Philidor & Philidor
[2023] FedCFamC1A 192
•15 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Philidor & Philidor [2023] FedCFamC1A 192
Appeal from: Philidor & Philidor (No 2) [2023] FedCFamC1F 496 Appeal number: NAA 196 of 2023 File number: MLC 9942 of 2020 Judgment of: AUSTIN, SCHONELL & STRUM JJ Date of judgment: 15 November 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders providing for the father to spend supervised time with the child – Where leave to appeal is not required from interlocutory parenting orders – Apprehension of bias – Where a consideration of the transcript, the reasons and the submissions made do not show apprehension of bias on part of the primary judge – Where the mother contended that the primary judge should have recused himself from further hearing the matter because of credit findings made – Where no application for recusal was made to the primary judge – Where the mother contended that the primary judge failed to follow the suggested legislative pathway of Goode & Goode (2006) FLC 93-286 (“Goode”) in making the interim parenting orders – Where the mother’s submissions misstated the law – Where the primary judge did follow the pathway suggested by the Full Court in Goode – Where the mother challenged credit findings made by the primary judge – Where the submissions amount to a complaint at their highest – Inadequacy of reasons – Where the reasons are clearly adequate – No error established – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 69ZR, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) r 44
Cases cited: Antoun v R (2006) 224 ALR 51; [2006] HCA 2
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Chancellor & McCoy (2016) FLC 93-752; [2016] FamCAFC 256
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [2971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goode & Goode (2006) FLC 93-286; [2006] FamCAFC 1346
Jess & Jess (2021) FLC 94-055; [2021] FamCAFC 159
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Madden & Madden (2006) FLC 93-294; [2006] FamCA 1391
Northern Territory v Sangore (2019) 265 CLR 164; [2019] HCA 25
Philidor & Philidor [2023] FedCFamC1F 245
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Re Andrew (1996) FLC 92-692; [1996] FamCA 43
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SCVG v KLD (2014) FLC 93-582; [2014] FamCAFC 42
Number of paragraphs: 95 Date of hearing: 31 October 2023 Place: Melbourne Counsel for the Appellant: Ms Vohra SC Solicitor for the Appellant: Miltons Lawyers Counsel for the Respondent: Ms Devine Solicitor for the Respondent: Nevett Ford Lawyers The Independent Children's Lawyer: Did not participate ORDERS
NAA 196 of 2023
MLC 9942 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PHILIDOR
Appellant
AND: MR PHILIDOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, SCHONELL & STRUM JJ
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 2 October 2023 is dismissed.
2.The appellant mother pay the respondent father’s costs of and incidental to the appeal fixed in the sum of $20,000.
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 Philidor & Philidor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, SCHONELL & STRUM JJ:
By Amended Notice of Appeal filed 2 October 2023, the appellant mother appeals various interim parenting orders made by the primary judge in relation to the parties’ only child who is aged four years. At the time of the hearing before the primary judge, the child had not spent any time with the respondent father (“the father”) since the parties’ separation in May 2020, except in the presence of the Family Report writer.
The hearing took place over nine days and included extensive cross-examination of the parties, various witnesses, three Court appointed experts and the mother’s treating psychotherapist. Following an application by the father, which was supported by the Independent Children’s Lawyer (“the ICL”) and opposed by the mother, the primary judge made interim orders for the father to spend increasing periods of supervised time with the child. The matter was adjourned part heard to a future date with directions for the parties to file further evidence and the preparation of an updated Family Report.
The Amended Notice of Appeal contained five grounds which broadly contended apprehended bias, failure to follow the legislative pathway, unsafe and/or unsound findings, inadequacy of reasons and an omnibus ground that the primary judge misunderstood or misconstrued aspects of the mother’s case and/or evidence in the proceedings.
Consistent with authority, where an appeal contends allegations of apprehended bias, such ground must be dealt with first (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577). Irrespective of the correctness of the result, if the mother is successful on that ground a new trial must be ordered.
However, before proceeding to deal with the grounds, it is necessary to advert to the application for leave to appeal.
LEAVE TO APPEAL
The mother contended that leave is required to agitate the ground asserting apprehended bias. The mother cited, as authority for this proposition, the observations of the Full Court in Jess & Jess (2021) FLC 94-055 (“Jess”) to the following effect:
426.There would not appear to be much doubt on the authorities that a decision by a judge in civil proceedings to refuse an application for the judge to recuse himself or herself on account of reasonable apprehension of bias is interlocutory in nature, even though that may constitute a final determination by that judge that the facts and circumstances relied upon by the applicant do not establish the relevant apprehension. As is noted in Michael Wilson (at [78] and following) in general any interlocutory order which affects the final result can be challenged in an appeal against final judgment.
While not doubting the correctness of Jess, it has no application to this appeal. Leave is not required in appeals from interim parenting orders (reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)). Either way, no recusal application was ever made to the primary judge. Consequently, there was no decree or decision that could be the subject of leave (ss 26(1)(h) and 28(3)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
BACKGROUND
The parties commenced cohabitation in 2015, married in 2016 and separated on a final basis in 2020.
There is one child of the relationship who was born in 2019.
The mother gave evidence of an extensive history of family violence perpetrated by the father against her and the child prior to and after separation. The family violence was alleged to have included physical and verbal abuse as well as coercive and controlling behaviour.
For his part, the father largely denied the allegations of family violence save for four instances of unlawful assault to which he pled guilty (at [32]). The primary judge noted that these instances of family violence occurred at the time of separation and found there had been no subsequent family violence (at [34]). The father said the mother perpetrated family violence on him.
Following the breakdown of the relationship in 2020, the mother commenced proceedings in the Federal Circuit Court of Australia (as it then was) in September 2020 seeking both parenting and property orders.
The mother contended the father posed an unacceptable risk of harm to the child due to the extensive history of family violence, and her anxiety regarding that harm was likely to adversely impact upon her parenting capacity (at [9]). Consequently, she sought orders for sole parental responsibility and for the child to spend no time with the father (at [8]).
The father and the ICL sought interim orders for supervised time with the child for twenty weeks after which the matter would come back to the Court. The father’s position was that if the Court subsequently finds that the mother is unwilling or unable to promote and facilitate a meaningful relationship, then the child should live with him (at [10]–[12]). The application for interim orders was opposed by the mother (at [13]).
On 27 June 2023, the primary judge delivered his reasons for judgment and made interim orders for supervised time on a gradually increasing basis. In reaching that decision, his Honour found that the father had not “intentionally hurt [the child] or subjected him to abuse” (at 163]), and that he had not “subjected the mother or child to the level of family violence alleged” (at [187]).
GROUND 1
The [primary judge] demonstrated apprehended bias against the mother’s primary case in general, and as to any further hearing/s in the matter including pre-determining any bias application.
(As per the original) (Bold emphasis added)
It is apparent from the form of the ground and the mother’s Summary of Argument that Ground 1 comprises two parts. Firstly, “that the interventions and comments of the [primary judge] throughout the trial demonstrate that the [primary judge] misapprehended the task he was being asked to perform … and [had] lost the advantage of judicial detachment” (mother’s Summary of Argument filed 2 October 2023, paragraph 5) (citations omitted). Secondly, that having made credit findings adverse to the mother’s case, the primary judge should be recused from the further hearing.
The apprehended bias test requires the establishment of two limbs. Firstly, an identification of what it is said might lead the judge to decide the particular case other than on its merits and secondly, the articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”)).
Where it is contended that the apprehension of bias arises from conduct during the hearing, a close analysis of what is said, when it is said, its context and its frequency is necessary.
As the High Court reminds in Johnson v Johnson (2000) 201 CLR 488:
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modem litigation. At the trial level, modem judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
14. … No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.
(Footnotes omitted)
In analysing the submissions of the mother, we are mindful of what Ward JA said in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128:
232. … the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
Part I – Recusal based upon apprehended bias arising from the conduct of the hearing
The mother relied upon a number of examples, both from the transcript and the judgment, in support of the first limb of the test in Ebner. These are discussed below.
The mother submitted that the primary judge “approached the case on the basis that the child spending time with the father was a fait accompli, and indeed that the mother prosecuting such a claim was ‘a crying shame’ and ‘lunacy’” (mother’s Summary of Argument filed 2 October 2023, paragraph 9).
Language such as fait accompli is more apposite to a contention of actual bias than apprehended bias. While at times the oral submissions drifted into the country of actual bias, the mother’s senior counsel assured the Court that the appeal asserted only apprehended bias. Ignoring the hyperbole that infects some of the written argument, the “fait accompli” submission is without foundation.
The primary judge initially refused the father’s application for supervised time (see Philidor & Philidor [2023] FedCFamC1F 245 delivered by the primary judge on 29 March 2023). A later application resulted only in the making of interim orders. Such an approach is on one view the antithesis of pre-determination.
The primary judge clearly articulated in his reasons the issues for such determination at [27]. One was whether spending time with the father was in the child’s best interest. Under the heading “consideration”, the primary judge said that “[t]he central issue for determination in this proceeding is whether the Court ought to make orders permitting the father to spend time with the child” (at [142]) (emphasis added). The use of the word “whether” dispels instantly the notion of pre-determination.
At no time did the mother articulate the connection between “lunacy” or “crying shame” and the submission that the words were directed to the claim prosecuted by the mother. The articulation is not made because the connection is absent. A fair-minded observer hearing the words “crying shame” and the context in which they were said (approving financial consent orders) would see they were directed to the father’s counsel not the mother or her counsel, and that they do not demonstrate any level of prejudgment.
The mother referred to a statement by the primary judge that “it would be lunacy to adjourn this case for a period of time, then have [the Family Report writer] give evidence and then the court have to make finding one way or the other” (Transcript 16 March 2023, p.261 lines 40–43) as demonstrative of prejudgment. The submission was that the use of the word “lunacy” could only be perceived by an observer as indicative of the primary judge having closed his mind to the orders sought by the mother. The primary judge’s statement needs to be seen within the context of the discourse with counsel for the mother. Immediately before the statement is made, the primary judge said:
HIS HONOUR: Well, I’m not contemplating doing anything, but I’m just – or anything in particular, but what I’m saying is that there’s a real – there is an opportunity to make interim orders.
(Transcript 16 March 2023, p.261 lines 33–35)
The juxtaposition of that statement with the allegedly offending words dispels any notion that the primary judge had closed his mind. The primary judge later stated he had “not expressed any view about the merits of the case” (Transcript 16 March 2023, p.263 line 47)
There is nothing in the statements made by the primary judge relied upon by the mother in this example when seen in the context of what was said between counsel and the primary judge to give rise to an apprehension of bias.
The mother submitted that the language and tone used by the primary judge on the sixth day of the hearing was dismissive of submissions made by counsel, leading a fair-minded observer to conclude that the primary judge had closed his mind to the mother’s argument. Senior counsel for the mother agreed that we could form no conclusion about tone in the absence of listening to the recording of the transcript and we were not invited to do so. A reading of the complained passage does not support the submission. All the primary judge was doing was making clear to counsel for the mother that the foreshadowed interim application of the father would need to be dealt with at some time in the course of the hearing. No more can be drawn from the plain ordinary words of the primary judge.
The mother contended that statements made by the primary judge on the eighth day of the hearing further demonstrated that the primary judge had closed his mind to the mother’s case. Again, the mother’s submission is selective. When seen in the context of the interchange between the primary judge and counsel, a completely different construction is apparent. The passage is to the following effect:
HIS HONOUR: We’ve known that this was coming. I’ve given everyone warning. I’m really, frankly, disappointed that we’re here now doing this - - -
(Transcript 23 March 2023, p.728 lines 7–8)
What the primary judge is lamenting is not a reflection on the mother’s case but rather why, despite requesting same, he had not been provided with written submissions by any party. Only the unduly sensitive or suspicious could construe what the primary judge said as providing a basis for the submission. That, however, is not the test.
In the course of submissions, the primary judge asked the mother’s counsel whether it was necessary to make findings of fact given he was being asked to make an interlocutory determination. The mother seizes on this as demonstrating that the primary judge either misunderstood his task or that his mind was closed to any other alternative. No such conclusion is available. It is entirely proper for a judge to enquire of counsel about aspects of the case. As is apparent from the judgment and a matter the subject of a later ground, the primary judge proceeds to make, as sought by the mother’s counsel, findings of fact.
The mother submitted that the primary judge adopted a condescending and sarcastic tone to the mother’s counsel. This tone, so the submission went, was directed to the mother’s counsel as to whether it was necessary to call a witness to prove a document and an accusation that the mother’s counsel was “riffing” on two occasions (see Transcript 23 March 2023 p.747 line 39; Transcript 18 April 2023, p.837 line 44). It was also submitted that the primary judge asserted that the mother’s counsel “made an unfounded accusation of fraud when he had not”, that the mother’s counsel “had accused the father of directly causing a miscarriage when he had not” and that the mother’s counsel had breached r 44 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) (“the Conduct Rules”) by expressing a personal opinion where the Court had requested counsel to do so (mother’s Summary of Argument filed 2 October 2023, paragraph 16). The mother submitted that these statements would lead the fair-minded observer to conclude that the primary judge had closed his mind.
This Court recognises that there can be times when robust exchanges occur, and intemperate things are said. As Kirby J observed in Antoun v R (2006) 224 ALR 51:
27. So far as the first point is concerned, it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
(Footnote omitted)
An examination of the transcript does not reveal the primary judge’s tone to be condescending or sarcastic. It does reveal, however, at times a sense of frustration on the part of the primary judge and intemperate language by counsel for the mother. At times counsel for the mother addressed the Court inappropriately, referring to the primary judge as “sir” rather than “your Honour”. However, there is a difference between a robust exchange on the one hand and statements by a judge which give rise to an apprehension of bias on the other. Here, at all times, the statements fell into the robust category. Only the unduly sensitive could construe otherwise.
As to the accusation of fraud, counsel for the mother asked the father questions as follows:
[COUNSEL FOR THE MOTHER]: Well, it doesn’t contain the balance of the information. Who created that annexure?
[THE FATHER]: I did.
[COUNSEL FOR THE MOTHER]: You did?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: You’ve – how have you created it? You’ve cut and pasted somehow portions of emails?
[THE FATHER]: I’ve taken the top section of each email that addresses the switchboard issue.
[COUNSEL FOR THE MOTHER]: Yes, but how? You’ve used Photoshop or some other form of digital software to create that annexure. That’s not how it appears. You don’t just look at that and hit print and it cuts off the top email?
[THE FATHER]: No, that’s correct.
[COUNSEL FOR THE MOTHER]: That’s correct?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: Yes. So you’ve used Photoshop or some other form of - - -?
[THE FATHER]: I’ve taken two separate emails and put them into Word, I assume. And then got rid of the bottom half that wasn’t necessary to answer the allegation.
[COUNSEL FOR THE MOTHER]: And have you altered the date there?
[THE FATHER]: No.
(Transcript 21 March 2023, p.537 lines 25–44)
The primary judge asked counsel for the mother whether he was alleging the father had created a fraudulent document and later indicated that there were consequences for making such an assertion. In light of the way the questions were asked, it was a perfectly legitimate enquiry by the primary judge. Upon receiving a response from counsel, the matter was not taken any further nor does it feature in the reasons.
Likewise, questions about a miscarriage suffered by the mother when read in the context of the interchange between counsel for the mother and the primary judge take an entirely innocent hue (see Transcript 22 March 2023, p.641 line 37 to p.643 line 17). It is clear from reading the transcript that counsel and the primary judge had a different interpretation of the way the questions were asked. The primary judge quite properly raised the issue with counsel for the mother as to what actually was put and the inference sought to be drawn from the questions. Counsel for the mother quite properly denied he was making any suggestion that the alleged assault had caused the miscarriage and a reading of the transcript reveals the primary judge, having clarified it with counsel for the mother, indicated that the matter had been dealt with and the case would proceed. There is no foundation for an apprehension of bias.
The submission that counsel had been accused of breaching the Conduct Rules arose in circumstances where the Court had previously asked counsel to express an opinion. It was at its highest, an infelicitous comment by the primary judge. The primary judge was, however, on stronger ground in describing the mother’s written submissions as “florid”, particularly in circumstances where counsel for the mother submitted that “[t]here is little doubt that, in my respectful submission, that the type of regime, being contemplated on any view, will be, again my word, torturous” (Transcript 18 April 2023, p.857 lines 35–37)
The primary judge thereafter said:
[HIS HONOUR]: Listen, just a word of advice, tone it down
[COUNSEL FOR THE FATHER]: Well, it’s - - -
HIS HONOUR: You know, it’s not helpful because all it does is – you are suddenly reading this stuff and you hackles raise and you think this is florid. This is verbal prose. …
(Transcript 18 April 2023, p.857 lines 41–45)
There is force in the observation that such language by counsel for the mother was inappropriate and unhelpful. The passage the subject of complaint by the mother reveals that both counsel and the primary judge made infelicitous statements. Again, no one other than the unduly sensitive could conclude that it demonstrated prejudgment.
Counsel for the mother submitted that the primary judge trivialised the mother’s case and psychological condition, relying upon an extract from the transcript where the primary judge said, “[t]he mother is not suffering any mental illness now, but the – well, she has got post-traumatic stress disorder. That’s one” (Transcript 21 March 2023, p.516 lines 22–23)
When seen in the context of the conduct of the hearing and the careful and respectful way the primary judge dealt with the evidence of the mother’s mental health, the submission is absent foundation. As to the statement that the primary judge sought to constrain cross-examination by the mother’s counsel, the passage relied upon demonstrates proper trial management not pre-determination.
Counsel for the mother made a broad ranging submission that the primary judge proceeded upon a fundamental misunderstanding as to the case presented by the mother and sought to rely upon observations of the Full Court in Re Andrew (1996) FLC 92-692, contending that the primary judge erroneously believed there needed to be evidence to demonstrate the mother could not cope. The ambit of argument between the parties was well known from shortly after the commencement of the hearing; the father was seeking orders for supervised time and an adjournment of the proceedings while the mother sought final orders for no time. There is no foundation to the submission that the primary judge misunderstood the mother’s case. It was entirely within the primary judge’s discretion to make the interim determination that he did (see s 69ZR(1) of the Family Law Act 1975 (Cth) (“the Act”)). Doing so does not amount to pre-determination.
The mother further contended in the Summary of Argument that:
20.… Despite the requests by the mother’s counsel that the father clarify his position as to what should occur in the event the court determined the Re. Andrew issue as advanced by the mother, that clarification was never given and not asked of the father by the court. The only reasonable perception of that is that either his Honour had closed his mind to the mother’s case, or that he failed to consider it …
No aspect of this submission could give rise to pre-determination. Counsel asking something of an opponent imposes no obligation on the judge, nor does it, when it is not provided, establish prejudgment on the part of the decision maker.
Having read the transcript as a whole, the evidence, the reasons for judgment and considered the submissions of the mother, we are not satisfied that the rational, not unduly suspicious, hypothetical observer would find that any of the examples relied upon by the mother, either individually or cumulatively, “might lead a judge to decide a case other than on its legal and factual merits” (Ebner at [72]). The first limb of the test in Ebner is not established.
We are not satisfied that there is merit to the first part of Ground 1.
No application for recusal was ever made to the primary judge and presumably, in anticipation of a submission by the father, the mother advanced various submissions as to waiver. As we are not satisfied that the mother has established a basis for recusal, it is unnecessary for us to consider the arguments based on waiver.
Part II – Recusal based on credit findings
The second part of Ground 1 contends that, as a consequence of the making of adverse credit findings, the primary judge should be recused from further hearing the matter. The mother submitted that where there will be a further hearing which will likely involve further evidence from the mother and her parents, “[a] fair-minded observer, in the circumstances of this case would be of the view that his Honour would be disinclined to believe the mother, or either of her parent’s evidence and that she could not obtain a fair trial before his Honour” (mother’s Summary of Argument filed 2 October 2023, paragraph 21).
The mother submitted that the primary judge turned his mind to this consideration in circumstances where his Honour said in his reasons, “[t]he fact that I have made findings of fact and then made interim orders does not disqualify me from continuing to hear this matter and make final orders if the parties cannot agree on final orders” (at [14]).
Whilst the primary judge did not refer to the actual section, it is clear that his Honour had s 69ZR(3) of the Act in contemplation. The section provides as follows:
69ZRPower to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note:For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
The section makes plain that the mere fact of making findings at an interim hearing does not in and of itself preclude a judge from further hearing the matter.
The ground, however, suffers from a more fundamental difficulty. As the proceedings are part heard, any application for recusal must be made to the primary judge in the first instance not this Court.
Accordingly, we are satisfied that there is no merit to the second part of Ground 1.
GROUND 2
The [primary judge] failed to follow the legislative pathway as outlined in Goode & Goode [2010] FMCAFam 14 and made premature determination of the critical issue/s to be decided.
(As per the original) (Bold emphasis added)
The mother contended that the primary judge erred in failing to follow the “legislative pathway” in that he had to first consider the presumption of equal shared parental responsibility and whether it applied (s 61DA(3)) before considering the s 60CC factors. It was submitted the primary judge having first determined to make interim orders before considering “the legislative pathway and not as a result of same” failed to consider relevant matters (mother’s Summary of Argument filed 2 October 2023, paragraph 30)
The mother’s submission as to the legislative pathway misstates the law. In SCVG v KLD (2014) FLC 93-582, the Full Court observed as follows:
73.In our view [82] of Goode makes it clear that that case is not authority for the proposition that a judge must commence his or her deliberations about what interim or final parenting order is in a child’s best interests by reference to s 61DA and, if an order for equal shared parental responsibility is or will be made, to then sequentially address s 65DAA.
74.Self-evidently, the items referred to at paragraphs 82(a) – 82(c) in Goode do not find their source in the Act. Although the orderly disposition of parenting cases would require that these matters are addressed, they cannot form part of a “legislative pathway” as that term is used in that case. However, putting those factors aside, to the extent that in Goode a starting point is identified, paragraph 82(d) points to s 60CC. Although this discussion demonstrates that care is required in the application of the principles that emerge from Goode, what is significant is that in Goode the determination of what order would be in a child’s best interests commenced with the application of s 60CC. It follows that to the extent that the counsel for the father submitted that the primary judge erred because he first addressed s 60CC, he must fail.
While in Banks & Banks (2015) FLC 93-637, the Full Court observed:
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. …
…
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis in original)
The primary judge was determining the father’s application for interim orders for supervised time with the child. It was supported by the ICL and opposed by the mother. The father’s Minute of Order did not seek orders for parental responsibility and the primary judge was not asked to determine such issue. The primary judge evidently considered it would not be appropriate to apply the presumption of equal shared parental responsibility because he was only making interim orders and no party proposed any order allocating parental responsibility on an interim basis (s 61DA(3)).
Here the primary judge followed the pathway suggested by the Full Court in Goode & Goode (2006) FLC 93-286. His Honour identified the competing proposals of the parties (at [8]–[14], [17], [19] and [20]), identified the issues in dispute (at [22] and [27]), identified the pertinent agreed or contested facts (at [28]–[58]), considered the matters in s 60CC such as were relevant (at [128]–[129], [132]–[145], [153], [162]–[193] and [198]–[201]), and considered the question of risk and whether there were reasonable grounds to believe the presumption of equal shared parental responsibility should not be applied (at [162]–[163], [171]–[173], [187] and [194]–[197]).
Ground 2 is without merit.
GROUND 3
In rejecting the evidence of the mother and each of [the maternal grandfather and grandmother] (and/or preferring the evidence of the father), the [primary judge] relied upon findings perverse or inconsistent with the facts and unchallenged expert opinion, and failed to consider evidence wholly inconsistent with his credit findings inter alia:
(a) That the incident described at [43] of the Reasons for Judgment took place in a medical clinic, which it did not;
(b) That [the maternal grandfather and grandmother] were in any position to ‘allow’ or not allow the father to spend time with the child, or to ‘remove’ the mother or the child from the father’s presence and/or home;
(c) In finding that the mother deposed to sending certain sms messages in relation to the cat (at Reasons for Judgment [151]) when she did not, in fact, depose to same and where the mother was not cross-examined about it;
(d) In finding that there was no evidence that the father was physically menacing to the grandfather
(e) In finding that the mother ought to have raised allegations of particular incidents in advance of the father seeing Ms K;
(f)In finding that the mother’s unspecified ‘psychological condition’ was not an explanation for not raising allegations of abuse at earlier points in time.
(g) In failing to consider evidence demonstrating the father’s lack of credit.
(As per the original) (Bold emphasis added)
Ground 3, as framed, contended that the primary judge “relied upon findings perverse or inconsistent with the facts and unchallenged expert opinion”. Senior counsel for the mother when taken to the words of the ground agreed that “relied” must be interpreted as “made”. Notwithstanding the concession, it made the ground no more intelligible.
Senior counsel for the mother conceded she could not identify the actual finding of the primary judge that was inconsistent with the unchallenged expert evidence. Having properly made such concession, senior counsel for the mother sought leave to amend the ground to read that “the findings of the primary judge in accepting the evidence of the father in preference to that of the mother were perverse”. Leave was opposed by the father, and we declined to grant leave. We advised the parties we would give reasons for doing so in the judgment.
In Madden & Madden [2006] FamCA 1391, the Full Court observed in the context of an application to amend grounds of appeal as follows:
95.Neither counsel referred us to any relevant authorities applicable to the exercise of discretion to allow late amendment to a Notice of Appeal. It appears to us the principles espoused in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 are apposite, in particular the seven criteria set out by Kirby J at 167 and following.
96.… As observed by Kirby J, the granting of a late amendment is an indulgence to a party applying for it and it is necessary for the court to determine if the proposed amendment “is of considerable importance to the rights of a party, particularly where it provides a complete answer to a claim; that any fault is that of the party's legal representatives … or, possibly, the outcome of the application to the case of fresh legal minds who perceived an important new point; that cost orders or the imposition of other conditions could adequately rebalance the competing claims to justice”. Kirby J also noted the considerations which may be brought against a late application to amend including “the failure of a party to offer anything by way of explanation … the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions”.
97.An application for permission (as it is described in the Rules) to amend grounds of appeal after the commencement of the appeal hearing must be regarded as an extraordinary circumstance, and discretion would be exercised in favour of an applicant only in the most limited circumstances where failure to do so would be contrary to the interests of justice.
We are not satisfied for the reasons addressed below that the proposed ground had any merit and consequentially, no serious injustice was occasioned by refusing leave.
Ground 3 in either iteration challenged the credit finding made by the primary judge, which it is submitted were “unavailable to him and that he failed to consider, or erroneously applied aspects of the father’s evidence which were contrary to his finding/s as to credit” (mother’s Summary of Argument field 2 October 2023, paragraph 31).
The primary judge was presented with conflicting accounts of family violence allegedly perpetrated by the father on the mother and child. The primary judge recorded the following:
143.The mother made allegations against the father, which in submissions made on her behalf were grouped into the following categories:
(a) Actual assaults upon her and the child;
(b) Use of the threat of violence to control her;
(c) Abject cruelty of her;
(d) Abject cruelty of the child;
(e) Threats to harm her or the child;
(f) Threats to harm others;
(g) Harm of animals;
(h)Threats of self-harm or engaging in behaviours placing himself at risk;
(i) Neglectful acts with seeming indifference to the risk to the child;
(j) Other behaviours perhaps best described as ‘gaslighting’;
(k)Isolating the mother from family and friends; and
(l)Lying or misleading the Court as to the mother’s behaviours, statements, functioning or mental health.
(Footnotes omitted)
The more specific allegations of family violence allegedly perpetrated on her were recorded at [144(a)–(m)] and as perpetrated on the child at [145(a)–(g)]. The primary judge observed that the father pleaded guilty to various instances of family violence but otherwise denied the balance of the mother’s allegations (at [32]). The primary judge found some of the mother’s allegations were not supported by contemporaneous records and in relation to others preferred the father’s denials. The primary judge found evidence given by the mother and the maternal grandparents as unconvincing in relation to allegations that the father had deliberately hurt the child in their presence, whilst otherwise finding that he could not accept the evidence of the maternal grandparents as accurate. The primary judge specifically found:
171.… having seen the parties and the grandparents give evidence and weighing the probabilities of what is alleged to have occurred, I prefer the evidence of the father. He was subjected to vigorous cross examination by counsel for the mother and gave his evidence in a straightforward way, in the sense that he was not evasive and gave clear and cogent evidence. He did not attempt to denigrate the mother and the impression I got was that his actions in responding to the mother’s application was motivated by a genuine desire to be a father and parent.
To succeed on appeal, the mother must establish that the incontrovertible facts or the uncontested evidence demonstrates that the primary judge’s conclusions were erroneous or alternatively, that his determination was “glaringly improbable” or “contrary to compelling inferences” (Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”) at [28]–[29]). The mother must demonstrate that the findings made were not reasonably open (Edwards v Noble (1971) 125 CLR 296 (“Edwards v Noble”) at 304). It is not sufficient to merely point to an alternative finding (Chancellor & McCoy (2016) FLC 93-752 at [76]).
The mother sought to rely upon a series of assertions in support of the ground. They were:
(1)That the primary judge erred in finding that an incident of family violence described as “absolutely horrific” by the maternal grandfather occurred in a medical clinic and was not reported to medical staff (at [43]). It was conceded by the father that the primary judge was in error in recording the location of the incident. That error, however, does not detract from the efficacy of the conclusion reached by the primary judge. The significance of the event as the reasons reveal was not its location but rather, having described what occurred as “horrific”, the maternal grandfather did not, when the opportunity presented itself, report it to a doctor. Counsel for the father cross-examined the maternal grandfather about this incident as follows:
[COUNSEL FOR THE FATHER]: Right. And I put it to you that if that had happened, and you think that it’s horrific – or you were horrified, you should have said something to the doctor; shouldn’t you?
[THE MATERNAL GRANDFATHER]: Well, it didn’t occur to me, because I was just worried about the skin cancer.
[COUNSEL FOR THE FATHER]: So this is your opportunity to say to a doctor, something that you had just observed that was horrific, in your view, and you didn’t take that opportunity; did you?
[THE MATERNAL GRANDFATHER]: No.
(Transcript 17 March 2023, p.341 lines 7–12)
The error as to location was not material to the final determination. The finding was reasonably open and available on the evidence (Edwards v Noble).
(2)In a similar vein, the mother contended that the primary judge erroneously concluded that the maternal grandparents had not intervened to protect the child. The difficulty with the submission is that it is contrary to the primary judge’s finding which was the grandparents had intervened on occasions (at [163]). The mother also contended the primary judge erred in finding there was “no evidence that the father was physically menacing to the grandfather” (at [164]), citing in support various paragraphs of their evidence. The cited paragraphs refer to the father allegedly glaring, shouting, and shoving the maternal grandfather in the back and torso. Whilst such incidents may constitute an assault, they do not fall within the descriptor of physically menacing behaviour.
(3)The mother contended the primary judge explored “relevant, but relatively peripheral matters in some detail” (mother’s Summary of Argument filed 2 October 2023, paragraph 34). The proposition when stated demonstrates the inherent contradiction. One such incident involved text messages about a cat; the primary judge referring to the text messages stated:
151.… The implication of this is that the father was using the cat … as a form of pressure on the mother to maintain the relationship and to move in with him. The mother refers to text messages which do not accord with the described text communications alleged by her. …
The mother’s Summary of Argument contended that “no-where does the mother say that such a text message existed” (at paragraph 34). Some messages were annexed to the mother’s affidavit filed 15 February 2023 (Annexure MP-1). The submission that it was a peripheral matter quells any controversy as to its materiality.
(4)The mother alleged that the father had made threats early in the relationship that he would harm her if she ever left him. The primary judge did not accept the mother’s evidence that such threats had been made. The mother submitted that the primary judge inferred that if such threats had been made, then the mother would have left the relationship. In support of the inference, the submission referenced the evidence of the Family Report writer “explaining why victims of family violence act in such a way”. It was submitted that the primary judge did “not grapple with that evidence, and … the failure to do so (as a reasonable explanation) renders the finding unsound” (mother’s Summary of Argument filed 2 October 2023, paragraph 34). The proposition suffers from several deficiencies. The inference does not arise from the reasons. The mother’s evidence is inconsistent with the father’s denial which the primary judge accepted and is contrary to the primary judge’s finding that even if the father had said such things, the mother would not have believed them or taken them seriously.
(5)The mother contended that the primary judge erroneously rejected evidence of the mother because it had not been raised in earlier affidavits, was not raised prior to the assessment by the single expert Ms K or raised with various professionals, and his Honour did not consider the mother’s explanation as to why it was not included (mother’s Summary of Argument filed 2 October 2023, paragraph 36). The submission is reductive as to the fact finding exercise undertaken by the primary judge. The primary judge preferred the father’s evidence to that of the mother for a series of reasons including, as referred to earlier, the weighing of probabilities of events occurring, his assessment of the father’s demeanour in cross-examination and his conclusion that he gave clear cogent evidence in a straightforward way and was not evasive. Adopting such an approach to fact finding is not demonstrative of error. Appeal judges are at a “permanent position of disadvantage as against the trial judge” in assessing evidence and credibility (Fox & Percy at [77]).
(6)Otherwise, the mother contended that there was evidence given by the father that was inconsistent with the primary judge’s credit findings such that the findings in relation to the father’s credit are unsound. This included a failure by the primary judge to consider what was described by the mother as the father’s “history of misleading authorities including the police and the courts” (at [55]). The submission is absent foundation as the primary judge does consider the allegation at [172]. The fact the primary judge did not make a finding consistent with the case of the mother does not establish appellate error.
The examples cited by the mother amount at their highest to a complaint that the primary judge should have made alternative findings to those actually made. Absent establishing that the findings were glaringly improbable or inconsistent with the incontrovertible facts, the ground must fail.
We see no merit in Ground 3.
GROUND 4
The [primary judge] failed to consider and/or provided inadequate reasons, such that:
(a) It cannot be ascertained how he dealt with key aspects of the evidence, and in particular as to the credit of the parties; and
(b) It cannot be ascertained what findings he made as to the mother’s psychological condition, its cause, its duration, its impact upon her and its impact upon her parenting – either as stand alone issues, or as a result of any orders he contemplated making
(c) It cannot be ascertained how he weighed the benefit of the child having a relationship with the father as against any impact same may have upon the mother and by implication, the child.
(As per the original) (Bold emphasis added)
GROUND 5
The [primary judge] misunderstood or misconstrued:
(a) The mother’s case and Re Andrew argument generally, and by forming the view that an order for time needed to happen before he could assess same;
(b) That the mother referred to Dr D’s and [the Family Report writer’s] evidence ‘to a lesser extent’ than Ms C as to the diagnosis of PTSD and the impact that had upon her
(c) the evidence of Dr D inter alia in finding that “[t]here is no description of the which particular Cluster B traits” the father demonstrates, and where such finding was arguably used to disregard aspects of Dr D’s evidence;
(d) the evidence of Dr D to the extent his Honour formed the view that Dr D based his opinion on that of Ms C
(e) the nature and thus the relevance of the report of Ms K and by doing so, his discretion miscarried.
(As per the original) (Bold emphasis added)
Albeit that Grounds 4 and 5 were addressed separately in the Summary of Argument, the mother’s senior counsel conceded that they traversed the same issue and argued them as one. We propose to consider them in the same way.
Senior counsel also abandoned the part of Ground 4 that said the primary judge had “failed to consider” any one of the asserted matters and submitted that Ground 4 was limited solely to the adequacy of the primary judge’s reasons.
The extent and adequacy of reasons depends upon the circumstances of the case, but adequacy is met where this Court is able to ascertain the reasoning, and justice is seen to be done (Bennett and Bennett (1991) FLC 92-191). Further, the reasons must be such that the parties are able to understand the basis of the judge’s decision and which arguments have been accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
The mother submitted that the primary judge failed to consider or provide adequate reasons as to the mother’s actual diagnosis and if “PTSD, it’s cause” (sic), “whether her beliefs were ‘genuinely held’” and whether they impinged upon her “capacity as a parent”. The mother also contended that the primary judge did not carefully analyse the impact of supervised time on the mother’s care-giving capacity (mother’s Summary of Argument filed 2 October 2023, paragraph 44).
The primary judge was clearly cognisant of the mother’s mental health issues, identifying the dispute between the experts, with Ms E diagnosing the mother as suffering a “Generalised Anxiety Disorder with obsessive-compulsive traits and paranoid personality style” (Psychological Assessment Report dated 7 August 2021, paragraph 153) and Dr D diagnosing the mother as appearing to “suffer from Post Traumatic Stress Disorder arising out of her experiences in the relationship with the father” (Psychiatric Report dated 17 August 2021, paragraph 61). Irrespective of the diagnosis, the primary judge recorded that the mother required targeted psychological treatment to assist her in coming to terms with the child spending time with the father (at [82]). The primary judge recorded the evidence of the Family Report writer as follows:
108.In her second report she observed positive and appropriate interactions between the child and the father. She stated that after the observation session with the father and the child, the mother was able to manage her distress symptoms in the child's presence, and there had been no negative impact on the child spending time with the father. [The Family Report writer] believed that this demonstrated the mother was able to compartmentalise her reactions to a large extent in order to remain child focused. She also noted that the mother expressed feeling supported and integrated into her new community, which would likely be a psychologically protective factor.
…
112.She gave the clear recommendation that the mother engage with her GP for a complete assessment and treatment plan, which may include psychological treatment and medication. She noted that it would be best if supervised time did not commence until the mother had begun engaging in treatment, but expressed concern that this could lead to matters being delayed unnecessarily. She noted there should be a timeframe of several months before supervised time begins to allow the mother to seek treatment.
…
115.It was her recommendation that the father spend supervised time with the child in weekly one hour sessions, with 10 weeks at the contact centre, then a further 10 weeks in the father’s home. The father and the ICL have largely adopted these recommendations. This supervised time would be reportable to assist the Court in making a final determination. [The Family Report writer] gave evidence that she recommends this course of action regardless of whether the Court made a finding that family violence had occurred.
…
117.She gave clear recommendations that it was too early for there to be a final determination in this matter, and that there needed to be interim supervised time orders to “test” how the mother and child would cope. She acknowledged that she believed the mother would experience a rapid deterioration, but believed treatment would assist. She recommended that the mother’s treater provide evidence on any impact to her capacity to the Court. Similarly, she noted it was too early for orders relating to parental responsibility to be made on a final basis.
…
122.[The Family Report writer] gave evidence that the mother demonstrated a good degree of containment around the fears about the observation between the father and the child and that she did not outwardly demonstrate her anxieties and concerns around the child.
123.In response to Dr D’s evidence that developing a rapport between the mother and a new therapist may take months, [the Family Report writer] agreed, although she said that two months is extreme and that rapport can develop quickly, in fact as soon as the second session.
(Emphasis in original)
The primary judge clearly recognised that the central issue in determining whether to make interim orders was whether the child was at an unacceptable risk of harm and whether time with the father would cause the mother psychological harm and impact her parenting capacity (at [142]). There is no merit to any submission that the primary judge was not cognisant of the issues that he was required to determine.
The primary judge found:
191. The mother presented at trial as being in considerable distress particularly when there was a reference to the child spending any time with the father. Given the presentation and evidence of the mother at trial, I accept that any time between the mother and child will present her with difficulties in coping. However, each of Dr D and [the Family Report writer] were of the view that the mother could be assisted by directed therapeutic intervention so that her concerns may be contained within reasonable limits. This may not entirely eliminate her concerns, but as Dr D stated in his oral evidence: … “she will be anxious and – and – and distressed. I don’t think it’s going to be possible to stop it. But I guess it is possible in therapy to prevent the thinking that really, you know, it’s going to end in some sort of absolute tragedy. He did say that there was no guarantee that therapy would assist the mother but that it was possible. Dr D gave evidence of his own patients who have been entrenched in their views improving over time with therapy stating: “it may take quite a long time for a deeper acceptance … But, yes, it certainly …can happen”.
192. There was no recommendation from Dr D that supervised time should not commence because of the psychological condition of the mother or that she would be unable to cope with supervised time if she was to engage with directed psychological counselling.
(Emphasis in original) (Footnote omitted)
There is no challenge to these findings in the appeal. The primary judge also found that:
199. …
•… With the professional support as recommended by Dr D and [the Family Report writer] it is anticipated that the mother will have the capacity to facilitate a relationship between the father and child. It is also anticipated that the mother will receive support from her parents in assisting her through this interim period. The father has the capacity to parent and has support from his family and partner.
The primary judge found it was to the child’s benefit to have a relationship with his father and that the relationship can be managed by the orders made (at [200]). The primary judge also found that the child was not at risk of physical or psychological harm should he spend time with the father and that:
205.Those orders reflect the considered evidence of the Family Report Writer and the recommendations made by her to assist the mother in facilitating time between her and the father. It is in the best interests of the child that he has a relationship with his father. I accept the evidence of the Family Report Writer that a means of the mother being equipped to enable that relationship is to explore initially with her General Practitioner options including medication to deal with her anxiety, and properly directed treatment through an experienced psychologist to assist the mother. It is hoped that given the evidence given by [the Family Report writer] at trial that the mother has commenced accessing those treatment options.
The reasons disclose the primary judge carefully addressed the varying diagnoses of the mother, the impact time with the father would have on the mother, whether it was in the child’s best interests to have a relationship with the father and the capacity of the mother to continue as the child’s primary carer if time were ordered.
In support of the submission that the primary judge misunderstood or misconstrued the mother’s case, the mother relied on the following statement by the primary judge:
103. The mother submits that she suffers from PTSD, and that her condition will be exacerbated by any connection with the father, which in turn will adversely impact her ability to parent the child. She refers to the report prepared by Ms C, and to a lesser extent the reports of Dr D and [the Family Report writer].
The mother’s Summary of Argument focused on the words “to a lesser extent” and contended that the primary judge misunderstood the mother’s case in that she relied from the outset on both Dr D and Ms C’s evidence. It is a submission that fails to have proper regard to what the primary judge recorded in the first sentence of [103] and the proper consideration by the primary judge of all of the evidence including that of Dr D and the Family Report writer.
The mother submitted that the primary judge stated:
72. The difficulty with the psychiatric opinion provided by Dr D in relation to the father is that he gives no commentary on the Cluster B personality traits. There is no description of which particular Cluster B traits they are. Further, to the extent that the report of Dr D relies upon the opinion of Ms C, I do not place any store on that aspect of the opinion for the reasons set out below.
It was submitted that this was used by the primary judge to disregard aspects of Dr D’s evidence. Apart from the primary judge’s rejection of the evidence of Ms C, which rejection has not been the subject of any challenge in the appeal, the mother does not point to what aspect of Dr D’s evidence was, to adopt the words of the ground, disregarded by the primary judge.
The mother further contended error on the part of the primary judge in how he assessed the evidence of Ms K. The primary judge correctly identified the purpose of Ms K’s assessment and reached conclusions in accordance with her assessment.
There is no merit to Grounds 4 and 5.
CONCLUSION
For the above reasons the appeal will be dismissed.
COSTS
At the conclusion of the appeal, we sought submissions from the parties on the question of costs. The mother opposed an order for costs in the event that the appeal was dismissed.
The mother’s senior counsel submitted that the mother was not in receipt of an income and that her property settlement had been expended in the payment of legal fees.
The father sought costs in accordance with the Schedule of Costs filed 23 October 2023 if the appeal was dismissed. The schedule sought costs in the sum of $30,353.47. The father’s counsel submitted that he was employed as a schoolteacher, paid child support and that the mother’s asserted impecuniosity is not a basis for refusing to make a costs order (see Northern Territory v Sangore (2019) 265 CLR 164 at [27]).
Notwithstanding the terms of s 117(1) of the Act, we have found the appeal to be wholly unsuccessful and are satisfied that the circumstances justify the making of an order for costs.
Counsel for the father agreed that consistent with r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), we could fix costs in a specified sum irrespective of the costs sought and identified in the schedule. In those circumstances, the father’s counsel submitted that if we were to do so a proper sum would be $20,000. We are satisfied for the reasons given earlier that the circumstances justify the making of a costs order and that a sum of $20,000, notwithstanding the mother’s asserted impecuniosity, is a just amount. An order for costs fixed in the sum of $20,000 will be made.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Schonell & Strum. Associate:
Dated: 15 November 2023
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