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
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…
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- AGLC
- Pachris & Tajir (No 3) [2023] FedCFamC1A 230
- Case
- [2023] FedCFamC1A 230
- Decision Date
CaseChat Overview and Summary
In this case, the appellant, Mr Pachris, appeals against the parenting orders made by the primary judge, Ms Aldridge, in favour of the respondent, Ms Tajir. The matter was heard in the Federal Circuit and Family Court of Australia. The primary judge made findings of sexual assault, violence, and coercive and controlling behaviour by the father against the mother, leading to orders that the children were to live with the mother and spend no time with the father. The father challenges these findings, arguing that some matters cast doubt on the mother’s evidence and that the primary judge erred in her assessment of credibility and reliability.
The court was required to determine whether the primary judge's findings were affected by impressions of credibility and demeanour, which would require the father to show that these findings were glaringly improbable or contrary to compelling inferences. The court found that while some demeanour-based findings were made, the majority were based on the content of the evidence, and the father had not shown that these findings were affected by such impressions or were glaringly improbable. The court also examined the evidence provided by the Family Report, which supported the primary judge's findings of risk.
The court reasoned that the path of reasoning was readily identifiable, and the findings of sexual assault, violence, and coercive and controlling behaviour were supported by the evidence. The court concluded that the outcome could not be described as unreasonable or plainly unjust. Therefore, the appeal was dismissed, and the father was ordered to pay the costs of the mother and the Independent Children’s Lawyer.
In summary, the court dismissed the appeal and upheld the primary judge's findings, ordering the appellant to pay the costs of the appeal and the Independent Children's Lawyer. The court found that the primary judge's reasoning was sound, and the findings were supported by the evidence, leading to the conclusion that the outcome was reasonable and just.
The court was required to determine whether the primary judge's findings were affected by impressions of credibility and demeanour, which would require the father to show that these findings were glaringly improbable or contrary to compelling inferences. The court found that while some demeanour-based findings were made, the majority were based on the content of the evidence, and the father had not shown that these findings were affected by such impressions or were glaringly improbable. The court also examined the evidence provided by the Family Report, which supported the primary judge's findings of risk.
The court reasoned that the path of reasoning was readily identifiable, and the findings of sexual assault, violence, and coercive and controlling behaviour were supported by the evidence. The court concluded that the outcome could not be described as unreasonable or plainly unjust. Therefore, the appeal was dismissed, and the father was ordered to pay the costs of the mother and the Independent Children’s Lawyer.
In summary, the court dismissed the appeal and upheld the primary judge's findings, ordering the appellant to pay the costs of the appeal and the Independent Children's Lawyer. The court found that the primary judge's reasoning was sound, and the findings were supported by the evidence, leading to the conclusion that the outcome was reasonable and just.
Orders
Orders of the court
NAA 232 of 2022
PAC 3726 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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)
Ratio Decidendi
Legal Principle Established
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