Pachris & Tajir
[2023] FedCFamC1A 60
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pachris & Tajir [2023] FedCFamC1A 60
Appeal from: Pachris & Tajir (No 2) [2022] FedCFamC2F 1296 Appeal number(s): NAA 232 of 2022 File number(s): PAC 3726 of 2021 Judgment of: ALDRIDGE J Date of judgment: 11 April 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from parenting orders – Unacceptable risk of harm – Where the appellant sought leave to file an Application in an Appeal for the vacation of the hearing and leave to adduce further evidence – Where the further evidence was a video of the parties’ sexual interaction – Where the appellant contends that the video could show error in the primary judge’s findings – Where there is not a proper ground of appeal available that could challenge the primary judge’s reasons – Where counsel for the appellant has not viewed the video – Where the appellant consented to paying the costs of the respondent and the Independent Children’s Lawyer thrown away as a result of the application – Orders made adjourned the appeal and the balance of the application and for the legal representatives to view the video. Legislation: Family Law Act 1975 (Cth) s 68B Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Number of paragraphs: 38 Date of hearing: 11 April 2023 Place: Sydney Counsel for the Appellant: Mr Moutasallem Solicitor for the Appellant: Lyons Law Group Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Santo Family Lawyers Counsel for the Independent Children’s Lawyer: Ms Conte-Mills Solicitor for the Independent Children’s Lawyer: Harb Lawyers ORDERS
NAA 232 of 2022
PAC 3726 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PACHRIS
Appellant
AND: MS TAJIR
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
11 APRIL 2023
THE COURT ORDERS THAT:
1.Leave is granted to the appellant to file the Application in an Appeal dated 11 April 2023 and the affidavit sworn by Mr W on 11 April 2023.
2.The hearing date of the appeal is vacated.
3.The appeal and the balance of the Application in an Appeal filed 11 April 2023 are adjourned to 14 June 2023 at 10.00 am.
4.The appellant pay the respondent’s costs fixed in the sum of $6,000 and the costs of the Independent Children’s Lawyer fixed in the sum of $4,000 thrown away by reason of the adjournment on or before 9 May 2023.
5.The balance of the costs of the respondent and the Independent Children’s Lawyer of the appeal and the Application in an Appeal filed on 11 April 2023 are reserved.
6.The Court requests that the Office of the Director of Public Prosecutions and NSW Police make available to the following lawyers in this appeal the video held by them as to the events of 20 or 21 February 2020 relating to charges against the appellant to Mr Ahmad Moutasallem, Ms Janai Tabbernor, Ms Carla Santo, Ms Karen Conte-Mills and Mr Claude Harb.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pachris & Tajir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
The Court has listed before it today an appeal for hearing from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 22 September 2022. The orders are of some importance because they provided for the parties’ two children, who are born in 2015 and 2017 to live with the respondent and to spend no time with the appellant. In addition an injunction was made under s 68B of the Family Law Act 1975 (Cth) that the appellant not approach the respondent or the children, the respondent’s home, or the children’s school or extra-curricular activities. This order was made because the primary judge was satisfied that the children were at an unacceptable risk of harm if they were to spend time with the appellant due to his acts of family violence and drug use. He was found to have committed a number of serious assaults against the mother as well as a multitude of behaviours of coercive and controlling nature.
At the commencement of the appeal, counsel for the appellant was granted leave to file an Application in an Appeal seeking the vacation of the hearing date and that leave be granted to adduce further evidence on the appeal, namely the full video of the sexual interaction between the appellant and the respondent which was taken on 20 or 21 February 2020.
The application itself was opposed by the respondent and the Independent Children’s Lawyer (“the ICL”).
The relevance of the video is this – the primary judge found that the appellant forced anal sex upon the respondent and that he did so in circumstances that indicated that it was an act of domination, an assertion of power and an act of punishment.
In doing so, her Honour relied not only on the evidence of the parties, but also a three minute video, which was found to support the respondent’s allegations.
As was accepted by the respondent in cross-examination, the three minutes is but a segment of a longer video, which lasted for about 20 minutes. Her evidence was that much of the video was lost when she transferred it to another phone. She also accepted that about half of the activity that was recorded in the full video was consensual. The findings as to this event were directly relevant to the outcome of the proceedings.
Whilst her Honour found that the many acts of violence and coercive and controlling behaviour were such that the appellant should spend only limited and supervised time with the children, the question then arose as to whether there should be any time at all.
This question was resolved in [248]–[252] of her Honour’s reasons.
At [249], her Honour said:
249.…The Court Child Expert opines that there is a risk that the mother’s reported symptoms of depression, anxiety and post-traumatic stress disorder will persist if she has ongoing contact with the father. Further, “If orders were made for the children to spend time, I think that would be difficult for [the mother]” in circumstances where the mother has not resiled from her allegation that the father raped her. Thus if the mother is to have ongoing contact with the father it will be stressful and traumatic for her and: “it’s likely to make it difficult for them to care for their children in a really highly attuned manner if they’re going to be traumatised by having contact with the perpetrating parent.” When this traumatic response happens, they become less available, less attuned to the children as they are more preoccupied with their concerns and worries.
(Footnotes removed)
Thus whilst the no time order was based on the appellant’s conduct as a whole, particular emphasis was given to the event of February 2020. Ultimately, at least on this issue, counsel for the ICL accepted that the proposed evidence was critical.
That however is not the end of the matter as there are many considerations which point against the application. The first is the structure of the appeal itself. The original Notice of Appeal contains seven grounds. Ground 4 asserted for a large number of reasons that the primary judge erred relying on giving significant weight to the video. That ground was abandoned when the Amended Notice of Appeal was filed on 11 January 2023.
There is currently no ground of appeal that challenges her Honour’s findings as to what occurred on 20 or 21 February 2020 so those findings remain unchallenged and are presumed to be correct.
Counsel for the respondent and counsel for the ICL were entirely correct when they submitted that the present application must be seen as an application to amend the Notice of Appeal itself. Absence such amendment the application must fail because the proposed evidence would not be relevant to a ground of appeal. There are no proposed grounds of appeal for reasons I shall deal with shortly, but primarily because counsel for the appellant has not yet seen the video.
The second matter is the conduct of the trial itself. The respondent referred to the video in two of her trial affidavits. The appellant did not respond to them and for reasons that remain entirely unexplained, neither he nor his lawyers watched the video prior to the commencement of the trial. They did so during the hearing itself, but no application was made to adduce further evidence in chief from the appellant.
The appellant’s counsel, however, cross-examined the respondent to suggest that all the activity in the video was consensual. As I have said, she accepted that about half of it was. The appellant was cross-examined but gave no explanation as to why the video should be seen as depicting consensual activity. At some stage he suggested that the respondent was not crying but was laughing. A point that the primary judge rejected entirely.
Indeed, her Honour had regard to the appellant’s evidence at [125]–[126] of the reasons and considered that the appellant’s own concessions made during the course of cross-examination enabled the finding of non-consensual anal sex to be grounded on his own evidence.
There is therefore some doubt as to whether the viewing of the 20 minute video would show error in these findings. As was clearly pointed in CDJ v VAJ (1998) 197 CLR 172, further evidence should not be adduced unless it is likely to demonstrate error in the outcome.
The third matter is the conduct of the appeal. As I have said the appellant made a considered decision to abandon the ground of appeal asserting error as to the use of the video.
The fourth matter is the conduct of this Application in an Appeal itself. The respondent and the ICL were only given notice of it this morning. It appears from the affidavit of the solicitor for the appellant that the appellant has been charged with criminal offences arising out of what occurred on the 20 or 21 February 2020.
He says that he received the brief of evidence from the Office of the Director of Public Prosecutions on 9 March 2023 but that did not include a copy of the video. For obvious reasons, police are sensitive to providing ready contact to what is obviously otherwise pornographic material.
Ultimately the solicitor provided an undertaking to the Office of the Director of Public Prosecutions in relation to the video, although he does not say what the terms of the undertaking were. For some reason there was some difficulties involved in the undertaking which had to be resent and on 20 March 2023 he received a working link to access the video.
For some reason, again entirely unexplained by the solicitor, he did not view the video until 31 March 2023. He ultimately confirmed with counsel who appeared in the appeal this morning on 9 April 2023 where the decision was made to bring the present application.
The solicitor deposes that he was unable to show counsel who appeared today the footage because of the undertaking. As I have said, he has not deigned to inform the Court of the terms of the undertaking and has entirely failed to explain why he did not seek the extension of the undertaking so as to prepare him to show the video to counsel. He proposes that a subpoena be issued to have the video come to this Court, where presumably it can be released to the parties.
He then deposes that:
23.Having reviewed the footage and considered the paragraphs of the judgment of [the primary judge] relevant to the alleged sexual assault on 20 and 21 February 2023 I can indicate to the Court that I consider that the full footage is relevant to the question of whether the sexual interaction on that occasion was consensual. I have read the affidavit of the respondent filed 19 April 2022. I have also had regard to the [respondent’s] oral evidence that the recording was of the middle to end of the recording (T298). From my observations, the 3-minute portion tendered appears to be from the beginning of the video, the remainder of the 20-minute video appears from my observation to depict consensual sexual activity.
(Affidavit of Mr W filed on 11 April 2023, paragraph 23)
It has to be said that on one view of it, the last sentence is equivocal. Perhaps the more natural reading of it is that 17 minutes of the video showed consensual sexual activity as opposed to the three minute portion. It has been urged on me, however, what was meant to be said was that the 17 minutes of consensual activity also indicates that the three minute portion was also consensual.
There is a significant difficulty with this paragraph of the affidavit. The solicitor does not set out what he observed and does not say what he saw or heard that enabled him to come to the view that it shows consensual sexual activity. Indeed, certainly on final hearing, such a statement would be entirely inadmissible.
So the difficulty is this – there are sound procedural reasons for rejecting the application. However it has to be said that the allegations made against the appellant are significant and whilst it is likely that any error that would be attributed with benefit of hindsight to the primary judge, the only likely order to be affected by the reception of the further evidence is the no time order.
I say this because as appears amply from her Honour’s reasons there were many other acts of coercive and controlling behaviour that subject to the matters raised by the present appeal, and as it currently stands had not yet been considered, would justify an order for very limited supervised time. However the children are young and effectively the order shuts the appellant out from their lives effectively at least until they are 18.
Taking all these matters into account, I place particular weight on the possibility that the video would demonstrate that the finding that the after effects of the incident are such that the respondent’s parenting of the children would be so adversely affected if the children were to spend time with the appellant that it might demonstrate that such a finding is erroneous. That order significantly affected the lives of the children.
However I am not prepared to accede to the application to adduce further evidence at this stage. I am far from satisfied that there is a proper ground of appeal available that would challenge her Honour’s findings and counsel for the appellant is not in a position to suggest that there are proper grounds for such an appeal because he has not seen the video.
I am not therefore persuaded to embark on a restructuring of the appeal unless and until I can be assured that there are proper grounds on proper material that can justify that course.
Therefore the consideration becomes one of whether the appeal should be adjourned so as to give the appellant that opportunity. In deciding whether to take that step I take into account that the monetary prejudice caused by such a course can be ameliorated by the appropriate costs order, a course to which the appellant has consented.
I accept that there is a another prejudice in that the appeal will remain on foot which will cause the respondent further concern and distress which is likely to have some adverse effect on the children. Nonetheless I think that the opportunity should be given.
I vacate the hearing date of the appeal.
The Application in an Appeal is otherwise adjourned to 14 June 2023 at 10.00 am for further consideration.
At that time I will expect if the application is to be prosecuted further, that there will be available at that time, a proposed further Amended Notice of Appeal plus written submissions in support and proper evidence as to the relevance of the video to those grounds of appeal.
Based on other experience I have had with similar sorts of footage held by police, it should be sufficient for me to make a request to the NSW Police that counsel and instructing solicitors in this matter have the opportunity to view the video if they wish.
I make the following orders:
(1)The hearing date of the appeal is vacated.
(2)The appeal and the balance of the Application in an Appeal are adjourned to 10.00 am on 14 June 2023.
(3)The appellant is to pay the costs of the respondent fixed in the sum of $6,000 and the ICL fixed in the sum of $4,000 thrown away by reason of the adjournment on or before 9 May 202.
(4)The balance of the costs of the respondent and the ICL of the appeal and the Application in an Appeal are reserved.
(5)I request that the Office of the Director of Public Prosecutions and NSW Police make available to the following lawyers involved in this appeal, the video held by them as to the events of 20 or 21 February 2020 relating to the charges against the appellant to Mr Moutasallem, Ms Tabbernor and Ms Conte-Mills of counsel and the respondent’s solicitor, Ms Santos and the ICL, Mr Harb.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 3 May 2023