Paterson & Hamdy (No 2)
[2023] FedCFamC1A 209
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Paterson & Hamdy (No 2) [2023] FedCFamC1A 209
Appeal from: Paterson & Hamdy (No 3) [2023] FedCFamC1F 629 Appeal number: NAA 226 of 2023 File number: SYC 1229 of 2018 Judgment of: AUSTIN, HOGAN & KARI JJ Date of judgment: 30 November 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals final parenting orders providing for no contact between himself and the children – Where all but two grounds were abandoned – Where the father contends the orders imposing restraints and injunctions on him with respect to the youngest child are unreasonable or plainly unjust – Where the primary judge carefully and separately considered each of the s 60CC Family Law Act 1975 (Cth) factors – Where there is no merit in either ground of appeal – Appeal dismissed – Father to the pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 60CC, 68B, 114 Cases cited: Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Luck v University of Southern Queensland (2018) 265 FCR 304; [2018] FCAFC 102
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Number of paragraphs: 49 Date of hearing: 21 November 2023 Place: Heard in Sydney, delivered in Newcastle Counsel for the Appellant: Ms Edwards Solicitor for the Appellant: Coleman Greig Lawyers Counsel for the Respondent: Ms Conte-Mills Solicitor for the Respondent: Chidiac Legal ORDERS
NAA 226 of 2023
SYC 1229 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PATERSON
Appellant
AND: MS HAMDY
Respondent
ORDER MADE BY:
AUSTIN, HOGAN & KARI JJ
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Further Amended Notice of Appeal filed 20 November 2023 is dismissed.
2.The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the amount of $4,136.
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 Paterson & Hamdy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, HOGAN & KARI JJ:
INTRODUCTION
This is an appeal by the father from certain parenting orders made on 31 July 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 1) in relation to the parties’ 13 year old child. At the time those orders were made, they also included the parties’ eldest child, who has subsequently turned 18 and she accordingly now falls outside the jurisdiction of the court.
The suite of orders made by the primary judge included orders that the mother have sole parental responsibility for the children, together with a declaratory order that the children “have no contact, spend no time with and have no communications with the father”. Additionally, a range of injunctions were made which have the cumulative effect of preventing the father from any form of contact or communication with the children.
The father appealed the declaratory order together with the injunctions so far as they relate to the youngest child.
For the reasons that follow, the appeal is dismissed.
BACKGROUND
The parents’ relationship commenced in 2003.
The children of the relationship were born in 2005 and 2010.
While there was a dispute about when separation occurred (July 2015 on the mother’s case and July 2017 on the father’s case), the primary judge concluded she did not need to determine that dispute.
The father was incarcerated between 2015 and 2019 (serving 3 years and 9 months of a 6 year and 3 month sentence). The father commenced parenting proceedings some 15 months prior to his release in early 2018.
The children have lived solely with the mother since the father’s incarceration in 2015. They have not spent any time with the father, nor have they communicated with him since 2016.
The primary judge was satisfied the father had minimised the reason for his incarceration. The charges which the father were convicted of were of a serious criminal nature.
The trial before the primary judge was heard between 1–4 May 2023, with judgment delivered and final parenting orders made on 31 July 2023. The primary judge recorded (at [1]) that in the early stages of the trial, the father “sensibly decided not to seek orders” about the eldest child, given her age.
Against that backdrop:
(a)There was no dispute between the parties that the children ought to remain living with the mother.
(b)The dispute between the parents was whether the younger child spend any time with the father; the mother promoting orders for no time spending or communication, and the father promoting a three monthly incrementally increasing regime of time spending commencing on a supervised basis and building to unsupervised time spending each alternate weekend from the conclusion of school Friday until the commencement of school Monday.
The primary judge was satisfied that the children did not wish to have any relationship with the father. In addition, the primary judge was satisfied that the children “have a heightened sense of concern about the father” stalking them (at [153]).
The father’s case before the primary judge, which was unchanged in the appeal, is that the mother has “brain washed” the children, and there is no proper basis for their views and fears of him. The primary judge did not make any findings in that regard.
The mother additionally made allegations of family violence. The primary judge however was not asked to make any findings in relation to these allegations and did not do so.
Equally, the primary judge was not asked to make any finding that the father was an unacceptable risk of harm to the children. Again, no such finding was made.
Appropriately in coming to a decision about the parenting orders to be made, the primary judge carefully considered each of the factors identified in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) to make orders considered to be in the best interests of the children.
It is apparent from the reasons that the primary judge placed some considerable weight on the views expressed by the children (at [63]–[75], [85]–[90], [125], [132]–[133], [136], [151]–[152]).
Ultimately the primary judge was satisfied it was appropriate to make orders that provided for the children to live with the mother (Order 2), for the mother to have sole parental responsibility (Order 1) and for there to be no contact or communication between the children and the father (Order 3).
As earlier identified, injunctions were made (at Order 4) until the youngest child turns 18, restraining the father from:
(a)assaulting, molesting, harassing, denigrating or abusing the mother or either child;
(b) approaching or being within 200 metres of either child or the mother;
(c) being within 200 metres of any school that either child attends;
(d) being within 200 metres of the mother’s residence;
(e) being within 200 metres of the mother’s or child’s place of employment;
(f)contacting or responding to the children by any means whatsoever including but not limited to electronic means, social media or through any third party, other than as specifically provided for in these Orders;
(g)contacting the mother by any means other than through her legal representative; and
(h)permitting or allowing the children or either one of them to enter or remain in any premises which the father may occupy.
The primary judge also made a series of orders to facilitate the children’s overseas travel and the provision of passports (Orders 6-9).
Finally, orders were made in the following terms to explain the conclusion of the litigation to the children (Order 11):
11.That parties are restrained from discussing these proceedings with the children or showing the children any document relating to the proceedings save for the mother being permitted to tell the children that:
(a) the trial has ended;
(b) they will not spend time or communicate with the father;
(c) the father is not to approach or contact them or their mother; and
(d) their voices were heard.
THE APPEAL
The father filed a Notice of Appeal on 23 August 2023. That Notice of Appeal contained 14 separate grounds, with numerous sub grounds. An Amended Notice of Appeal was filed on 17 October 2023 and a Further Amended Notice of Appeal was filed 20 November 2023, the day before the hearing of the appeal. The father was given leave to rely on the latter during the hearing of the appeal.
By his Further Amended Notice of Appeal, the father abandoned all but four of the grounds of appeal that he initially propounded. It is therefore unnecessary to consider those grounds that were abandoned any further.
The four grounds advanced in the father’s Further Amended Notice of Appeal were in the following terms:
1.The learned judge erred by making a no contact order, Order 3, which was unreasonable or plainly unjust and was not a proper exercise of discretion.
…
12.The learned judge erred at paragraphs 151 to 154 in not giving any, or any adequate, reasons for the restraints/ injunctions imposed on the father.
13.The learned judge erred in making the restraints/injunctions which are not able to be met by the father given that the restraints are distance based and the father cannot know where the mother and children are at any particular time or location.
14.In the alternative to [13], the learned judge’s decision to impose restraints/injunctions based on the facts determined by her Honour was unreasonable or plainly unjust.
(As per the original)
During the hearing of the appeal, the father’s counsel further refined the grounds of appeal by:
(a)Abandoning Grounds 12 and 13; and
(b)Confining the complaint identified in Ground 1, to the primary judge’s failure to make any orders for communication, particularly in the form of “identity communication” in the form of letters, cards, and gifts.
We shall deal with the grounds of appeal in the order in which they were argued during the hearing of the appeal, firstly Ground 14 and secondly Ground 1.
However, as properly identified by the respondent during the hearing of the appeal, the two grounds ultimately advanced by the father go hand in hand. This is because:
(a)The effect of both orders is an outcome which sees the child having no relationship with the father; and
(b)Both grounds argue that the Orders 3 and 4 made by the primary judge were unreasonable or plainly unjust.
Before turning to the grounds of appeal, it is important to identify that this is an appeal from a discretionary judgment. Accordingly, the principles identified in House v The King (1936) 55 CLR 499 apply. There it was said (at [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.
As neatly summarised by the Full Court in Hedlund & Hedlund (2021) 64 Fam LR 458 (at [12]):
… the permissible grounds of appeal are those set out in House v The King (1936) 55 CLR 499 (“House”), which allow the challenge of such a judgment on a number of bases only. Those challenges may be brought due to an error of law affecting the judgment, the taking into account of an irrelevant consideration, the failure to take into account a relevant consideration, the mistaking of the material facts, and finally, the making of a decision that is manifestly unjust. The significance of the final of these grounds is that it does not require the identification of one of the other specific errors, but rather, error is inferred from the result. It must be remembered that this last ground is not made out by an appeal court coming to a different conclusion to the trial judge as to the way in which it would exercise the discretion. Rather, it requires the father to establish that the result could be no proper exercise of the discretion.
(Emphasis added).
Ground 14
Counsel for the father argued that the injunctions made by the court were manifestly unjust submitting that the evidence did not support the making of the injunctions.
We however do not accept this submission.
As identified earlier, the primary judge carefully and separately considered each of the s 60CC factors (at [47]–[138]). In addition, separate consideration in the reasons was given to the restraints/injunctions promoted by the mother (at [151]-[153]).
In particular, the primary judge identified at [151] that she would “make such orders to give the children and the mother re-assurance that the father is prevented” from approaching or contacting the mother or the children. The primary judge identified a need to do so with reference to the mother’s reports recorded in each the Specific Issues Report (at [151]), and the report of her treating psychologist (at [152]), which included reports that the children are “paranoid” about the father stalking them and knowing their whereabouts, and that they lock doors and windows and use furniture to block their bedroom doors.
Before us, the father’s counsel contended there was no proper foundation for the mother and/or the children to hold the fears they do about him, as he had not given the mother and/or the children any reason to fear him; particularly not so following his release from prison, citing two occasions where he has seen the mother in the community without incident.
While we do not accept as a proposition that two uneventful sightings in the community can ground the submission put, importantly, the primary judge identified the father’s denials that he had seen the children in the community or that he has stalked them and commented that even if she accepted that to be so, she was otherwise satisfied the “children have a heightened sense of concern about the father doing such things” (at [153]). Implicit in the primary’s judge’s reasoning was that it matters not whether the mother and the children’s fears are rationally held. Rather, the combination of the accepted reality that the mother and the children hold these views and the children’s strident views about not wanting a relationship with the father was sufficient for the primary judge to find that the children’s best interests would be served by the making of the injunctions.
Whilst it might have been of assistance for the primary judge to identify the source of power utilised for the making of the injunctions, we do not consider that a failure to do so is of any moment in all of the circumstances of this case. As identified in Luck v University of Southern Queensland (2018) 265 FCR 304 (at [14]):
… there is no requirement that an order refer expressly to the statutory source for it to be made, nor that a party needs to consent to the absence of such a reference. Whether the exercise of power is authorised is what matters. The authorities go so far as to recognise that a decision-maker may refer to an incorrect source of power, but if there is an available source of power, the exercise of power will be supported: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [124] (Heydon J); Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; 248 CLR 1 at [34] (French CJ, Hayne, Kiefel and Bell JJ); Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; 249 CLR 1 at [175] (Crennan and Kiefel JJ). If this is the case, the absence of a reference to the source of power cannot, of itself, indicate error.
We are satisfied that the power to make the injunctions is found either in s 68B or s 114(3) of the Act. Each of those sections provide the court with broad discretion to make injunctions either “as it considers appropriate for the welfare of the child” (s 68B), or where it is “just and convenient” to do so (s 114(3)). The primary judge’s reasons amply satisfy either source of power.
There is accordingly no merit to this complaint.
Ground 1
As earlier identified, the appellant’s complaint in relation to Order 3 is limited to the order preventing any communication between the children and the father, which when coupled with the injunctions restraining the father from contacting and communicating with the children at Order 4, act as a total prohibition of any form of relationship between the children and the father.
During the course of the appeal, the appellant’s complaint about Order 3 was illuminated to be a complaint that the primary judge did not consider the possibility of the father having “identity communication” with the child in the form of letters, cards and gifts.
The difficulty however with this submission is this was not ever an order that was promoted by the father, either in his Initiating Application, the Case Outline filed for the trial, the father’s proposed Minute of Orders, nor in final submissions by his counsel. Moreover, while the submission was put that the father had sought communication orders in his Initiating Application (presumably the Amended Initiating Application filed 21 April 2022, at page 63-78 of the Appeal Book), when the application is carefully considered, the only mention of communication between the father and the youngest child is not in the form of identity communication, but rather in the form of regular telephone communication between the father and the child (proposed Order 4 as contained in the Further Amended Notice of Appeal filed 20 November 2023). Likewise, the father’s proposed Minute of Order (at page 387-389 of the Appeal Book) is not in the form of identity communication but rather regular phone/facetime contact (proposed Order 10 as contained in the Further Amended Notice of Appeal filed 20 November 2023).
In addition, during the hearing of the appeal the father’s counsel acknowledged there had been no cross examination of the mother or the court child expert about any form of identity communication between the father and the child in the event that the court acceded to the orders sought by the mother that there be no contact or communication between the father and the children.
Therefore, the fatal difficulty for the father is that he is constrained in this appeal by the way in which his case was conducted before the primary judge. As identified by the High Court in Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”) the High Court at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
As we are not persuaded the “exceptional circumstances” referred to in Metwally exist in this case and because we consider the suggestion of having “identity communication” with the father is something that may have altered the nature of the evidence adduced by the parties at the trial (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418), there is no merit in this ground of appeal.
Disposition of the appeal
For all of the reasons that have been identified, there is no merit in the appeal and it shall be dismissed.
Costs
The respondent was represented in the appeal pursuant to a grant of legal aid. In accordance with her costs notice filed 13 November 2023, the quantum of the respondent’s costs in the appeal were $4,136 (being $5,456 less the costs of attending the stay application in the amount of $1,320). The respondent sought that these costs be met by the appellant in the event the appeal was dismissed.
The appellant agreed to meeting the respondent’s costs as quantified by her in the event of an unsuccessful appeal.
An order shall therefore be made that the appellant pay the respondent’s costs fixed in the amount of $4,136.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Hogan & Kari. Associate:
Dated: 30 November 2023
0
6
1