & Zong (2020) FLC 93-939.
For reasons, which I set out below, I am satisfied that the primary judge’s reliance on the evidence before him at first instance is not only justified but, in my view, such evidence compelled the findings that his Honour made.
In terms of the manner in which this case was presented, it is significant that during the case management process an order was made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) for both parties to obtain representation due to allegations of family violence. The father has been represented by two separate firms of solicitors pursuant to those orders. He has since, however, discharged the services of both firms and was self-represented at the final hearing. In those circumstances, the primary judge correctly, in my view, determined that the provisions of s 102NA precluded the father cross-examining the mother.
In those circumstances and noting for instance [80] of the reasons where the primary judge found the mother’s evidence, in relation to a disputed incident, to be “the truthful version of events” whilst the father simply denied the incident, it can be inferred that the primary judge generally accepted the evidence of the mother wherever it was inconsistent with that of the father. For reasons which I set out below, an appellate court is reluctant to interfere with a primary judge’s findings in respect to the credit of the respective parties. This is particularly so in circumstances where the father’s evidence rebutting the mother’s evidence of significant acts of family violence is implausible.
On 29 October 2020, the primary judge made interim orders ceasing the child’s time with the father based on a determination of unacceptable risk.
It is noted that this matter has also been running in the Queensland Magistrate’s Court, with both parties filing multiple applications in that court (at [59] and [60]). Significantly, the primary judge found that the extent of litigation engaged in by the father itself, including in the Queensland Magistrate’s Court, was not child-focused and constituted part of his “campaign of family violence using coercion and threats over a long period of time.”
The history of litigation in this matter is summarised at [34] to [62] of the reasons for judgment of the primary judge dated 25 February 2022 (“the reasons”).
The protracted litigation history is further set out in various judgments which have been published in respect to the parties’ dispute, including:
·Zong & Lim [2019] FCCA 2662 (20 September 2019)
·Lim & Zong (No 2) [2019] FCCA 3249 (12 November 2019)
·Lim & Zong (2020) FLC 93-939 (31 January 2020)
·Zong & Lim (No 6) [2020] FCCA 3671 (29 October 2020)
·Zong & Lim (No 3) [2021] FCCA 238 (19 January 2021)
·Zong & Lim (No 4) [2021] FCCA 319 (20 January 2021)
·Zong & Lim (No 5) [2021] FCCA 1965 (2 August 2021)
·Lim & Zong (2021) FLC 94-048 (27 August 2021)
·Zong & Lim [2022] FedCFamC2F 196 (25 February 2022)
Of concern is that, during the course of the trial, the father stated his intention to appeal irrespective of the outcome of the proceedings.[2] Indeed, the father has acted on that statement.
[2] Transcript 29 September 2021, p.190 lines 31–44.
The primary judge accepted the mother’s evidence that she had been subject to a number of incidents of family violence perpetrated by the father (at [141]). These will be set out in greater detail but include an assault of grabbing and dragging the mother into the house and forcefully pushing her onto the lounge, threats to break the mother’s legs, sending many abusive emails, mistreating and mutilating pets and engaging in litigation as a means of further controlling the mother (at [66]).
It was also found that the father has used the child and changeovers to continue to pursue a relationship with the mother (at [101]–[105] and [142]).
The primary judge accepted the evidence of the mother’s treating psychologist that, after assessment, the mother had met the criteria in the Diagnostic and Statistical Manual of Mental Health Disorders Fifth Edition (“DSM”) for a mental illness and is receiving cognitive behavioural therapy (at [117]). The Family Report writer echoed the mother’s treating therapist in stating that if the Court found the mother’s allegations of family violence to be of substance, it was such that it could reasonably be expected to cause that mental illness,[3] which scientific literature confirms can be cumulative and manifest itself most profoundly after a period of time. The primary judge accepted that evidence and, in doing so, had regard to his findings in respect to the father perpetrating such acts of family violence that he summarised at [139], including:
(a)The father stalked the mother and unlawfully entered her premises (at [68]);
(b)The father sent messages to the mother threatening suicide and death (at [69]);
(c)The father applied coercive control over the mother ([71]);
(d)The father attempted to introduce embarrassing and irrelevant evidence from a witness that was disparaging of the mother and imputed that she was a liar (at [75]);
(e)The mother was forced to spend the night with the child in the father’s share house (at [78]); and
(f)The father has inflicted injury on pets (at [88]).
[3] Transcript 30 September 2021, p.234 line 45 to p.235 line 2.
For reasons which I subsequently explain, the findings made by the primary judge in that respect were reasonably open to him and, having made those findings and others to which I subsequently refer, no error has been established in the manner in which the primary judge exercised his discretion.
The Appeal
There is an obligation on an appellant to properly particularise the asserted errors which they contend were made by the primary judge.[4] I respectfully agree with the submissions of both the mother and the Independent Children’s Lawyer (“ICL”) that the grounds of appeal in this matter are virtually unintelligible. Nevertheless, consistent with the principles adumbrated by the High Court in Neil v Nott (1994) 121 ALR 148, a certain amount of leniency is afforded by this Court to self-represented litigants.
[4] See for example State of Victoria v Bacon (1998) 4 VR 269 (Phillips JA); HJ Heinze Company Australia Ltd v Turner (1998) 4 VR 872 and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540.
As best I can construe the father’s grounds of appeal, they raise 22 factual finding errors on the part of the primary judge.
Relevant legal principles
In the context of this appeal, the following relevant legal principles are relevant.
Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43].
An appeal court should not interfere with a finding of fact if there was evidence on which that finding could be made; that is, if it was reasonably open on the evidence: Edwards v Noble (1971) 125 CLR 296.
An appellate court will not be concerned with a mistake of fact made by a trial judge that has not affected the final result of the proceedings: de Winter v de Winter (1979) FLC 90-605 (“de Winter”).
In order to consider the father’s contentions in respect to the purported errors made by the primary judge and the potential significance of those errors, it is necessary to summarise the basis upon which the primary judge concluded that the child should spend no time with the father.
The reasons for judgment
At [80] of the reasons, the primary judge sets out why he accepts the evidence of the mother over that of the father. This was in circumstances where the mother was not cross-examined by the father as a result of the fact that the father had dismissed his two previous legal representatives and was precluded from cross-examining the mother pursuant to the provisions of s 102NA of the Act. Therefore, the mother’s evidence was unchallenged. As earlier noted, the primary judge generally found the mother’s evidence to be plausible and aspects of the father’s evidence to be implausible. This included in respect to significant acts of violence which the primary judge found the father had committed.
That finding, which was reasonably open to the primary judge, led to the finding that the father had engaged in a long-term pattern of pervasive, coercive and controlling conduct directed towards the mother. In that respect, at [141] of the reasons the primary judge stated:
I do conclude that he has engaged in a campaign of family violence using coercion and threats over a long period of time and that the only time this has ceased has been when time for the child with him has ceased – because he has not had access to the mother. The threats have included threats of suicide and threats to the mother and cruelty to family pets.
Not only was that finding reasonably open to the primary judge, the evidence, in my view, compelled that finding. This campaign of coercive and controlling conduct carried out by the father included sending offensive emails to the mother, extending back to 2014. Those emails are set out in Annexure “YYZ-06” to the mother’s affidavit filed 28 September 2022 and extend over 30 pages, including a series of emails spanning five years in which the father seeks to coerce the mother into taking a particular course of action. Those emails, which the father eventually admitted to sending to the mother, include threats made by the father to self-harm and include highly offensive language. Significantly, the father conceded that those emails attached to the mother’s affidavit were a mere sample of the nature of emails which he had been sending to the mother over a five-year period.[5]
[5] Transcript 29 September 2021, p.128 lines 21–40.
No error has been demonstrated on the part of the primary judge in so finding. Examples of the communication included:
·On 21 November 2014, the father sent an email to the mother in which he stated:
If you want to leave me, I can only use my death to answer you. It is impossible for us to take divorce as an end once we married. You should be absolutely clearly aware of that. It is no use to say anything from now on; our relationship has been destined; only death can separate us.
·On the same day, the father sent a further email in which he stated:
My life only belongs to our family after marriage. The only way to end our marriage is to end my life. You are clearer than me that this means ending my life. This is why we got married. Many things change in the world, but this will never change.
·An email sent by the father on 14 January 2017 calling the mother a “scumbag”;
·On the same day, seven minutes after the first email, the father sent a further email in which he rhetorically asks the mother whether she could live without harming him;
·On 8 August 2017, the father sent an email to the mother stating that she was disgusting and that she should “disappear from our world”;
·On 3 June 2017, an email sent by the father to the mother calling the mother a “son of a bitch” and stating that her “heart is completely rotten”;
·On 26 May 2017, the father sent an email to the mother calling her despicable and shameless and that he wished her “out of my pure world forever”;
·On 13 May 2017, an email sent by the father to the mother in which he accuses the mother of being “corrupt and shameless”, questioning “why have souls like [the mother] in the world”.
The primary judge accepted the mother’s evidence that abusive and derogatory emails sent by the father to the mother continued into 2019. That finding is justified on the basis of the emails, which are dated, attached to the mother’s trial affidavit including an email set out at page 341 of the appeal book in which the father stated in his email to the mother on 30 April 2019 which included;
All the setbacks in [the child’s] life are originated from the miserable life you have imposed on her. You deprive her of her family affection, causing harm to her both physically and mentally. Why do you have to make her father-daughter relationship unsustainable and destroy her fundamental feelings.
On 5 January 2019, the father sent the mother an email which included the statement: “How good you are at ruining [the child] and me. How clever you are. How good you are at manipulating people and telling lies”.
On 5 February 2019, the father sent the mother an email which included the statement “do you still have even a tiny bit of motherhood! You are totally rotten inside.”
In circumstances where it was not contested in the proceedings that the mother was the primary carer of the child and that the child should continue to live with the mother, the primary judge concluded, justifiably, in my view, that orders requiring the mother to facilitate the child spending time with and or communicating with the father would have such an adverse psychological impact upon the mother that it would, in turn, vicariously impact upon the child. In that regard his Honour, with respect, correctly cited and applied relevant authority as summarised by the Full Court in Keane & Keane (2021) 62 Fam LR 190 (“Keane”) at [75]–[82].
In addition to the father’s pattern of sending offensive and coercive and controlling emails to the mother, the primary judge made a finding that the father had engaged in conduct which constituted family violence (at [141]). The relevant findings of the primary judge summarised at [139] of the reasons, by reference to his assessment of the parties’ evidence as set out in earlier paragraphs, were as follows:
(a)The father stalked the mother and unlawfully entered her premises and such amounts to intimidation and family violence (paragraph 68 above);
(b)The father has sent text messages to the mother threatening suicide and death, causing her anxiety and fear (paragraph 69 above);
(c)The father has applied coercive control over the mother (paragraph 71 above);
(d)The father attempted to introduce embarrassing and irrelevant evidence of a witness Mr N (paragraph 75 above);
(e)The father made a self-serving statement thanking the mother’s lawyer to display a cooperative approach to parenting although I found no evidence to support such (paragraph 72 above);
(f)The mother gave truthful evidence about being forced to stay overnight with the child in the father’s share house (paragraph 78 above);
(g)The father did not physically control the child at a train station while haranguing the mother about the relationship (paragraph 86 above), and
(h)The father has inflicted injury on pets (paragraph 88 above).
While there was no ground of appeal advanced relating to the adequacy of the primary judge’s reasons, his Honour’s cross references to his findings in each of the relevant paragraphs clearly explain his process of reasoning which, as I have indicated, justifies the finding that he made that the father has engaged in an unrelenting pattern of coercive and controlling conduct directed towards the mother.
The primary judge did not accept the evidence of the father that he acknowledged the flaws in his conduct and that he had committed to change the manner in which he communicated with the mother. In that respect, the primary judge noted at [140] of the reasons that “after years before this court and the Queensland Magistrates Court with associated domestic violence issues, it was only at the trial that [the father] appeared to say he was being cooperative with the need to determine the child’s best interest.” Even at that stage, as noted previously, the father indicated that he intended to appeal the decision by the primary judge, irrespective of the outcome of the proceedings.
At [141] of the reasons, the primary judge noted that the only time the father’s “campaign of family violence using coercion and threats over a long period of time” halted was when orders were put in place ceasing the child’s time with the father; by virtue of not having access to the mother during those periods, the father was not able to engage in such family violence. Again, that finding was clearly open to the primary judge.
At [142] of the reasons, the primary judge found that the father had “used the child to pursue the relationship [with the mother] and there was no evidence that anything would change if out of view of the court processes”. Again, that finding was reasonably open to the primary judge.
The father accepted that, on 21 December 2019, he was transported by the police to a mental health facility in response to his conduct that occurred at a City P shopping centre, which the parties attended in order to facilitate the child spending time with the father. At paragraph 63 of the mother’s primary affidavit, the mother attests that the father suddenly stood up from his seat and took the child away from her, resulting in the mother taking hold of the father’s shirt to restrain him. The father agreed that, after leaving the mother and the child in the shopping centre, he waited for an over an hour in the car park for the mother to return to her car.[6] The father further acknowledged that when he saw the mother approaching with two police officers, he proceeded to bang his head repeatedly on the mother’s car. The primary judge accepted the mother’s evidence that the father yelled “you just wait for my dead body one day. If it is not today, it will be another day” (at [71]).
[6] Transcript 29 September 2021, p.132 line 30 to p.133 line 1.
Significantly, the father acknowledged that “half of the reason” for him engage in that conduct was an attempt to “coerce or persuade” the mother.[7]
[7] Transcript 29 September 2021, p.134 lines 22–25.
The father further admitted that on 27 August 2016 during a changeover from the child spending time with the mother, the father pressed his request for the mother to spend the night at his house, stating “yes. I had been asking this, not just this time”.[8] The father pressed those requests despite the mother indicating very strongly that she did not want that to occur.
[8] Transcript 29 September 2021, p.136 lines 25–38.
The father agreed that the changeover that occurred in April 2019 extended over a lengthy period of one and a half hours. The father also agreed that, during the course of that changeover, he stated to the mother “don’t push me to do things I don’t want to do.”[9]
[9] Transcript 29 September 2021, p.150 line 38 to p.154 line 35.
The litigation history of the matter up until 2021 in this Court and, previously, the Federal Circuit Court of Australia, is summarised by the primary judge from [34] to [62] of the reasons.
In the context of that history, the primary judge found that the father had used ongoing litigation against the mother as an additional means of exerting coercive control. His Honour noted that the proceedings which are the subject of this appeal were the fifth attempt by the mother to have the matter listed for hearing that had been obstructed by the father, including by dismissing two sets of lawyers who had been appointed to act on his behalf by Legal Aid. The primary judge also referred to the conduct of the father in pursuing apprehended violence orders against the mother in the Queensland Magistrates Court. This included the father making an application to the Court in mid 2017 but failing to attend when the matter was listed for hearing.[10] Despite not attending the hearing on that earlier occasion, in August 2017 the father filed a second application for a domestic violence order. That application was dismissed at a hearing which occurred in early 2018. In late 2017, the father filed an application seeking orders to dismiss a domestic violence order that had been made protecting the mother, which he subsequently offered to withdraw on the basis that the mother discharged that order.
[10] Transcript 29 September 2021, p.166 line 31 to p.167 line 1.
In the context of that litigation history, the primary judge accepted the evidence of Mr O, the mother’s treating psychologist, that the “long years of litigation” in addition to the father’s pattern of engaging in coercive and controlling conduct have taken a toll on the mother, the cumulative effect of which has resulted in the mother suffering from a mental illness (at [144]). It was reasonably open to the primary judge to accept that opinion from the mother’s treating psychologist which, in my view, was soundly based on the facts that were established in the proceedings.
That stress and anxiety, the primary judge found, included the mother’s concerns for the emotional well-being of the child if orders were to be made for the child to spend time with the father. That risk of emotional harm arose from the manner in which the father had conducted himself at changeovers, including in respect to the incident in December 2014 referred to by the primary judge where the father banged his head on the mother’s car. The primary judge justifiably, in my view, concluded at [131] that orders being made for the child to spend time with the father would necessitate the mother being in contact with the father and, in turn, result in a continuation of the father’s harassment of the mother, which has also occurred in the presence of the child. In that respect, the primary judge noted the father’s attempt to call evidence from a Mr N, which amounted to an unnecessary attack on the mother’s reputation and was irrelevant to the proceedings. It was reasonably open, in those circumstances, for the primary judge to conclude that the father’s conduct, including his conduct during the course of the proceedings, was such that the father would not change “his derogatory views of the mother” which he had communicated in the numerous insulting emails to which the primary judge referred (at [77]).
The primary judge also identified risks for the child in spending time with the father in circumstances where he prioritised his own interests above the child, referring to an incident that occurred on 10 September 2016 in that respect (at [78]). After the child, then aged four years and two months, had spent six hours in a shopping centre with the father, the father prevented the mother from taking the child home by entering the mother’s car and refusing to leave for a period of two hours. The situation, created by the father, was only resolved by the mother agreeing to accompany the child back to the father’s residence and subsequently acquiescing to spend the night, in circumstances where she was concerned about the child’s welfare and was not permitted to leave by the father.
The father’s prioritisation of his pursuit of the mother above the wellbeing of the child is also reflected in the primary judge’s finding at [86] of the reasons where, in approaching the mother to express his grievances, the father let go of the child’s hand while she was standing on a railway platform “when she [was] reasonably near to the railway lines on the unfenced platform”. The primary judge justifiably, in my view, concluded that the father’s conduct in that respect displayed an inability to focus on the child’s potential safety.
An additional matter which the primary judge found justified the mother’s concern about the child spending time with the father was the father’s history of engaging in animal cruelty. The primary judge did not make specific findings in respect to the mother’s allegations that the father had killed two kittens by holding them under water, nor that he had engaged in cruelty to a pet dog. The primary judge did, however, express serious concern regarding injuries inflicted on the parties’ pet cats by the father, with such injuries being evidenced by photographs annexed to the mother’s affidavit. The primary judge explained his reasons for rejecting the father’s evidence from [94] through to [98] of the reasons, which were as follows:
There is a photograph of a cat tied to a metal frame with a thin flexible type of wire. The wire can be clearly seen. The father said the family was moving and he did not want the cat to escape.
I take that as an admission that he tied the cat to the frame with the wire.
Wrapping wire around the cat and tying it to the metal frame is a deliberate and cruel act and there is no other way of describing it. Any struggle would have caused the animal pain. The cat could have been placed in a cat carry box or even in a closed cardboard box with suitable air holes where it could remain calm, and the father would be assured it could not run away. Why the cat would run away because the family was moving was never explained by the father.
As to the injured cat slashed down one side by a drill, the open wound can be seen in a photograph. The father said he had a door off its hinges and on its side, up against a wall. He was sitting on the floor doing drilling work on the door. He said when he started the drill, the cat, in fright, jumped across the spinning drill bit and was injured.
I could not understand how the cat would be jumping in that scenario so that it would get caught by the drill bit if the drill was being used on the door. It would be logical for an animal scared of a power tool to run the other way or keep as far away as possible.
In rejecting the evidence of the father, the primary judge concluded at [100] “that a person would resort to the type of animal cruelty described, to family pets, does not indicate that the person is focused on providing a wholesome, moral and safe environment.” It was reasonably open the primary judge to make that finding on the basis of the evidence before him, noting that such finding was an additional factor contributing to the mother’s real anxiety about the prospect of the child spending time with the father.
Having found that the mother’s anxiety concerning the child spending time with the father was real and was objectively justified, the primary judge found that the mother’s mental health would be so profoundly impacted by orders providing for the child to spend time and/or communicate with the father, that her parenting capacity would be adversely impacted. This was in circumstances where the primary judge accepted the evidence of the mother’s treating psychologist that she suffered from a mental illness as a result of the cumulative effect of the unrelenting pattern of coercive and controlling conduct engaged in by the father.
In that respect, the primary judge noted that the opinion of the Family Report writer, Ms A, was consistent with the opinion expressed by the mother’s treating psychologist that the cumulative impact of a person being subjected to an unrelenting pattern of coercive control could result in that person suffering a mental illness.
The primary judge also accepted the evidence that, as result of the ongoing stress and anxiety experienced by the mother, she suffered both psychological and physiological problems which were likely to be exacerbated in the event of orders being made for the child to spend time and/or communicate with the father. This in turn, the primary judge concluded, would vicariously impact the child adversely. Those findings were central to the conclusion of the primary judge that the orders made should provide that the child spend no time and have no communication with the father. The reasoning of the primary judge was clearly explained and was soundly based on the evidence that was presented to him.
It is in that context that the father’s grounds of appeal must be considered.
The grounds of appeal
I deal with the father’s 22 grounds of appeal advanced in the Amended Notice of Appeal filed 20 May 2022 as follows.
Ground 1:
In [the primary judge’s] Reasons for Judgement [19] and [20], cited cases cannot assess unacceptable risk existed in this case.
The father contends that his Honour erroneously cites a number of cases that are factually dissimilar to the current matter. Those cases were M v M (1988) 166 CLR 69 and Peterson & Cochrane [2008] FamCA 597, which are uncontroversial statements of law in providing guidance concerning the assessment of risk for the purpose of s 60CC(2A) of the Act. The primary judge did not refer to those authorities in the context of having a similar factual circumstances to the present matter.
Ground 1 is without merit.
Grounds 2 & 3:
2. In [the primary judge’s] Reasons for Judgement [137] and followings, Keane & Keane FamCAFC 1 [80], [81], [84] and [85] were not considerate correctly.
3. Error in [the primary judge’s] Reasons for Judgement “DELIBERATION”, from page 16.
The father’s argument in respect to Ground 3 cites an earlier judgment in this matter, Zong & Lim (No 5) [2021] FCCA 1965, in contending that the mother does not hold a genuine belief that the father poses a risk to the child. The father referred to an extract from a Family Report in which the mother described dealing with the father as “not pleasant” however “did not see [it] as abusive”. The primary judge had the benefit of not only Family Reports which have been prepared in this matter but, additionally, the benefit of the totality of evidence, including that presented by the mother at the hearing. For reasons which I have set out, I am satisfied that it was reasonably open for the primary judge to conclude that the mother was and remains genuinely concerned regarding the welfare of the child in spending time with the father and, further, that the prospect of the child spending time with the father is such that it would adversely impact upon the mother’s emotional and psychological wellbeing.
The father’s Summary of Argument in respect to Ground 2 includes extracts from the decision of the Full Court in Keane, but does not otherwise connect that authority to a sustainable ground of appeal. During the course of the appeal hearing, by reference to the decision of the Full Court in Blinko & Blinko [2015] FamCAFC 146, the father contended that the primary judge did not adequately consider steps that could be taken to mitigate the unacceptable risk the father poses, such that the child could spend some time or have some communication with the father, or for the father to send cards and gifts to the child.
The primary judge at [147] expressly stated that he considered the opinion of the Family Report writer that the child spending no time and having no communication with the father had the potential to impact upon the child’s perception of identity in the future. Having noted that potential, however, the primary judge carefully explained why he was of the view that, despite that potential consequence, it was in the best interests of the child to have no time and no communication with the father (at [148]–[151]). No error has been established in respect to the manner in which his Honour exercised his discretion in so determining.
The primary judge further explained that orders facilitating the father sending cards and gifts to the child would require the mother to be the conduit for such communication. Indeed, such orders would require the mother to identify her place of residence or, at least, facilitate a means by which the father could locate the mother. In the context where the father had been convicted of trespass for breaking into the mother’s residence in circumstances where her place of residence had remained confidential and not made known to the father, it was reasonably open to the primary judge to conclude that the mother would experience heightened anxiety by an order facilitating the father maintaining contact with the child and, necessarily, the mother (at [148]). Additionally, in that respect, the primary judge noted that the only respite the mother has had from the ongoing coercive and controlling conduct engaged in by the father has been during those times where there has been no communication between the parties in respect to parenting matters.
Accordingly, these grounds are without merit.
Ground 4:
Family Law Act 1975 s 60CC(3)(k) does not considered in [the primary judge’s] Reasons for Judgement [59], [60], [61] and [140].
It is, with respect, difficult to comprehend the substance of this ground of appeal. There is no argument advanced on this ground in the father’s Summary of Argument. Section 60CC(3)(k) of the Act requires a trial judge, in determining what orders are in the best interests of the child, to have regard to allegations of family violence and the existence of any family violence orders.
The consideration of the father’s perpetration of a pattern of unrelenting and ongoing coercive and controlling conduct, which the primary judge found to constitute family violence, was central to the proceedings and his Honour’s judgment.
This ground of appeal is also without merit.
Ground 5:
Error finding in [the primary judge’s] Reasons for Judgment [61].
In summarising the litigation history, his Honour observed at [61] that “no orders were made which varied protective orders protecting the mother”. The father contends that this is an error as he successfully had a domestic violence order amended to remove the child’s name.
It is quite clear that at [61] of the reasons, the primary judge was only referring to orders protecting the mother (not any additional named persons). Even if such error had been established, it would not have been an error that impacted the outcome of the proceedings as contemplated in de Winter.
Accordingly, this ground of appeal is without merit.
Ground 6:
[The primary judge’s] Reasons of Judgement [141] is error finding. The 16-02-2021 family report [40] is against this finding.
As earlier noted, the primary judge at [141] concluded that the father,
has engaged in a campaign of family violence using coercion and threats…the only time this has ceased has been when time for the child with him has ceased – because he has not had access to the mother.
It is the case that paragraph 40 of the Family Report records the mother’s acknowledgement that there have been no new incidents of family violence or threats since the last report. The father contends that this refutes the finding of the primary judge set out at [141] of the reasons.
It is to be noted that the interviews for the Family Report occurred on 14 December 2020. This was after orders were made on 29 October 2020 suspending interim parenting orders that allowed for time and communication with the father. As earlier noted, the primary judge found that the mother’s relief from the father’s unrelenting campaign of controlling and coercive conduct only occurred with the suspension of orders requiring the mother to facilitate the child spending time and communicating with the father.
Accordingly, this ground of appeal is without merit.
Ground 7:
[The primary judge’s] Reasons of Judgment [72] and [139(e)] are error findings. I do not need made a statement thanking the mother’s lawyer to display a cooperative approach to parenting.
This ground relates to the father’s cross-examination regarding the incident on 21 December 2014 where the father banged his head against the mother’s car. During his cross-examination, the father commented that he wanted to thank the mother’s lawyer.[11] Given the father’s abusive emails and use of derogatory names for the mother, his Honour found that this was a “self-serving statement…calculated to engender the view that [the father] was changing his position and being cooperative with the mother.” As earlier noted the primary judge explained, in considerable detail, his reasons for concluding that the father had not, in fact, changed his views of the mother and was prepared, up until and during the hearing, to introduce a witness who made disparaging comments about the mother.
[11] Transcript 29 September 2021, p.135 line 40.
It appears that the father now contends that this extending of thanks was similar to a comment he made in a hearing on 3 July 2020 where the parties agreed that the child should spend time with the father from 4.00 pm that same afternoon. It is apparent from the transcript of that day and the father’s Summary of Argument that the father’s expression of appreciation was directed at the mother’s lawyers and his Honour who “[understood that] handover should [happen] after the court hearing”.
The finding his Honour made about the inauthenticity of the father’s gratitude during the substantive hearing was entirely open and, in any event, even if error had been established, it was not such that it affected the outcome of the proceedings.
Accordingly, this ground is without merit.
Ground 8:
[The primary judge’s] Reasons of Judgement [75] and [139(d)] are error findings. It is should not be a reason to prohibit my parenting responsibility.
The father attempted to bring in Mr N as a witness to discredit the mother and claim that she had withheld the child. His Honour disallowed that material and noted at [75] that “such evidence was embarrassing and irrelevant, and was a further attack on the mother’s reputation organised by the father”. Mr N’s affidavit contains statements to the effect that the mother “felt she had a perfect right to do this and [the father] was the vilest criminal for the desperate efforts he made to have contact with the child” and “at no time did she ever refer to the daughter as “our daughter”…Prior to this encounter with her the only virgin birth I was aware of was that of Jesus Christ.”
Having regard to the content of that affidavit and the father’s reliance on that evidence, the finding of his Honour as set out at [75] of the reasons that the father was incapable of changing his derogatory view of the mother was entirely open on the evidence.
The father also asserts inconsistences in the mother’s evidence regarding an incident on 23 October 2020, where the mother contends the father attended the child’s school during school hours to spend time with her. School staff notified the mother and asked the father to leave, a direction that he did not immediately comply with. The mother contends that the school called her again in the afternoon, noting that the father had called to advise that he would collect the child from school, resulting in a safety plan being made for the mother to collect the child elsewhere. This incident is not addressed in his Honour’s reasons, but appears at paragraphs 10 to 12 of the mother’s affidavit.
The mother contends there is no connection between Mr N’s evidence, sworn in 2015, and the incident at the school in 2020, but addressed what the father contended was an apparent connection in his oral submissions.
The father’s oral submissions were made with the assistance of an interpreter. Despite that assistance, it was extremely difficult to discern a logical coherence to the father’s argument.
In delivering reasons for judgment, it is not incumbent upon a trial judge to “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Limited (formerly Northeast Exports Pty Limited v Dixon (2003) 200 ALR 447 at [62]). There was no error on the part of the primary judge in refraining from commenting upon the evidence relating to the 23 October 2020 incident. Such evidence, if it had been referred to, would have, in my view, supported rather than detracted from the primary judge’s conclusion that the father had not in fact changed his ways and that there was no realistic prospect of the parties communicating in an appropriately child focused manner.
Ground 9:
[The primary judge’s] Reasons of Judgement [37] is error finding.
At [37] of the reasons, the primary judge states that “arrangements were made for the child to spend time with [the father] in both cities” (as the child lived in City P and the father resided in City K). In his Summary of Argument, the father contends no arrangements were made for the child “to spend time with the father in [City K] between 2013 and June 2017”. It is clear that the primary judge broadly summarised the parenting arrangements between the parties. The primary judge did not, for instance, refer to the fact that in July 2017, the father took the child from City P to City K without the mother’s consent, sending an email to her advising that she should come to City K to collect the child. The father’s response to a question from counsel for the mother in respect to that issue was “I can’t remember. Maybe”.[12] The father nonetheless acknowledged that his conduct in unilaterally taking the child from City P to City K resulted in the mother seeking a recovery order.
[12] Transcript 29 September 2021, p.145 line 16.
Additionally, the father acknowledged that it was necessary for the mother to seek a second recovery order in circumstances where he had withheld the child in his company in City K. This, the father contended, was in circumstances where he considered that it was appropriate for the child to spend time with the paternal grandparents rather than for the father to comply with Court orders.[13]
[13] Transcript 29 September 2021, p.146 lines 21–45.
There was, in my view, no error in the broad summary description adopted by the primary judge. In any event, even if error had been established, it was not such that it impacted the outcome of the proceedings.
This ground is similarly without merit.
Ground 10:
[The primary judge’s] Reasons of Judgement [146] is error finding.
At [146], his Honour concluded that he “cannot see that the parties could ever cooperate despite the father seeking an order for equal shared parental responsibility.” As evidence of the parties’ ability to cooperate, the father refers to an email sent by the mother on 18 April 2019 in which she states “Of course I think our child should spend reasonable time with both parents.”
Despite the mother sending that email, it was reasonably open to the primary judge, in the context of the entirety of the evidence to which I have earlier referred, to conclude that the parties are incapable of communicating in an appropriately child focused manner. Indeed, in the context of the evidence presented in the proceedings, no other conclusion was reasonably open.
This ground is therefore without merit.
Grounds 11, 13 & 14:
11[The primary judge’s] Reasons of Judgement [107], [110] and [143] are error findings.
13[The primary judge’s] Reasons of Judgement [113] is error finding. There is no evidence “indicating that the relationship is tenuous”.
14[The primary judge] ignores evidences that support the child’s loving bond with her father.
The father refers to various paragraphs of the reasons where his Honour relies on the Family Report writer’s evidence that the relationship between the child and the father could have diminished over time, and the fact of the geographical distance between the two, to conclude that the relationship is tenuous.
In presenting his argument in respect to this ground, the father has selectively chosen extracts from the Family Reports and evidence from the children’s counsellor, Ms R, to assert that there is a “warm and loving bond” between him and the child.
The father also succeeded in an Application in an Appeal to adduce further evidence, being two short video clips that were subsequently admitted into evidence in the appeal. Those videos depict the father engaging in activities with the child (such as tennis and riding a bike).
The oral evidence of the Family Report writer was that, as a result of the time that had elapsed subsequent to the child and the father spending time and communicating with each other, it was “likely” that the child’s relationship with the father had diminished due to her not spending time with him for quite a while. That evidence is entirely plausible and it was reasonably open to the primary judge to rely upon that evidence.
The video clips tendered into evidence show the child engaging in activities with the father at a very young age and inevitably would have been taken several years prior to the hearing. In addition to relying upon and accepting the evidence of the Family Report writer, the primary judge was entitled to have regard to the evidence set out at paragraph 47 of the Family Report dated 16 February 2021 which referred to the child’s distress when speaking about the father.
Having regard to that evidence, the finding by the primary judge that the child had a “tenuous” relationship with the child was reasonably open. However, even if error had been established in respect to the application of that descriptor to the child’s relationship with the father, it is not such that it impacted upon the outcome of the trial. Clearly, as previously explained, the focus of his Honour’s reasoning was upon the impact that the unrelenting history of coercive and controlling conduct had upon the mother and the impact that further contact between the parties would have upon the mother’s emotional and psychological wellbeing, with the child being consequently vicariously impacted.
Ground 15:
[The primary judge] ignore the evidence that the child had been serious hurt when she was with her mother.
This ground relates to the father’s contention that the mother caused injury to the child as an infant during an incident involving hot water. For reasons which I have explained, it is unnecessary for a trial judge to consider and refer to every piece of evidence presented during the course of a hearing.
No evidence was presented that, at any stage, the mother had deliberately inflicted injury upon the child. Appropriately, the fact that the child may have, regrettably, suffered injury due to an accident involving hot water when in the mother’s care did not impact upon the orders made by the primary judge. It was not incumbent upon the primary judge to refer to that incident which, in any event, was an irrelevant consideration in the context of the totality of matters considered by the primary judge to be relevant to the orders which he made.
This ground is without merit.
Ground 16:
[The primary judge’s] paragraphs [68] and [139(a)] did not consideration the fact that it was the mother who had been prohibited any connection between the child and the father at beginning of 2013. [The primary judge] wrongly finds it is the father’s “an act designed to cause fear”.
At [68] of the reasons, his Honour details an incident that occurred in April 2013 where the father unlawfully entered the mother’s home in City P through a window, despite the mother not providing him with the address. The mother was not home at the time, so the father waited in the home until the mother arrived. The mother’s flatmate in fact arrived prior to the mother and called the police. The father was charged, convicted of trespass and placed on a good behaviour bond.
It was entirely open to the primary judge to conclude that, in circumstances where he had not been advised of the mother’s location, the father stalked the mother.
The father’s acknowledgement that he acted inappropriately in regard to this matter, with respect, rings hollow in the context of this ground of appeal. It was reasonably open to the primary judge to find that the conduct of the father in locating, unlawfully entering and remaining in the mother’s home without her consent were, as his Honour found, acts designed to cause fear. Having made that finding, it was well within the proper exercise of discretion for the primary judge to determine that any contact between the mother and the father in the future, including for the purpose of the father providing cards and gifts to the child, would likely cause the mother stress and anxiety such that her parenting capacity would be adversely impacted.
This ground is without merit.
Ground 17:
[The primary judge’s] Reasons of Judgement [69] and [139b(b)] did not considerate the evidence of the mother threaten/intimation the father.
At [69] of the reasons, his Honour details the contents of emails the father admitted sending to the mother in 2014 threatening suicide and attempting to reconnect with her. The father now contends that his Honour failed to consider emails sent by the mother as referred to in Kent J’s reasons, Lim & Zong (2020) FLC 93-939 at [29]: “…emails from the mother to him which he argued demonstrated that the mother threatened him with loss of contact with the child…”if everything goes to court finally, I won’t promise what happen [sic] next. I can work globally as you know”. The father took that to be an intimidation or threat by the mother that she might relocate internationally with the child”.
Irrespective of the mother sending what must be regarded as an inappropriate email to the father, it was reasonably open to the primary judge to find that the unrelenting pattern of the father sending multiple abusive, coercive and controlling emails to the mother constituted family violence.
This ground is without merit.
Ground 18:
[The primary judge’s] Reasons of Judgement [71] and [139(c)] did not considerate the evidence of the mother coercive control over the father.
The father’s Summary of Argument does not address this ground of appeal.
At [71] of the reasons, the primary judge sets out the incident that occurred in December 2014 to which I have earlier referred where, after police were called to a City P shopping centre, the father approached the mother’s car and began banging his head on the car. The father was transported by ambulance to the hospital, where he told staff that he was frustrated that the child would grow up in a broken home and that he hoped he would reconnect with the mother for the child’s sake.
It was reasonably open to the primary judge to reject the father’s contention that his conduct was justified by the mother failing to facilitate time with the father and, instead, concluding that the father’s conduct on that day was intended to coerce the mother to grant him more time with the child.
This ground of appeal is without merit.
Ground 19:
[The primary judge’s] Reasons of Judgement [78], [86] and [139(g)] are error findings.
The relevant paragraphs of the primary judge’s reasons referred to in this ground of appeal set out his Honour’s conclusions that “the father has an inability to understand the child’s needs” and “issues of capacity and the responsibility of being a parent arose as a question of real safety for the child when in the father’s care and control.”
The reasons also referenced security footage of the father failing to hold the child’s hand on a train platform in order to pursue the mother on 21 April 2018. The father contends this finding is contrary to a supervisor’s report dated 1 June 2015 that states “activities…have been age appropriate and demonstrated an understanding of the child’s developmental stages” and “[the father] has been observed to respond to any needs [the child] has had during contact”. The father also contends that the mother’s lack of concern about the safety of the child in his care is confirmed by the fact that the mother allowed the child to travel to Country Q with him in 2019.
It is the case that the primary judge did not reference this supervisor’s report. Nor, for that matter, did the primary judge reference other allegations made by the mother.
Again, it is unnecessary for the primary judge to refer to each and every piece of evidence presented in the proceedings. Upon the basis of the evidence to which I have earlier referred, including the security footage of 21 April 2018, it was reasonably open to the primary judge to conclude that the father prioritised issues impacting upon him over and above safety concerns for the child.
This ground of appeal is without merit.
Ground 20:
[The primary judge’s] Reasons of Judgement [130] is error finding. [Mr O] was not informed these alleged-after-separation-abuse.
At [130] of the reasons, the primary judge referred to evidence from the mother’s treating psychologist to the effect that a deterioration in the mother’s parenting capacity, as result of the emotional and psychological trauma associated with the mother having an ongoing engagement with the father, would be something that was likely to adversely impact upon the child. However, that evidence was in fact presented by Ms A, the Family Report writer.[14] The error on the part of the primary judge in identifying the source of that evidence was not an error that impacted upon the outcome of these proceedings.
[14] Transcript 30 September 2021, p.234 line 38 to p.236 line 2.
In that respect, in Lane & Nichols (2016) FLC 93-750, the Full Court stated at [72]–[76] that a “misapprehension of evidence on the part of a judge at first instance does not lead axiomatically to an appeal from the decision being allowed.”
The apparent error on the part of the primary judge in identifying the source of that evidence has not resulted in a miscarriage of justice. The primary judge’s conclusion that the child would be vicariously impacted by a diminution in the mother’s parenting capacity was reasonably open on the basis of the evidence of the Family Report writer, the evidence of Mr O and the numerous other findings his Honour had made against the father (at [140]–[149]).
This ground is without merit.
Ground 21:
[The primary judge’s] Reasons of Judgement [78], [79] and [80] are error findings.
This ground of appeal appears to relate to an incident that occurred on 10 September 2016, where the child was due to be returned to the mother after spending time with the father. The primary judge accepted the evidence of the mother that, once the child was in the mother’s car, the father “jumped into her car” and refused to leave for two hours. The reasons state that, some time later, the father “jumped up” and prevented the mother from leaving the father’s share house with the child.
The father contends that the primary judge ignored his evidence that he was too tired to “jump up” that day and provides general statements of his travel from work to the airport, as well as the five hour flight from City K to City P.
As previously indicated, the primary judge generally preferred the evidence of the mother to the father. In circumstances where a trial judge does not believe a particular witness, no detailed reasons need to be given (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]; see also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA).
This ground is without merit.
Grounds 12 & 22:
12.[The primary judge] ignores that “independent children’s lawyer” mispresenting, especially when she start to do cross-examination with the family report writer.
22.[The primary judge] does not check the [Independent Children’s Lawyer’s] evidence.
The father has previously brought applications seeking to have the ICL discharged, including one which was dismissed that he subsequently appealed and was again dismissed.
This ground of appeal appears to assert that the judge was wrong to dismiss that appeal. No challenge has, however, been made to that decision.
Moreover, it is clear that the primary judge provided the opportunity to the father, on the first day of the hearing, to re-agitate his objection to the ICL appearing in the proceedings. The father did not avail himself of that opportunity. This was specifically noted by the primary judge, who delivered brief reasons in respect to that issue.[15]
[15] Transcript 28 September 2021, p.22 line 1 to p.23 line 6.
It is therefore not appropriate for the father to seek to agitate that issue in the context of this appeal, particularly where he refrained from doing so during the course of the substantive hearing.
These grounds are also without merit.
Costs
The issue of costs in respect to proceedings under the Act is to be determined in accordance with s 117 of the Act. That section relevantly provides that:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The general rule, as set out in s 117(1) of the Act, is that each party to the proceedings shall bear his or her own costs. This is, however, subject to s 117(2) of the Act which provides that, if the Court is satisfied that there are circumstances justifying it, the Court may make an order as to costs as it considers just. Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the parties for the Court to make an order for costs: Penfold v Penfold (1980) 144 CLR 311 at 13.
In considering whether it is appropriate and just to make an order for costs in favour of a party, it is unnecessary for the Court to be satisfied in respect of each and every factor set out in s 117(2A) of the Act,[16] nor does any factor set out in s 117(2A) of the Act have priority over another: Prantage & Prantage (Costs) [2014] FamCA 850 at [12].
[16] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41].
I accept that the father is of limited financial means. On the other hand, the mother earns a relatively small salary as a finance professional in the sum of $50,000 per year and has responsibility for maintaining both herself and the child. Moreover, in Cross & Beaumont (2008) 39 Fam LR 389 at [60], the Full Court held that financial incapacity to pay a costs order is not a barrier to the making of a costs order where the conduct of the party may warrant such an order being made.
Most significantly, in awarding costs I have had regard to the fact that the father has been wholly unsuccessful.
In terms of other considerations as referred to in s 117(2A)(g), the emotional cost of litigation is well documented. As Keane J observed in Rozenblit v Vainer (2018) 262 CLR 478 at [42]:
Litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional cost, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules. To the extent that the contention advanced on behalf of [the appellant] reflects an assumption that inefficiently or incompetently conducted litigation, and the waste in terms of time and money inflicted upon the other party or parties, is nevertheless consistent with the promotion of access to justice because the end may ultimately justify the means, that assumption must be rejected. Inefficient or incompetent conduct of litigation may cause injustice even if it is not intended to do so. Litigation that is conducted inefficiently, incompetently or in disregard of the rules by one party is no less oppressive to the other party because it is not intended to be oppressive...
(Footnote omitted)
That statement of Keane J is particularly pertinent in the context of these proceedings where the primary judge acknowledged that the father has used litigation as a tool in his unrelenting campaign of coercive and controlling conduct directed towards the mother. Indeed, that acknowledgement was justifiable and, in my view, establishes that the father has engaged in systems abuse to coerce and control the mother.
Accordingly, for these reasons there should be a costs order made against the father.
Amount of costs
Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the methods of calculating costs. These include, in r 12.17(1)(a), the Court fixing upon a specific amount for costs or, in r 12.17(1)(b), an order for the costs to be assessed on a particular basis.
In Stoian v Fiening (Costs) [2014] FamCA 944 at [91], Kent J endorsed the principles for applying a rule equivalent to r 12.17 when referring to r 19.18 of the now repealed Family LawRules 2004 (Cth) as adumbrated by Einstein J in Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23 at [9]. Those principles include:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;…
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;…
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;…
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;…
iv.the gross sum “can only be fixed broadly having regard to the information before the Court”;…
(Citations omitted)
Consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
The costs assessed by the mother are at Legal Aid rates, which are below the scale rate specified in the Rules which would otherwise apply on a party/party basis. The costs of the ICL are similarly at the Legal Aid rate. Those costs are entirely reasonable and considerably less than those which would be incurred if the mother’s representation and that of the ICL had been provided by non-legally aided practitioners.
Accordingly, the appeal is dismissed and I will make an order that the father pay the costs of both the mother and the ICL, which are assessed in each case at $4,671.90.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 20 September 2022
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