Manesh and Manesh (No. 3)

Case [2021] FamCAFC 113

FAMILY COURT OF AUSTRALIA

Manesh & Manesh (No. 3) [2021] FamCAFC 113

Appeal from: Manesh & Manesh [2020] FamCA 792
Appeal number(s): SOA 86 of 2020
File number(s): MLC 8955 of 2019
Judgment of: ALDRIDGE, WATTS & AUSTIN JJ
Date of judgment: 16 July 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Father to have no time with the child – Allegations of family violence – Where the primary judge did not err in finding an unacceptable risk – Where supervision would not ameliorate the unacceptable risk – No evidence put before the primary judge as to details of proposed supervision – Finding of unacceptable risk was open on the evidence – Where significant weight was given to the child’s views – Unchallenged evidence as to the child’s age and maturity – Where the father chose not to participate in the Family Report interviews – Appeal dismissed – Written submissions to be provided as to costs.
Legislation:

Family Law Act 1975 (Cth) s 60CC(3)

Family Law Rules 2004 (Cth) Sch 3
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Redmond & Redmond [2014] FamCAFC 155

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

SS & AH [2010] FamCAFC 13

Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Division: Appeal Division
Number of paragraphs: 64
Date of hearing: 26 April 2021
Place: Heard in Melbourne, delivered in Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Mr Goddard
Solicitor for the Respondent: Freeman Family Law
The Independent Children's Lawyer: Did not participate in the appeal

ORDERS

SOA 86 of 2020
MLC 8955 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR MANESH

Appellant
AND:

MS MANESH

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, WATTS & AUSTIN JJ

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Costs are reserved.

3.The appellant is to file and serve written submissions dealing with the issue of costs within fourteen (14) days of these orders, with the respondent to file submissions in response within a further fourteen (14) days. The appellant to have the option to file submissions in reply within a further seven (7) days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons…

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AGLC
Manesh and Manesh (No. 3) [2021] FamCAFC 113
Case
[2021] FamCAFC 113
Decision Date

CaseChat Overview and Summary

In the matter of Manesh and Manesh (No. 3), the appeal was brought by the father against the interim parenting orders that prohibited him from spending any time with his daughter. The Family Court of Australia had determined that the risk of the child being exposed to family violence if the father had contact with her was unacceptable. The father contested these findings and argued that the primary judge erred in his assessment of the risk and the evidence presented. The Court of Appeal was tasked with reviewing the primary judge's decision to ensure that it was legally sound and supported by the evidence.

The legal issues before the Court of Appeal were whether the primary judge's findings of an unacceptable risk of harm were open on the evidence and whether the proposed orders for supervision could have mitigated this risk. The father contended that the primary judge did not adequately explain why the evidence led to a finding of an unacceptable risk, did not consider all the evidence, and gave excessive weight to certain evidence. The Court examined the evidence presented, including allegations of serious family violence by the father, the child's account of her experiences, and the father's denial of these allegations. The Court concluded that the primary judge's findings were adequately supported by the evidence and that the proposed supervision would not have ameliorated the unacceptable risk.

The Court of Appeal held that the primary judge did not err in finding an unacceptable risk of harm and that supervision would not have been an effective measure to mitigate this risk. The Court found that the primary judge provided sufficient reasons for his decision and adequately weighed the evidence presented. The father's submission that the primary judge did not consider all the evidence or gave excessive weight to certain evidence was rejected. The Court also noted that the father chose not to participate in the Family Report interviews, which further undermined his case. The appeal was dismissed, and the Court reserved costs, directing the parties to file written submissions on the issue of costs within specified timeframes.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. Costs are reserved.

3. The appellant is to file and serve written submissions dealing with the issue of costs within fourteen (14) days of these orders, with the respondent to file submissions in response within a further fourteen (14) days. The appellant to have the option to file submissions in reply within a further seven (7) days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

These aspects of the father’s grounds do not succeed.Was the finding of unacceptable risk open on the evidence? The father submitted that the finding of unacceptable risk was not available on the evidence, that the primary judge did not explain why the evidence gave rise to an unacceptable risk of harm, did not consider all of the evidence, and gave excessive weight to it which again were expressed in a variety of ways. The mother’s evidence, summarised above, raises allegations of serious family violence that, at times, occurred in the presence of the child. The child told the single expert of her experience of violence involving the father. If accepted, this evidence establishes that the father engaged in serious violence towards the mother and the child. The primary judge then took into account the father’s denials and, without deciding whether or not the mother’s and the child’s allegations were correct, found that, having regard to the nature and extent of the allegations, for the purposes of an interim hearing, a case of unacceptable risk was established and that the Court should act protectively towards the child. We see no error in his Honour’s approach. It is well established that a trial judge must give adequate reasons for their decision so that the parties might understand why they were made (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]). It is clear from his Honour’s reasons why he considered there was an unacceptable risk of harm and why the proposed orders for supervision were not made. It follows that the reasons are adequate. It was submitted that some of his Honour’s findings were couched in terms of final findings. For example, his Honour said:36.The father made another affidavit. It was dated 5 June 2020. He prepared the affidavit. By occupation he is a [consultant] who I presume has no legal training. Yet his use of legal phrasing such as “I join issue with [the mother’s] allegation” suggests he may have had help preparing the affidavit. Even if he did, it is the substance of the evidence he gave that is important. In it the father deposed to financial matters, for the most part. To the extent that matters relevant to [the child] were introduced by the father in that affidavit, he again took issue with [the single expert’s] report. He said [the child] became upset upon learning that the father had met with the vice principal of [the child’s] school. He also revisited the 27 April 2019 incident. He said the following – Given the input I have received from programs attended by me, I feel that I am in a good position armed with the necessary insight to address [the child’s] behaviour.37. He missed the point – it was his behaviour that required addressing.…61.The definition of family violence under the Family Law Act is very broad. That was deliberate. The family consultant’s evidence from [the child] was unmistakable. To my mind it told of the existence of an unacceptable risk of family violence. Under s 60CC (2) I am required to given greater weight to the need to protect [the child] from family violence than I am to give to the benefit of [the child] having a meaningful relationship with both parents.…77.No child should be exposed to family violence. No child should be subjected to family violence. Where a risk exists in either respect, then that should be assessed. If the risk is unacceptable, then the parent seeking time should be refused time. The father’s contention about the allegations against him not being proved proceed according to what appears to me to be his conception of a criminal standard of proof. For present purposes it seems to me that the father’s past behaviour up to the 27 April 2019 incident revealed or may have revealed indicia of family violence, such as the striking of the mother’s face causing her nose to bleed, putting [the child] under a cold shower, constant arguing, constant denigration, a large amount of which [the child] saw and heard. In some of it she was the victim. On one version of the evidence the father swore and yelled directly at the children, itself a species of family violence. The father says he has undertaken courses to alter his behaviour. Whether he is to be believed or not is a matter for trial.78.Then there is the evidence of the event on 27 April 2019. While disputed, if the mother’s version of it is found at trial to be correct, a very concerning matter is raised. Exposing [the child] to a repeat of that incident represents an unacceptable risk, in my view.79.I take the view that an unacceptable risk exists that [the child] will be exposed to or subjected to family violence if the father’s application succeeds. As no details of supervision were proffered, the proposal for supervised time was not made out. But even with supervised time, it is contrary to [the child’s] wishes as conveyed to [the single expert].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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