Pachris & Tajir (No 3)
[2023] FedCFamC1A 230
•13 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Appeal from: Pachris & Tajir (No 2) [2022] FedCFamC2F 1296 Appeal number: NAA 232 of 2022 File number: PAC 3726 of 2021 Judgment of: ALDRIDGE J Date of judgment: 13 December 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Orders made for the children to live with the mother and spend no time with the father – Primary judge made findings of sexual assault, violence and coercive and controlling behaviour perpetrated by the father against the mother – Some matters cast doubt on aspects of the mother’s evidence but insufficient to compel its rejection – Father needs to do more than show alternative finding was available – Father failed to show findings affected by impressions of credibility and demeanour were glaringly improbable – Evidence of Family Report provides basis for primary judge’s findings of risk – Path of reasoning readily identifiable – Outcome cannot be described as unreasonable or plainly unjust – Appeal dismissed – Father to pay the costs of the mother and Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) s 68B
Criminal Procedure Act 1986 (NSW)
Cases cited: Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Pachris & Tajir [2023] FedCFamC1A 60
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Number of paragraphs: 74 Date of hearing: 11 April 2023, 14 June 2023, 5 July 2023, 21 August 2023, 19 September 2023 and 13 December 2023 Place: Sydney The Appellant: Litigant in person 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:
13 DECEMBER 2023
THE COURT ORDERS THAT:
1.Appeal NAA 232 of 2022 is dismissed.
2.The appellant is to pay the respondent’s costs of the appeal fixed in the sum of $26,024.39 and the costs of the Independent Children’s Lawyer fixed in the sum of $4,478, each order to be complied with within 28 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 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 JUDGMENTALDRIDGE J:
INTRODUCTION
This is an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 September 2022 in proceedings between Mr Pachris (“the father”) and Ms Tajir (“the mother”).
The parties have two children, born in 2015 and 2017. The orders provide for the children to live with the mother, who is to have sole parental responsibility for them. The children are to spend no time with the father. Injunctions were made under s 68B of the Family Law Act 1975 (Cth), restraining the father from approaching or contacting the mother or the children, or coming within 100 metres of their home or school, amongst other things.
The father has appealed the orders.
Before turning to the appeal itself, it is necessary to explain why this appeal has taken so long to be determined.
PROCEDURAL HISTORY
The appeal was first listed for hearing on 11 April 2023. On that date the father filed an Application in an Appeal seeking to vacate that hearing date and to adduce further evidence. That evidence was a video recording of a sexual interaction between the parties in early 2020.
A version of that video had played a significant part in the trial and significantly influenced the outcome. The primary judge had, in evidence, a video recording of sexual activity between the parties that lasted for 3 minutes and 20 seconds. It was not in dispute at the hearing, that the original recording was significantly longer than this, but this was the only portion that was available.
The primary judge found, having regard to the content of the video and the other evidence, that on this occasion the father sexually assaulted the mother by forcing her to have anal intercourse without her consent and did so in circumstances where the act was one of domination, assertion of power and punishment.
The father was charged with a criminal offence arising out of the matters contained in this recording. As part of their investigation, the New South Wales Police (“NSW Police”) were able to recover a longer version of the recording which was some 20 minutes in duration. A copy of this recording was served on the father’s solicitor acting for him in the criminal proceedings as part of the brief of evidence for the criminal trial. The father’s lawyer formed the view, that when viewed in its entirety, the longer version of the recording demonstrated that what occurred between the parties was, in fact, consensual.
For reasons I gave at the time, I vacated the hearing date (Pachris & Tajir [2023] FedCFamC1A 60). In accordance with previous practice involving similar videos, I requested that the Office of the Director of Public Prosecutions (“ODPP”) and the NSW Police make available the full recording for viewing by the lawyers in these proceedings. The ODPP declined to do so and the NSW Police took the stance that in light of that position, they should not comply with the request either.
In June 2023 I granted the father leave to issue a subpoena to the NSW Police and the ODPP with the video to be produced to the Court on 5 July 2023. On that date, each of the NSW Police and the ODPP appeared via counsel. Each stated they sought an adjournment to enable their clients to seek advice as to whether or not they should object to the production of the video.
Accordingly, directions were made permitting the ODPP and the NSW Police to file applications to set aside the subpoena. That application was set down for hearing on 21 August 2023. On that day the ODPP had not complied with the directions and the matter was adjourned to 19 September 2023 with a costs order made against the ODPP.
Subsequently, the ODPP lodged written submissions signed by counsel in support of an application to set aside the subpoena, asserting that when regard was had to particular legislation, including the Criminal Procedure Act 1986 (NSW), the ODPP could not comply with the subpoena.
At the hearing on 19 September 2023, a different stance was taken. The ODPP’s written submissions were withdrawn and counsel produced a USB stick containing the video recording. Orders were made for the inspection of the video. The lawyers for the father were permitted to do so, and only in the event that an Amended Notice of Appeal and written submissions relying on the contents of the video were filed were the remaining lawyers permitted to view the video.
In any event, no such Amended Notice of Appeal or further submissions were filed and in November 2023, the father’s lawyers indicated that they no longer pressed to have the video adduced in evidence. A Notice of Discontinuance of the application to adduce further evidence in the appeal was filed shortly before the hearing of the appeal.
At the hearing of the appeal, the father’s lawyers appeared to seek leave to withdraw. Their instructions had been terminated and on 11 December 2023 they had filed a Notice of Ceasing to Act.
The father has conducted the appeal himself. Meaning no disrespect to him as a litigant in person, his submissions ranged far and wide beyond the grounds of appeal, including repeated references to the contents of the full length video which is not before me and will not be before me because the application to adduce it was discontinued.
He also referred at some length to text messages that he said ought to have been in evidence but were wrongly rejected. There is no ground of appeal dealing with that topic and there is no material before me in the Appeal Book, in any event, that would enable me to rule on it.
The father also made extensive reference to what might conveniently be described as the criminal history of relatives of the mother which he asserted was not taken into account. That is in fact not correct, see [262]–[267] of her Honour’s reasons.
The purpose of a Notice of Appeal is to identify with precision the errors that the appellant asserts the primary judge has made. It accordingly sets out the meets and bounds of the appeal. To those grounds I shall now turn.
THE REASONS FOR JUDGMENT
In order to understand the grounds of appeal, it is necessary briefly to survey her Honour’s reasons.
As I have already indicated, the primary judge dealt extensively with the excerpt of the video material that was before her. The father specifically deposed that he had never engaged in anal sex with the mother or with any other woman. Such a stance was unsustainable with the content of the video and ultimately the father conceded in evidence that “there were twelve occasions when he was having anal sex with the mother [during which] he told her to ‘shut up and take it’” (at [116]). The father continued, however, to deny that the sex depicted in the recording was non-consensual. That evidence was not accepted.
In addition to the finding of the sexual assault, the primary judge found that the father had committed a number of specific acts of violence such as:
·When the mother was seven months pregnant with the eldest child, the father pushed her by the shoulders, slammed her against a wall and screamed “you fucking dog. How can you do this to me, I am sick of the way you are. You are not obedient” (at [135]).
·One month later, whilst the mother was eight months pregnant, the father kicked the mother in the stomach.
·In 2016, the father grabbed the mother by her shoulders and pushed her against the wall in the living room.
·In 2017 the father punched the mother in the shoulder with a closed fist, causing her to fall backwards. This event was witnessed by an independent witness.
·In 2019, the father said to the mother “You are nothing but a fucking liar and a dog.”, “Tell me – who did you see today? I am going to find out whoever you were with then deal with them”, “Give me your phone you little slut. Gimme it, you whore” (at [144]). The father tried to grab the mother’s phone from her, but she put it down her shirt and sat with her head down and knees against the floor. The father kicked her in the head and left the apartment. This occurred on the balcony. When the mother attempted to get back inside the apartment she found that she had been locked outside. At the time, the mother had a two and three year old child inside. The mother became so frightened that she urinated on herself.
In addition, the primary judge found that the father had sent abusive and threatening communications, and between [154]–[182] the primary judge set out examples of coercive and controlling behaviour of the father, most of which was recorded on WhatsApp messages or text messages, as well as emails. This led to the following conclusions:
240.I am satisfied and find, grounded on the findings made by me as to the serious physical and sexual assaults perpetrated by the father upon the mother and the coercive and controlling nature of same together with the conduct of the father as set out earlier in these reasons, that the children are at an unacceptable risk of both physical and emotional harm in spending time with the father.
…
245.The Court Child Expert opined that sexually abusive behaviour is enough in itself to constitute the coercive and controlling behaviour that would lead her to the view that the father should spend no time with the children as the flow on effect of the risk to the mother’s capacity and mental health is too great. She was not challenged on this opinion and I accept it.
246.The Court Child Expert opined that the comments made by the father to the mother such as: “Remember what I told you I was going to do to you” and the mother responding by apologising sounds threatening and intimidating and I so find.
247.The father saying to the mother: “When you do your shit again, that’s what happens” whilst still inside the mother’s anus absent her consent is coercive and controlling and indicates a threat by the father as to future conduct. It has a basis in power and control and puts the mother in a position of being submissive as she has “no power in that dynamic.” Once a pattern of violence and sexual coercion is established, it is possible for the perpetrator to threaten even with a message. I accept this evidence which was unchallenged.
(Footnote omitted)
After referring to the single expert’s evidence as to the effect of the father’s behaviour on the mother, the primary judge made the following findings:
251.Whilst I make no findings as to any medical diagnoses or conditions of the mother, I accept and find the children spending any time with the father would be stressful and traumatic for her. I accept and find that the children spending time with the father would negatively impact the mother’s ability to parent the children as stated by the Court Child Expert. I accept and find that there is a risk that the [children‘s] safety could be compromised as a result.
THE APPEAL
Grounds 1, 2, 4 6 and 7 were abandoned in the Summary of Argument filed 11 January 2023.
Ground 3 is stated as “The Trial Judge’s finding that the wife was a credible witness was an error of fact”.
Ground 5 is stated as “In making findings of family violence Her Honour was in error in ignoring the significant event occurring [in] 2018 and finding that family violence occurred as the wife alleged in […] 2015”.
These grounds were argued together. The essence of the submission is that there were three instances in which the mother asserted that the father had been physically violent to her, but where, on proper analysis, the evidence could not be accepted. It was submitted that this evidence “is directly contradictory to the Respondent’s case or at least material to it, and importantly militates against the actual findings ultimately made in relation to the 2015 incidents at paragraphs 137 and 139 of the reasons” (father’s Summary of Argument filed 11 January 2023, paragraph 11). That incident is one to which I’ve already referred and was when the father kicked the mother in the stomach whilst she was pregnant.
The primary judge did not refer to these allegations in her reasons.
It has to be said immediately that, even if these submissions are accepted, and the 2015 incident is ignored, there remains the other instances of family violence found by the primary judge which are not challenged in the appeal, some of which were witnessed by independent witnesses or evidenced by the video material or the extensive WhatsApp messages, text messages and social statements. In the light of all that evidence, it is difficult to see how, even accepting the submissions, the outcome of the proceedings would be any different.
The first incident to which the father refers is one that occurred in 2018. The mother’s affidavit describes her being in the car with the children while being driven by the father, who became angry, screamed at her at the top of his voice and began swerving the car towards oncoming traffic. When the father ultimately stopped, the mother went to see how the children were and the father ran towards her yelling, “get the fuck back in the car you fucking dog. Watch what I do to you” (mother’s affidavit filed 7 April 2022, p.11).
The father made a number criticisms of this evidence, which include the mother not being able to recall the incident in her oral evidence and accepting that she had disclosed to the NSW Police that her brother had physically assaulted her at about 3.00 pm on the same day, meaning that there were two assaults on that same day. The father submitted that this was inherently unlikely.
These are matters that cast some doubt on this aspect of the mother’s evidence. Nonetheless, they do not compel its rejection. The father also referred to text messages and oral evidence that cast some doubt on the acceptance of the mother’s version of the 2015 events.
The father accepts, as he must, that a primary judge is not bound to refer to all of the evidence. That does not mean that it has not been considered (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
Assuming for the moment that the father’s submissions are correct and that the evidence of the 2018 incident could not be accepted, that does not mean that the balance of the mother’s evidence should not be accepted. It is well established that a trial judge may accept some parts of a witness’ evidence and reject others. In Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201, Lord Blackburn said:
The jurors are not bound to believe the evidence of any witness; and they are not bound to believe the whole of the evidence of any witness. They may believe that part of a witness’s evidence which makes for the party who calls him, and disbelieve that part of his evidence which makes against the party who calls him …
See also Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322 and Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at [121].
Indeed, the mother’s evidence on many matters was supported by independent evidence such as the video, the testimony of independent witnesses and copies of text, email and social media messages. Thus, even if other aspects of her evidence might be put to one side, it is difficult to see how the supported evidence could be anything other than accepted.
More importantly, in order to challenge findings such as these, the father needs do more than merely show another finding was available. In Devries v Australian National Railways Commission (1993) 177 CLR 472, a case relied upon by the father, the majority said at 479:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
(Footnotes omitted)
The father, however, relied on the following statement by Deane and Dawson JJ at 480:
If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge’s conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence.’
(Emphasis added)
I do not accept that this passage is support for the proposition that once demeanour plays no part in a trial judge’s determination, then the appeals court is free to make its own finding.
The primary judge said this of the father’s evidence:
57.… I found as a whole his evidence to be inconsistent and unconvincing. A significant portion of the father’s responses to questions asked of him was “I don’t recall” or “I don’t remember” even with respect to questions the father should have been able to answer. His tone was smug and arrogant. I found him to be insincere in his responses;- “I don’t recall, I do apologise.” At one stage I observed the father to start laughing during the course of cross-examination…
…
59.I am satisfied and find that when the father perceived his answer to a question would not assist his case he would simply respond “I don’t know how to respond to that. I’m sorry.”
(Footnote omitted)
Whilst findings as to tone and appearance are certainly demeanour-based findings, the balance are not. They were findings based on the content of evidence which are to be distinguished from demeanour.
Finally, reference must be made to Lee v Lee (2019) 266 CLR 129, where the majority said at [55]:
A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.
(Footnotes omitted)
The primary judge’s findings were affected by impressions as to credibility and reliability of seeing not only the father give evidence, but also the mother and the independent witnesses she called to corroborate her evidence. Therefore, in order to displace those findings, the father must show that they were glaringly improbable or contrary to compelling inferences. They are not.
The father in his oral submissions also said that there were many text messages from the mother that showed that the sexual activity was consensual and that these were ignored by the primary judge. That is not so, as is evident from [119] of her Honour’s reasons.
These grounds do not succeed.
Ground 8 is stated as:
8.That the learned trial judge's discretionary judgment miscarried as a result of an error in fact in her Honour's conclusion that there was an unacceptable risk to the children that an order other than for the children to have no time or contact with the Father:
8.1 may adversely impact the Mother's parenting capacity; or
8.2 could not be ameliorated.
This ground seeks to challenge the following finding:
251.Whilst I make no findings as to any medical diagnoses or conditions of the mother, I accept and find the children spending any time with the father would be stressful and traumatic for her. I accept and find that the children spending time with the father would negatively impact the mother’s ability to parent the children as stated by the Court Child Expert. I accept and find that there is a risk that the [children’s] safety could be compromised as a result.
The essence of the submission was contained in paragraph 21 of the father’s Summary of Argument as follows:
21.It is submitted that this articulation of risk, on its terms, is built on a series of cascading aetiological premises about the probability of occurrence of one postulated event after another, the determination of likelihood or probability of each of which, it is submitted, is in various respects not factually supported by the evidence available, and the culmination of which is a finding as to risk which is burdened with error.
Regrettably, the language used makes it difficult to understand the submission. However, as I understand it, the submission is that there is no clinical evidence to the effect that stress or trauma was certain or likely from the father having contact with the children and that the use of the words “would”, “should” and “could” indicates that the effect on the children was a mere speculative possibility.
There was, contrary to the submission of the father, evidence as to the effect of the children seeing the father. The Family Report of Ms F dated 24 March 2022 said:
93.… There is a risk, however, that [the mother’s] symptoms will persist if she has ongoing contact with [the father], particularly if it is for the purpose of co‑parenting the children in an ongoing dynamic of coercive controlling family violence behaviour by [the father].
94.If the children attune to [the mother’s] anxiety about them spending time with [the father], then this may increase their fearfulness about spending time with him. Anxiety is a normative emotion and when experienced in some circumstances, such as when faced with a dangerous or life-threatening situation, it can be protective. If, however, anxiety is experienced by children in situations absent of any risk and is reinforced by their caregivers, than [sic] this can cause responses that later become maladaptive to otherwise normal and safe circumstances. If this is persistent then this may result in the children developing a more significant mental health condition as they grow. …
The Family Report writer added:
106.The identified risks and the complexity of the co-parenting relationship is such that it seems untenable, for the children, for them to spend significant or substantial time with [the father] if at all.
I have already referred to passages in the primary judge’s reasons dealing with the controlling and coercive behaviour of the father and the fact that the flow-on effect and risk to the mother’s capacity and mental health is too great. It remains to add the primary judge’s conclusion as follows:
248.The mother reported to the Court Child Expert that she tried to protect the children from harm by separating from the father and that the thought of the children spending any time with the father is distressing for her. In cross-examination she stated that she would abide by court orders but that any orders for time between the children and the father: “would be distressing. I would have to abide by what her Honour rules out, but it would be distressing. I would be very upset, yes.” When specifically asked as to the nature of her distress the mother’s evidence was: “Just the thought of his name or being in the same room of him. He is someone that caused me a lot of pain. I try to avoid him. I’ve blocked him. I’m trying to get him – when someone has abused you so many times, you just don’t want to be part of them.”
249.[In mid] 2018 the mother sent a message to the father threatening to kill herself – “after I take this pill to die n eventually all my pain n the suffering goes…my alarm is on n I’m going! I hope u rot for making me kill myself from all the emotional n physical abuse u did tome n my kids”. 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. The Court Child Expert was of the view that it would be very difficult for the mother to hide or keep that away from the children, as the children become very attuned to their parents and would know that the mother is worried about the father and this would put them in a very difficult position. It could be that the safety in the children’s house is compromised because their primary caregiver is no longer available to them.
250.The Court Child Expert was of the view that whilst supervised time provides some level of safety mechanism or reassurance for the children, this is potentially not the case for the caregiver.
251.Whilst I make no findings as to any medical diagnoses or conditions of the mother, I accept and find the children spending any time with the father would be stressful and traumatic for her. I accept and find that the children spending time with the father would negatively impact the mother’s ability to parent the children as stated by the Court Child Expert. I accept and find that there is a risk that the children[’s] safety could be compromised as a result.
(Footnotes omitted)
It follows that I am quite unable to accept the submission of the father that the primary conclusions “rest on speculation of possibilities rather than facts found on the balance of probabilities, that each cascading aetiological event constituting risk was likely (or certain) to occur” (father’s Summary of Argument filed 11 January 2023, paragraph 24).
In any event, the premise contained in that submission is quite wrong. In Fitzwater & Fitzwater (2019) 60 Fam LR 212, Austin J said at [138]–[139]:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before. Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
(Citation omitted)
Therefore, there needs to be no finding on a balance of probabilities that future harm is likely or certain to occur. This ground does not succeed.
Ground 9 is stated as “her Honour erred in principle in failing to give any or any adequate reasons for the conclusions reached in Ground 8”.
It was submitted that the reasons of the primary judge were inadequate because they did not “disclose with sufficient precision and reason the matters to which the Court has had regard and the weight afforded to each in a logical, consistent and transparent manner” (father’s Summary of Argument filed 11 January 2023, paragraph 27).
It is apparent from what I have written already that the primary judge’s path of reasoning can be readily identified and followed. It follows that the reasons are adequate and this ground must fail.
Ground 10 is stated as “her Honour’s discretionary decision to make an order such that the children spend no time with the father miscarried in that on the facts as determined by her Honour, that requirement of the orders comprised a disproportionate and manifestly unjust exercise of discretion”.
The principles to be applied on appeals from discretionary decisions are well known and have been set out in House v The King (1936) 55 CLR 499 and is as follows (504–505):
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
This ground challenges the no contact order, which is said to be, particularly “draconian” (father’s Summary of Argument filed 11 January 2023, paragraph 36) and “a manifestly unjust exercise of discretion” (father’s Summary of Argument filed 11 January 2023, paragraph 38). The question is actually whether the decision is unreasonable or plainly unjust. The father does not identify what he would suggest to be an appropriate order for contact. He had sought an order that the children spend each alternate weekend from Friday night until Sunday and Thursday overnight in the alternate week with him, together with block periods of time in school holidays.
In the light of all the evidence, the failure to make that order cannot be regarded in any way as unreasonable or plainly unjust and the father did not suggest so.
At [253], her Honour recorded that “neither of the parties nor the Independent Children’s Lawyer sought orders that there be any form of ‘recognition time’ between the children and the father and I will not make such orders in any event having regard to my earlier findings”. That does not leave many alternatives, if any.
If the father did not propose an alternative order to that made by the primary judge, it is then very difficult for him to complain now that such an order should have been considered. The no contact order must be seen in the light of all of the evidence, particularly the physical violence and the coercive and controlling behaviour to which the children have been exposed either directly or indirectly. The primary judge referred to the following without challenge:
238.The Court Child Expert gave clear and unequivocal evidence as to the risks to children having ongoing time with a perpetrator specifically of coercive and controlling behaviour. I accept and find that such risks to the children from ongoing time with the father include:-
•The children being used by the perpetrator to perpetuate the dynamic, for example undermining the other parent’s role in the children’s lives or withholding children. It would introduce a level of unpredictability, volatility and a lack of safety for the children.
•Being exposed to coercive controlling behaviour in the past also puts the children at greater risk of being re-traumatised were they to be exposed it again. This would be significantly dangerous to the children’s long term mental health. Potentially the children have experienced a period of recovery from trauma. It would be harmful for them to be exposed again to the harmful dynamic.
•This type of violence would indicate that the perpetrator behaves in a way which is dangerous, whether that be towards the mother and/or the children.
•The parenting deficits present in a parent who perpetrates coercive controlling violence as the perpetration of a sexual assault may raise the question of the perpetrator’s capacity to prioritise the safety of others. Importantly, this incapacity may have a flow on effect to the perpetrator’s ability to parent, as the capacity of a carer to be able to focus on the needs and safety of somebody else is paramount for children.
•There is a risk that the coercive controlling behaviour of the perpetrator could begin to form part of their parenting practice, even if this behaviour has not yet been exhibited towards the children. Thus the children would be significantly impacted by becoming the subject of the father’s behaviour.
•As children grow older they can be adversely affected through ongoing contact with a person who perpetrates family violence in a number of ways. This includes their exposure to threats or violence against the other parent and increased risk of exposure to neglectful or irresponsible parenting. From the mother’s account, [X] would intervene and try to protect her from harm from the father which could increase [X’s] risk of being harmed in the process. Whilst I have not made a finding that [X] has intervened in the past, I am satisfied and find that this is a possibility in the future.
239.The Court Child Expert was clear and unequivocal in her evidence that if the Court found there had been some form of coercive and controlling behaviour perpetrated by the father to the mother, then there should be no time between the children and the father, irrespective of whether or not the children witnessed the violence. I place significant weight on her expert opinion.
Whilst the primary judge was not obliged to accept that evidence, it was in fact accepted.
In the light of that finding, it is difficult to see how the outcome could be described as unreasonable or plainly wrong. I do not consider that it was.
This ground is not made out. It follows that the appeal will be dismissed.
COSTS
The mother and the Independent Children’s Lawyer have each sought an order that the father pay their costs of the appeal. He opposes that order and has referred to being in some financial difficulty recently, which, in particular, is being caused by him having to deal with two court cases, these proceedings and the criminal proceedings, at the same time.
Accepting that to be so, the appeal has been wholly unsuccessful and I consider it appropriate in all of the circumstances that a costs order should be made.
The father has also made submissions to the effect that I should reduce the amount sought because the costs were increased by the actions of the ODPP in raising difficulties about the production of the video. That is so, but those difficulties only arose because the father sought its production. He ultimately succeeded on having the video produced and viewed by his lawyers, the result of which was that the application to adduce it in evidence was abandoned. He, of course, knew what was on the video at all times having been a participant in what was recorded in it.
The fact that he embarked on the course of seeking its production and then having his lawyers abandon the application to adduce it into evidence establishes that the whole exercise was pointless.
I am not satisfied there should be any reduction in the amounts ordered for that reason.
Accordingly, the father is to pay the mother her costs of the appeal fixed in the sum of $26,024.39 and the costs of the Independent Children’s Lawyer fixed in the sum of $4,478, each order to be complied with within 28 days.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 18 December 2023
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