Pickford & Pickford
[2024] FedCFamC1A 249
•20 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTIONPickford & Pickford [2024] FedCFamC1A 249
Appeal from: Pickford & Pickford (No 2) [2024] FedCFamC1F 500 Appeal number: NAA 213 of 2024 File number: SYC 3365 of 2019 Judgment of: MCCLELLAND DCJ, ALDRIDGE, AUSTIN, CAREW & WILLIAMS JJ Date of judgment: 20 December 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the primary judge improperly considered extraneous evidence which amounted to the denial of procedural fairness – Where findings made of the father’s perpetration of family violence were not legally and factually open to the primary judge – Where the primary judge fell into error by finding the father committed family violence against the mother by refusing to consent or submit to orders sought by her – Where the father was entitled to maintain an application for an injunction against the mother – Where the father’s objection to the mother’s referral of the child to counselling was not an act of family violence – Where there was independent evidence about the fragility of the mother’s mental health – Where it was not a deliberate controlling strategy of the father to raise and maintain the issue of the mother’s mental health at trial – Where the primary judge erred when making findings about the father’s influence of the children’s expressed views – Where the primary judge’s orders to engage an Independent Children’s Lawyer for a further 12 months were aspirational and unenforceable – Appeal allowed – Proceedings remitted for re-hearing in respect of the order which should be made under s 64B(2)(b) of the Family Law Act 1975 (Cth). Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pts VII, XIB, Divs 6, 13A, ss 4AB, 43, 60CA, 60CC, 60CF, 60CG, 61C, 61DA, 64B, 65AA, 65L, 68B, 68L
Family Law Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Amendment Act 2023 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Aytugrul v The King (2012) 247 CLR 170; [2012] HCA 15
B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Berry & Andrews (2022) 65 Fam LR 183; [2022] FedCFamC1A 120
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101
Edinger & Duy (2023) 68 Fam LR 55; [2023] FedCFamC1A 194
Electoral Commissioner of the Australian Electoral Commission v Laming (2024) 304 FCR 561; [2024] FCAFC 109
F v M [2021] EWFC 4
Family Violence Best Practice Principles (5th edition, 2009)
GK v PR [2021] EWFC 106
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Kearney & McMaster (2024) FLC 94-171; [2024] FedCFamC1A 2
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200
Lamereaux & Noirnot (2008) FLC 93-364; [2008] FamCAFC 22
Leventis & Leventis (2024) FLC 94-204; [2024] FedCFamC1A 141
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
M v M (1988) 166 CLR 69; [1988] HCA 68
McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69
Newlands & Newlands (2007) 37 Fam LR 103; [2007] FamCA 168
Olivier & Olivier [2020] FamCA 639
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Ramzi & Moussa [2022] FedCFamC2F 1473
Raymond & Raymond (2024) FLC 94-180; [2024] FedCFamC1A 45
RCB v Forrest (2012) 247 CLR 304; [2012] HCA 47
Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448
Re JK (A Child) (Domestic Abuse: Finding of Fact Hearing) [2021] EWHC 1367 (Fam)
Re W (Children) [2012] EWCA Civ 528
Robertson & Sento [2009] FamCAFC 49
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Shell & Armel [2022] FedCFamC1A 83
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
U v U (2002) 211 CLR 238; [2002] HCA 36
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444; [2010] HCA 9
Number of paragraphs: 153 Date of hearing: 22 November 2024 Place: Heard in Sydney, delivered in Newcastle Counsel for the Appellant: Mr Kearney SC and Ms Reid Solicitor for the Appellant: ATW Family Lawyers Counsel for the Respondent: Mr Roche SC and Ms Hall Solicitor for the Respondent: Long Saad Woodbridge Lawyers The Independent Children’s Lawyer: Did not participate ORDERS
NAA 213 of 2024
SYC 3365 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PICKFORD
Appellant
AND: MS PICKFORD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE, AUSTIN, CAREW & WILLIAMS JJ
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 32(d) and 33 made on 26 July 2024 are set aside.
3.Orders 6, 7, 8, 9 and 10 made on 26 July 2024 are set aside as from the next return date of the proceedings within the original jurisdiction of the Federal Circuit and Family Court of Australia (Division 1).
4.The proceedings under Pt VII of the Family Law Act 1975 (Cth) are remitted to the Federal Circuit and Family Court of Australia (Division 1) for re-hearing in respect of the orders which should be made under s 64B(2)(b) of the Act.
5.The appellant’s application for costs is dismissed.
6.The parties’ applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are dismissed.
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 Pickford & Pickford has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
I have had the benefit of considering the reasons for judgment of Aldridge and Carew JJ, and the separate judgment of Austin and Williams JJ. I agree with their Honours’ conclusion that the appeal must be allowed, and with the orders proposed by Austin and Williams JJ.
I also agree with each of their Honours’ respective judgments that, in considering whether a party has been the subject of coercive or controlling behaviour, the intention of the alleged perpetrator will very often be a decisive factor but that it is not an essential element to the making of such a finding.
I otherwise agree with the judgment of Aldridge and Carew JJ in so far as their Honours take a more expansive view of the concept of family violence and, in particular that the interpretation of the definition of family violence should not be limited to only two types of behaviour, namely, that which coerces or controls and that which causes fear.
In circumstances where this appeal must be remitted to a trial judge for rehearing, it is my view that it is neither necessary nor appropriate for the Full Court to determine whether any specific incident or behaviour should or should not, in itself, be classified as coercive or controlling. This is because it may well provide relevant context to the task of the trial judge in assessing the alleged perpetrator’s pattern of conduct.
The key to determining whether a person has been the subject of such behaviours is an appreciation of a pattern or a series of acts, the impact of which will usually be both intersecting and cumulative, rather than incident specific.
Given the valuable assistance that the Court has received from senior counsel in respect to the issue of family violence, I add further comment on these issues.
BACKGROUND FACTS AND PRELIMINARY REFLECTION ON THE COURSE OF THE FIRST INSTANCE PROCEEDINGS
The contextual background of this matter is set out in the decision of Austin and Williams JJ and will not here be repeated. I agree it is most regrettable that this matter has taken so long to resolve, and that it required a hearing for a duration of 11 days for issues to be ventilated and considered. It is important for parties to maintain a sense of perspective and proportionality. I voice no criticism of the primary judge, however, for permitting the respondent to articulate concerns that she has been exposed to family violence.
The obligation of the primary judge to consider the respondent’s allegations is made clear in s 43(1)(ca) of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides that “[a] court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to … the need to ensure protection from family violence” (emphasis added).
Additionally, s 60CG(1)(b) of the Act provides that “the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order … does not expose a person to an unacceptable risk of family violence”.
It is also important to appreciate that family violence is relevant not only to the assessment of future risk, but it is also very much a best interests consideration that may influence the making of an order for a child to spend a particular amount of time with a parent. This was made clear in the legislation that was applicable at the time of the hearing of this matter, with s 60CC(3)(j) of the Act requiring that, in considering those matters relevant to determining the child’s best interests, the Court “must” consider “any family violence involving the child or a member of the child’s family”.
Similar principles are reflected in decisions of superior courts in comparable jurisdictions. In terms of impact upon the child’s carer, in Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 (“Re H-N”), the England and Wales Court of Appeal stated, at [52]:
… The fact that there may in the future be no longer any risk of assault, because an injunction has been granted, or that the opportunity for inter-marital or inter-partnership rape may no longer arise, does not mean that a pattern of coercive or controlling behaviour of that nature, adopted by one partner towards another, where this is proved, will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family.
(Emphasis added)
In terms of the impact on children, in Re W (Children) [2012] EWCA Civ 528, the England and Wales Court of Appeal explained at [15] that:
… the court must only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact. Also in every case, the court has to consider the conduct of both parents towards each other and towards the child, and in particular the effect of the domestic violence on the parent and child, the motivation of the parent seeking contact, the likely behaviour of that parent during contact and the effect on the child, his capacity to appreciate the effect of past violence and the potential for future violence on the other parent and child, and his attitude to his past violent conduct and capacity to change and behave appropriately.
(Emphasis added)
The principles adumbrated in those cases are now reflected in the Act in its current form, post-May 2024 amendments, in s 60CC(2)(a) and, by reference to that paragraph, s 60CC(2A).
GROUND 1
The appellant contends that the primary judge was in error in concluding at [33] that “an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour” (appellant’s Summary of Argument filed 25 October 2024, paragraph 11). In my view, this ground of appeal fails for the following reasons.
Section 4AB(1) of the Act defines family violence as meaning “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful” (emphasis added). Examples of behaviour that may constitute family violence are set out in s 4AB(2) of the Act. Examples of situations that may constitute a child being exposed to family violence are set out in s 4AB(4) of the Act. The focus of the definition is on the effect of the behaviour rather than the intention of the perpetrator of the behaviour.
To introduce the notion of intention into the definition of family violence, by reference to case law or otherwise, would be to introduce an unnecessary and unwarranted atextual constraint on the ability of a victim of family violence to establish that they and/or their children have been adversely impacted by coercive and controlling behaviour.
Had the legislature intended the concept of intention to be an element of coercive or controlling behaviour, it would have been specifically stated, as is the case in respect to, for instance, s 4AB(2)(e), which refers to “intentionally damaging or destroying property”, or s 4AB(2)(f), which refers to “intentionally causing death or injury to an animal”. Similarly, s 4AB(2)(j) necessarily incorporates the notion of intention by referring to “unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty”.
Modern principles of statutory interpretation require the meaning of words to be construed in the context of the legislation as a whole and its statutory purpose (Electoral Commissioner of the Australian Electoral Commission v Laming (2024) 304 FCR 561 at [59]–[61] (Perry J with whom Logan and Meagher JJ agreed on this issue)). To incorporate the notion of intent as a necessary element into the definition of family violence in s 4AB would be contrary to the purpose and intention of the Act, which is both protective (ss 43(1)(ca), 60CF and 60CG) and educative (s 4AB(2) and s 4AB(4)). To require victims of family violence to prove intention as an additional element of coercive or controlling conduct would be contrary to that statutory purpose. This is in the context where it is frequently the case that a victim of family violence will be unrepresented and potentially suffering the impact of having been subjected to family violence.
It is necessarily the case that a party, and their children, who have been the subject of family violence, including coercive and controlling conduct, will be as much affected by that behaviour irrespective of whether the perpetrator intended that effect. This includes, for instance, where aggressive physical and non-physical behaviour that is not intended to subjugate or corrode the victim’s autonomy may be associated with other factors such as the perpetrator’s mental health and complex trauma. It also includes a situation where a perpetrator denies such an intention existed and instead asserts that they are behaving in a manner consistent with their cultural or religious norms.
That is not to say that considering the objective, purpose, design, aim or intention (however described) will be irrelevant in considering whether a person has been the victim of family violence. In that respect, senior counsel for the appellant referred to the helpful guidance provided in the decision of Hayden J in F v M [2021] EWFC 4 (“F v M”) where his Honour stated at [4]:
… The nature of the allegations included in support of the application can succinctly and accurately be summarised as involving complaints of ‘coercive and controlling behaviour’ on F’s part. In the Family Court, that expression is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation …
The analysis of Hayden J has subsequently been adopted and applied by the England and Wales Court of Appeal in Re H-N at [30]. The Court of Appeal in that case, however, specifically cautioned family court judges against “being drawn into an analysis of factual evidence based on criminal law principles and concepts” (at [65]). This includes, in my view, introducing the notion of mens rea or intention, which is more apt in criminal or civil penalty legislation, but not in the context of the Act which is, as I have mentioned, both protective and educative.
For these reasons, it is my view that the primary judge was not in error in stating that intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour for the purpose of determining whether that behaviour falls within the definition of family violence set out in s 4AB of the Act. However, for reasons which I subsequently explain, I find myself in the regrettable position of disagreeing with the experienced and learned primary judge to the extent that he found the existence of coercive or controlling behaviour could be found simply on the basis of the alleged victim’s perception of the conduct.
GROUNDS 2, 3, 4 AND 5
While perhaps ambiguous, I have construed Ground 2 as containing two elements. The first part contends that “the primary judge erred in finding that the appellant had engaged in coercive and controlling conduct” and, in the second part, it is contended that the primary judge was in error in respect to the following specific findings:
2.1the appellant had opposed to the respondent’s requests for partial property settlement and that opposition to such requests did, and could in any event, amount to such conduct;
2.2 in adhering to Orders in relation to the payment of school fees, and in acting in a manner agreed to by the respondent, the appellant engaged in such conduct;
2.3 the appellant’s application for an injunction in relation to [the respondent’s friend] was controlling;
2.4 the appellant had unreasonably maintained an application for equal time and that such matter was relevant to, or constituted, such conduct and the maintenance by the appellant of the proceedings simpliciter also did so;
2.5the position adopted by the appellant in relation to certain proposed medical treatment for [the elder child] amounted to such conduct; and,
2.6 the position adopted by the appellant in relation to mental health concerns related to the respondent amounted to such conduct.
It was, in my view, reasonably open to the primary judge to find that the appellant engaged in coercive or controlling behaviour in respect to surveilling the respondent and the family home from late 2019, using a company called U Company (at [78]; respondent’s Summary of Argument, paragraph 24(a)). Indeed, there has been no challenge to that finding which is the basis of Order 16 of the orders of the primary judge. That order, which has not been challenged, imposes a restraint upon the appellant from engaging in surveillance, either on his own part or by way of proxy, of the respondent, the children or her residence.
It is generally accepted that, depending upon context, surveillance or monitoring may amount to coercive and controlling behaviour (F v M at [60]; in the Australian context, Ramzi & Moussa [2022] FedCFamC2F 1473; and see also the Family Violence Best Practice Principles (5th edition, 2009) as included in the appellant’s Amended List of Authorities).
In this case, it was reasonably open to the primary judge to find that the monitoring or surveillance of the respondent by a company retained by the appellant’s parents, in circumstances where the appellant was aware of the surveillance, amounted to coercive and controlling conduct. This was particularly the case where the primary judge noted (at [173]) that, when asked whether he would commence further investigations or surveillance, in the event that the appellant was alerted to further contact between the mother’s friend, Mr B, and the children, the father stated that he would do “whatever I need to”.
During the course of the appeal, senior counsel for the respondent, appropriately, in my view, noted the impact upon the respondent finding out she had been the subject of surveillance referring to the “feeling of being under constant surveillance, even when the evidence suggests she was no longer, and the feeling of uncertainty, and the isolating effect that that had on her in terms of her relationships with her friends” (Transcript 22 November 2024, p.63 lines 25–27).
I also respectfully agree with the submission of senior counsel for the respondent that, that particular finding on the part of the primary judge, in itself, justified his finding that the presumption of equal shared parental responsibility set out in the then applicable s 61DA(2) of the Act had been displaced.
The other findings referred to in the balance of Grounds 2, 3, 4 and 5 are more problematic. This is as a result of the primary judge appearing to find that the existence of coercive or controlling conduct on the part of the appellant could be based only upon the mother’s “experience and perception” of the conduct rather than undertaking an evaluation of the conduct and the context in which it occurred with a view to determining whether, even as a pattern, it could reasonably be regarded as coercive or controlling.
That is not to say that the mother’s experience or perspective of the appellant’s conduct is irrelevant. Clearly, it may be. Indeed, as noted by Hayden J in F v M “[a]busive behaviour of this kind will often be tailored to the individual” (at [61]).
Fundamentally, determining whether behaviour constitutes coercive or controlling conduct requires deeper evaluation than simply a party’s experience or perception – as relevant as that may be. In that context, I commend and respectfully adopt the following analysis provided by Gill J in Olivier & Olivier [2020] FamCA 639 where his Honour observed at [51]–[52]:
It should be accepted that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control. However, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour is ambiguous and may bear an innocuous explanation, be sufficient to allow a characterisation of coercion or control.
By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person. The mere fact of disagreement or criticism does not automatically equate to family violence.
(Emphasis added)
This point is also well made by the England and Wales Court of Appeal in Re H-N, where the Court stated at [32]:
It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour. I would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61):
“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.”
(Emphasis in original)
In this appeal, the respondent argued that once there was a basis for the finding of coercive and controlling conduct on the part of the appellant, any misdirection on the part of the primary judge as to what did or did not constitute coercive or controlling conduct did not impact the outcome of the proceedings. I accept that is the case in respect to the finding by the primary judge that the presumption set out in s 61DA of the Act had been displaced. However, in circumstances where the primary judge’s findings in respect to coercive and controlling conduct impacted the spend time orders that he made, it would be unsafe for those orders to remain in place.
In that respect, the primary judge made it clear that he assessed the best interest considerations set out in s 60CC(3) through the “lens” of coercive and controlling violence (at [34]). It was, in those circumstances, incumbent upon the learned primary judge to evaluate the form, intensity, and context of the behaviour itself, which he found to constitute coercive or controlling conduct, as well as the impact upon the respondent.
As that task will now fall to another trial judge, it is in my view, neither necessary nor appropriate for the Full Court to determine whether a particular incident or event could or could not be relevant to determining whether the respondent has been the subject of a pattern of coercive or controlling conduct. In undertaking that task, it is the role of the trial judge to “consider the totality of the evidence in the round” in order to assess how the individual pieces of evidence play into the narrative of coercive and controlling behaviour: GK v PR [2021] EWFC 106 at [40] and [45]. There is a risk that the Full Court’s reflection on specific incidents could impede rather than assist the trial judge in undertaking that important fact finding task.
APPROACH TO FACT FINDING
In their thoughtful judgment, Aldridge and Carew JJ have set out a useful guide to assist trial judges to undertake what can be the complex task of evaluating allegations of coercive and controlling conduct. I respectfully commend that guide as being of potential benefit to trial judges.
Unsurprisingly, the task of evaluating evidence relating to allegations of coercive and controlling behaviour has been considered in other comparable jurisdictions. In Re JK (A Child) (Domestic Abuse: Finding of Fact Hearing) [2021] EWHC 1367 (Fam), Pool J considered the question as to how the Court can keep hearings within proportionate and manageable limits without filtering out what might be highly relevant evidence of coercion or control. His Honour suggested at [27] that, in addition to witness evidence, it may be helpful for the trial judge to have concise statements on behalf of each party setting out:
(a)a summary of the nature of the relationship;
(b)a list of the forms of domestic abuse that the evidence is said to establish;
(c)a list of key specific incidents said to be probative of a pattern of coercion and/or control;
(d)a list of any other specific incidents so serious that they justify determination irrespective of any alleged pattern of coercive and/or controlling behaviour;
(e)a reply indicating which specific allegations listed at (d) were admitted or disputed.
The task of the trial judge, once relevant evidence is before the Court, was explained by Hayden J in F v M at [108] as being one of resolving those issues of fact by evaluating the separate strands of evidence and then considering them in the context of the whole. His Honour noted that, in the context of considering allegations of coercive or controlling behaviour “[s]ome features of the evidence will weigh more heavily than others and evidence which may not be significant, in isolation, may gain greater relevance when placed in the context of the wider evidential canvas”. Justice Hayden also suggested a useful framework in which to assess the characteristics of coercive or controlling behaviour, as follows:
Coercive Behaviour:
i. a pattern of acts;
ii. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
iii. the objective of these acts is to harm, punish or frighten the victim.
Controlling Behaviour:
i. a pattern of acts;
ii. designed to make a person subordinate and/or dependent;
iii. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.
(Emphasis in original)
The approach taken in those England and Wales authorities is one that may also commend itself to trial judges and case management judges.
CONCLUSION AND ORDERS
Accordingly, for these reasons and for the reasons provided by Austin and Williams JJ in respect to Ground 7, Orders 6, 7, 8, 9, 10, 32(d) and 33 made on 26 July 2024 must be set aside and the matter remitted for rehearing.
ALDRIDGE & CAREW JJ:
We have had the advantage of reading the draft reasons of Austin and Williams JJ and agree that the appeal must be allowed and with the orders proposed. We largely agree with the reasons of Austin and Williams JJ, save in relation to their Honours’ interpretation of the definition of family violence which seeks to limit family violence to only two types of behaviour, namely, that which coerces or controls and that which causes fear.
The definition of family violence is set out in s 4AB of the Act and relevantly provides as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty
(Emphasis in original)
The section is both remedial and protective and as such should not be read down by artificial limitations (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
The definition identifies certain behaviour that may fall within the definition, namely, violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes the family member to be fearful. Violent behaviour or threatening behaviour are stand-alone behaviours that fall within the definition of family violence. Such behaviours may coerce or control or cause fear, but it is not essential. It might be, for instance, that a female punches her male partner but the punch neither coerces nor controls nor causes the male to be fearful. The behaviour may nevertheless be an act of family violence.
In their submissions on the appeal, the parties spent a great deal of time dealing with the question of intention and the role it plays, if any, in the determination of whether there is behaviour “that coerces or controls”. However, this argument is ultimately about a straw man because intention is not an element of coercive or controlling behaviour and a focus on it is apt to divert a court from focusing on the real issue.
In fulfilling the onus of proving an allegation of family violence that involves behaviour that coerces or controls, it is not necessary to prove the alleged perpetrator intended the behaviour to be so. That does not mean that intention is irrelevant, but it is not dispositive. A person who engages in such behaviour may be completely oblivious to the impact of their behaviour or they may believe that they are acting in such a way to protect the other family member. Notwithstanding that subjective belief, the behaviour may nevertheless coerce or control the other family member and fall within the definition of family violence.
The focus of the fact finding process is on the behaviour and the impact of the behaviour. It is the behaviour that coerces or controls. It requires action and reaction. A single act is unlikely to be coercive or controlling but it may be. Behaviour that coerces or controls may be innocuous, subtle, capable of different interpretations, complex, undermining, etc. Such behaviour may create impossible expectations for the other family member. It may be transactional and involve punishments for perceived failures. The impact of the behaviour can be insidious. A confident and happy family member may lose their confidence, their self-esteem, question their sanity, shun their family and friends, become depressed, irritable, inefficient, and unhappy. There may be times when they strike out either verbally or physically.
When determining an allegation that a person has engaged in behaviour that coerces or controls a family member, a trial judge will undertake a forensic examination of all relevant evidence to:
(a)identify the behaviour about which complaint is made;
(b)identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;
(c)identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient);
(d)make all relevant factual findings; and
(e)explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.
Once such behaviour has been identified it is then a question of what weight is to be given to it and any impact on the orders under consideration.
The definition of family violence is necessarily broad and any interpretation that may be perceived to, or actually, create unnecessary hurdles to an alleged victim proving an allegation of family violence should be avoided.
Whilst the key feature of coercion or control is that a person is induced (many other words are also apt here) to do as the other wishes, the statutory focus is simply on behaviour that coerces or controls and not the intention of the perpetrator.
So understood, the finding that there is coercive or controlling behaviour is an evaluative one, having regard to all of the circumstances and all of the evidence before the court. Whilst patterns of behaviour may be particularly illuminative, they are not essential. Importantly, for present purposes, the trial judge does not need to spend time and trouble searching for an inference that there is an intention to coerce or control. It is sufficient simply to apply the words of the statute without embellishment and assess whether there is behaviour that coerces or controls.
It must be recognised that, particularly in parenting matters, parents will often disagree. Matters may be seen as proper or as coercive or controlling depending on the circumstances. For example, a proposal that a child be seen by a particular doctor, that changeovers take place in a particular manner or that a certain person not be alone with the children are all capable of being seen as both reasonable and proper parenting proposals or may also be examples of coercive or controlling behaviour.
AUSTIN & WILLIAMS JJ:
This appeal is brought by the father from parenting orders made between the parties in respect of their two children under Pt VII of the Act by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 26 July 2024.
The appeal principally concerns the findings made about the occurrence of family violence. Given the prevalence of allegations and denials of family violence in family law litigation, this appeal is an opportunity to clarify the principles which govern findings in respect thereof, at least in parenting proceedings brought under Pt VII of the Act.
For the reasons which follow, the appeal must be allowed.
BACKGROUND
The parties were married in 2014 but disputed for how long they cohabited beforehand. The primary judge “proceed[ed] on the basis” their cohabitation started in early 2014 (at [230]).
The parties’ two children were born in 2015 and 2017 and are now aged nine and seven years respectively.
The parties separated in late 2018, after which the mother and children remained in occupation of the former family home (at [246]).
Proceedings were commenced by the mother in 2019. Thereafter, numerous sets of interim parenting orders were made in July 2019, May 2020, August 2020, December 2020, and June 2021. The last of those orders in June 2021 were made with the parties’ consent and required the children to spend substantial time with the father, comprising four nights per fortnight in school terms and parts of the school holidays. No further interim parenting orders were made before the trial started in February 2023.
The trial took 11 days and was spread across 12 months, concluding in February 2024, though written submissions were then filed in July 2024. Judgment was delivered in late July 2024.
The parenting orders (Orders 1–33) conferred sole parental responsibility for the children upon the mother, declared the children will live with her, and made provision for the children to spend substantial time with the father, comprising four consecutive nights per fortnight in school terms, one-half of all school holidays and other special occasions.
In effect, the parenting orders represented acceptance of the mother’s proposal for maintenance of the status quo (at [154]). The level of parental conflict militated against the father’s proposal for the children to live with the parties for equal time (at [194]–[196]) or, for that matter, even any increase in the amount of time they spend with him (at [197]). However, the children’s meaningful relationships with the father (at [114] and [116]) meant they must still spend a substantial amount of time with him.
The financial orders divided the parties’ property and superannuation in shares of 55 per cent to the father and 45 per cent to the mother (Orders 34–47).
THE APPEAL
The appeal initially challenged both the parenting and the financial orders but was later amended and the challenge to the financial orders fell away. The amended grounds of appeal were as set out within the Further Amended Notice of Appeal filed on 25 October 2024.
The central theme of the father’s attack upon the parenting orders was how the findings made of his commission of family violence were not legally and factually open to the primary judge, which challenge is made good, though the parenting orders were infected by other legal errors.
It is necessary to initially deal with specific complaints of the father’s denial of procedural fairness (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Grounds 7 and 8 – denial of procedural fairness
Ground 8 alleges two particular orders (Orders 10(i) and 10(j)) were not sought by either party or the Independent Children’s Lawyer (“ICL”) and were made without warning to them, thereby depriving them of the chance to be heard in respect of the orders. Without reciting them, the orders reciprocally provide for the children to spend time with each party on the parties’ respective birthdays.
Judges are obliged to make orders under Pt VII of the Act which promote children’s best interests, not to simply choose between the alternate suites of orders proposed by the parties (U v U (2002) 211 CLR 238 at 263 and 284–285), which process might entail making orders not sought. However, in that situation, procedural fairness must be observed by giving the parties the chance to respond to orders which are unheralded and which could not be reasonably contemplated (Raymond & Raymond (2024) FLC 94-180 at [27]; Kearney & McMaster (2024) FLC 94-171 at [16]; Robertson & Sento [2009] FamCAFC 49 at [138]; Bolitho and Cohen (2005) FLC 93-224 at [85]).
Here, the subject orders do not genuinely fall into that category. While nobody sought orders in terms of Orders 10(i) and 10(j), both parties did seek orders requiring the children to share multiple special occasions with them, such as Mother’s Day, Father’s Day, Easter, Christmas and the children’s birthdays. Additional special occasions such as the parties’ birthdays were not so unheralded as to be beyond their reasonable contemplation.
In any event, the complaint is trifling and unworthy of appellate attention. Under Order 10(j), the children will only spend a few extra hours with the mother once each year on her birthday if they are not already in her care. Her birthday falls mid-year, which date ordinarily falls in the Winter school holidays, which holidays the parties share with the children under Order 7, in which event Order 10(j) will most likely only impinge upon the children’s time with the father for a few hours every alternate year. As for the few extra hours the children would spend with the father under Order 10(i) each year on his birthday, he need not avail of the order if he is dissatisfied with it. We reject Ground 8, though the subject orders will be discharged for other reasons.
Ground 7 is a complaint of the father’s denial of procedural fairness arising out of the dismissal of his application to re-open the evidence whilst judgment was still reserved. The complaint is well founded.
The trial concluded in February 2024 and judgment was then reserved. In June 2024, the father filed an application to re-open the evidence. The application was heard and dismissed in July 2024 by the primary judge, though the reasons for that interlocutory decision were contained within the substantive reasons for judgment delivered several weeks later (at [177]–[190]). Although the application to re-open the evidence was dismissed, the primary judge contrarily then took into account the fresh affidavit evidence adduced by both parties, yet without permitting them to be cross-examined on it. His Honour said:
9.…The father’s application will be dismissed, and reasons will be provided later in these reasons for judgment. The Court will nevertheless consider the evidence contained in the father’s affidavit filed 7 June 2024 as it is relevant to the issues before the Court. The mother had the opportunity to respond to this material and filed her own affidavit on 1 July 2024 and the Court will similarly consider this evidence. Despite submissions by the father’s senior counsel to the contrary, this is the appropriate way to proceed in the circumstances of this long-running case, as will be explained later in these reasons for judgment.
(Emphasis added)
Two fatal mistakes are exposed. Once the decision was made to reject the application to re-open the evidence, the further evidence upon which both parties wanted to rely could not then be considered when determining the proceeding. To do so was an error of law. The first error was then compounded by depriving the parties of the opportunity to cross-examine one another in respect of the controversial further evidence. Despite saying the decision would be later explained, the reasons for judgment neither did nor could rationally explain such errors. The evidence, supposedly rejected, should not have been considered. There is no doubt the evidence was taken into account because it was referred to in the reasons at points where findings were made to influence certain orders (at [84], [140] and [202]).
The denial of procedural fairness which results from judges referring to material not admitted into evidence has been explained by the High Court of Australia (Aytugrul v The King (2012) 247 CLR 170 at [20]–[21] and [66]–[74]) and also by this Court (Lamereaux & Noirnot (2008) FLC 93-364 at [48]; McGregor & McGregor (2012) FLC 93-507 at [59]; Berry & Andrews (2022) 65 Fam LR 183 at [10]). However, a judge’s reference to and reliance upon extraneous material not admitted into evidence may be simply characterised as an error of law without needing to engage the principles of procedural fairness (Shell & Armel [2022] FedCFamC1A 83 at [42]; Berry & Andrews at [55]).
Ground 7 succeeds, but only in so far as the denial of procedural fairness was material to the outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). The extraneous evidence improperly taken into account did influence the finding made about the father’s unjustified perpetuation of conflict between the parties (at [84]), which finding of conflict in turn influenced the orders consequently made to regulate the amount of time the children should spend with the father (at [197]), thereby infecting those orders (Orders 6–10). The mother could not reasonably contend the extraneous material had no influence over the outcome, in which event it was material to the decision (De Winter and De Winter (1979) FLC 90-605).
Grounds 1, 2, 3, 4 and 5 – findings of family violence
These grounds all comprise complaints in respect of the findings made by the primary judge about the father’s perpetration of family violence.
Nothing said within these reasons should be construed as the trivialisation of family violence, which is an undeniable blight on our society. The Act sensibly identifies the imperative of keeping children and their carers safe from subjection or exposure to family violence as being integral to the promotion of children’s best interests.
However, in litigation under Pt VII of the Act, untested allegations of family violence are not proven facts. No court can prophetically know whether such allegations made by one party against another are true or false and, if false, whether the falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue (Edinger & Duy (2023) 68 Fam LR 55). The party alleging the fact bears the burden of proving it (Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 at [36]) and the standard of the burden is the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)). The same point was recently made by the Full Court, though perhaps in less robust terms (Leventis & Leventis (2024) FLC 94-204 at [13]–[19]).
It is also important to acknowledge how the purpose of litigation under Pt VII of the Act is to determine orders which will most ably serve children’s best interests (s 60CA and s 65AA). Keeping children and their carers safe into the future is the ideal, which objective should not be subverted by allowing the litigation to be used as the medium by which to make definitive factual findings resolving disputed allegations of historical family violence between conflicted, vengeful or anguished parents, nor to make punitive orders against the parties who may be found to have perpetrated family violence.
Having acknowledged those trite but important precepts, it is instructive to start an analysis of this aspect of the appeal by observing how the parenting dispute before the primary judge was relatively narrow and did not demand the obvious fixation upon family violence.
The mother and the ICL contended the mother should have sole parental responsibility for the children (at [11]–[14] and [191]), which position enjoyed the support of the single expert (at [192]–[193]). The father initially sought an order for equal shared parental responsibility but, four days into the trial, amended his proposal to seek his conferral with sole parental responsibility. Regardless, the common position was that one parent should exclusively hold parental responsibility for the children, which authority would inevitably then be conferred upon the primary residential parent as any other result would be absurd. It was consequently unnecessary to consider whether family violence displaced the presumption of equal shared parental responsibility (s 61DA(2)) because it was mutually accepted the evidence rebutted the presumption (s 61DA(4)). As an aside, because the trial commenced before 6 May 2024, the amendments to the Act enacted by the Family Law Amendment Act 2023 (Cth) did not apply.
Nobody sought to disturb the children’s residence with the mother. Nobody doubted the children should spend an extensive amount of time with the father. Everybody agreed the children should spend time with the father for one-half of school holiday periods and on other special occasions. The dispute was therefore confined to the question of how much time the children should spend with the father during school terms. The mother said preferably three, but no more than four nights per fortnight (at [11] and [154]). The father said it should be equal time of seven nights per fortnight (at [13] and [153]). The ICL fell between them and said five nights per fortnight (at [14] and [197]).
Axiomatically, the decision required of the primary judge was whether the children’s best interests were served by them spending time with the father during school terms for as little as three or for as many as seven nights per fortnight, which decision was contextualised by the children having successfully spent time with the father for four nights per fortnight for several years beforehand with the parties’ consent.
Unsurprisingly then, neither party raised the issue of family violence as a salient consideration within the Case Outline documents they filed just in advance of the trial. For her part, the mother forecast that the only issue of relevance under s 60CC(2)(b) of the Act was the father’s “preoccupation” with the need for an injunction against her friend (“[Mr B]”).
For some reason, which was neither clear to the primary judge then (at [36]), nor now, the parties then conducted a trial over 11 days at enormous expense and made contested allegations of family violence the centrepiece of the dispute. Indeed, the mother began her final written submissions by saying family violence was “a major issue in these proceedings”.
Even if the parties did inadvisedly challenge one another about disputed allegations of historical family violence, either in cross-examination or by duelling submissions, given how the disputed allegations did not seem genuinely material to the outcome of the narrow parenting issue left to decide, one wonders why it was necessary for his Honour to appease the parties by engaging with their debate. It is apposite to observe how judges need not make findings to resolve contested facts unless the findings authentically influence the outcome. In fact, the High Court of Australia has expressly cautioned against unnecessary factual findings in the context of risk assessment (M v M (1988) 166 CLR 69 at 76–77) (“M v M”). So has this Court (Eastley & Eastley (2022) FLC 94-094 at [18] and [31]) (“Eastley”).
In both M v M and Eastley, the risk assessment concerned the risk of sexual abuse to a child, but the present circumstances are analogous because his Honour was supposedly assessing the risk of the children’s exposure (s 60CC(2)(b)) and the risk of the mother’s subjection (s 60CG(1)) to family violence committed by the father. Yet, despite the statutory imperative to prioritise the assessment of such future risks over making factual findings about past events, no risk assessment was ever conducted by the primary judge. His Honour instead posed this question as a sub-heading within the reasons for judgment, which directed attention exclusively to past events (at [50]):
Has there been family violence in this case? If so, what were the consequences of this on the children, and on the parent/victim?
(Emphasis altered)
The retrospective discourse and findings which then ensued naturally concerned only historical events (at [50]–[106]). No attention was given to the separate material question of the existence of any prospective risks of harm (Isles & Nelissen (2022) FLC 94-092). As this Court has observed, any factual findings made about past events are liable to inform the task of risk assessment (Isles & Nelissen at [50]–[51]), which the Act now expressly recognises (s 60CC(2A)), but in this instance the primary judge did not use the findings of family violence to inform any prediction about the safety of either the children or the mother from family violence. There was no prediction.
Implicitly, the mother’s case was posited on the basis that neither she nor the children were at any risk of harm from family violence committed by the father provided the children only spend four nights per fortnight with him in school terms, so it is entirely unclear how she could have conversely contended the children were at risk of such harm if they instead spend five, six or seven nights per fortnight with him in school terms. It may be wondered: what danger could emerge on the fifth night to threaten the children’s safety which danger would be absent on the previous four nights? The question is incapable of a rational answer. The curious paradox was accentuated by the mother’s satisfaction the children could safely spend one-half of all school holidays with the father, which would certainly entail them staying with him for no less than seven contiguous nights in each holiday stint.
Before dealing with the primary judge’s actual findings in respect of family violence, it should also be pointed out how the findings made only marginal difference to the decision about the amount of time the children must spend with the father in school terms. His Honour decided it should be four nights per fortnight, which decision perpetuated the interim consent orders made in June 2021, the reasons for which were essentially the parties’ lack of trust, their ineffective communication, their high conflict, and their power struggle (at [36], [40], [110], [194], [195], [196] and [207]).
Within the very lengthy reasons for judgment, the only connection drawn between the findings made about family violence and the orders ultimately made was this:
197.…The Court understands that there is little objective difference between four and five nights each fortnight. And yet the fact is that the father has perpetrated family violence through his controlling and coercive behaviour and shown not an iota of insight about its impact on the mother and the children. His behaviour has exacerbated the parental conflict. Parents who perpetrate family violence are poor role models for their children. When the family violence is characterised by behaviour that coerces and controls, its potential impacts on the children are even more insidious because of the subtlety of the behaviour. Exposing the children to even one more night each fortnight is not a decision this Court is prepared to make.
Evidently, the perplexing reasoning was this: the father perpetrated family violence which exacerbated the parental conflict and so the children could spend four, but should not spend five, nights per fortnight in school terms with him.
The evidence of parental conflict in this case was abundant, but it is important to observe how parental conflict and family violence are not one and the same thing. Parents can be in conflict without one perpetrating family violence upon the other. Mere disagreement between parties, even if voluble, is not necessarily family violence. The primary judge correctly cited (at [31]) the Full Court’s observations of how one party’s conduct does not inevitably constitute “family violence” simply because it could potentially meet the statutory definition (Carter & Wilson (2023) FLC 94-129 at [8]–[17]), yet his Honour failed to adequately distinguish between potentiality and actuality when making findings in this instance.
While factual findings about family violence were the exclusive province of the primary judge, it is worth noting the single expert did not consider the children had been exposed to any family violence. On the contrary, he expressed the opinion they had not been exposed to harm of any kind “other than that arising directly from the parties’ mutual distrust” (at [40]). The primary judge accepted the single expert’s evidence (at [49]) and agreed the only risk of harm to the children arose from their exposure to parental conflict (at [110]–[113], [128] and [146]). Nonetheless, his Honour then proceeded, needlessly it would seem, to make positive findings of family violence against the father, though some of the mother’s allegations were rejected.
The mother alleged she was assaulted by the father during a physical altercation in November 2018, at or about the time of their separation. On her complaint, police charged the father and issued a provisional family violence order against him. The father defended both proceedings and, in April 2019, the assault charge and the application for the family violence order were both dismissed by a State magistrate. The criminal charge was dismissed because no prima facie case was made out. The application for the family violence order was dismissed because the mother had no “fear of immediate or continued violence”. In these proceedings, the primary judge was not satisfied the father physically abused the mother (at [51]).
With the one and only incident of alleged physical violence rejected in that way, the mother’s case against the father of family violence was then contained to “coercive control, emotional abuse, litigation abuse, [and] financial control” (at [50]), which aspects of the evidence his Honour then went on to sequentially discuss.
The primary judge rejected the mother’s contention the father was “emotionally abusive by infantilising her”, not least because she only made the assertion for the first time in final submissions. It had neither been alleged by her in evidence-in-chief nor put to the father in cross-examination (at [52]).
The primary judge rejected the mother’s contention the father had been “financially controlling during their relationship”, as the parties mutually agreed he would be responsible for managing the family’s financial affairs (at [53]–[54]).
The mother next alleged the father had been “financially controlling post-separation and during [the] proceedings”, which allegedly took several different forms.
His Honour was not satisfied the father’s decision to cease contributing funds to the mortgage offset account after separation was an example of financial control, given the account was in the mother’s sole name, he had already contributed $1.4 million to the account, there were already sufficient funds in the account to keep the mortgaged loan in credit, and he was paying child support to the mother (at [63]).
However, in March 2023, the mother wanted to use the funds in the mortgage offset account to pay the children’s school fees, as the parties had done before, but the father objected and maintained both parties should be equally responsible for the fees from their income to avoid the further depletion of their capital, which the mother alleged was financially controlling conduct. The primary judge agreed, saying:
61.…the father’s conduct was unreasonable in the circumstances and further adds to the financial control described above…The father’s unilateral decision to cease the payment of school fees from the [mortgage] offset account was unnecessary and can be seen as an attempt to exert control over the mother and was certainly experienced by her as such.
That is not a finding which was open to the primary judge on the evidence.
The evidence established the mortgage offset account was held in the mother’s sole name and, following separation in November 2018, she suspended the father’s access to the account and withdrew $50,000 from the account for her own purposes, which withdrawal was notionally added-back to the property pool in the associated financial cause (at [215] and [227]). Due to the mother’s unilateral dealings with the account, in July 2019, the parties agreed to interim orders restraining their use of the funds in the offset account, other than for the payment of certain designated expenses or otherwise by their written agreement. By the time this particular disagreement arose in early 2023, the credit balance of the account had already been depleted by expenditure of over $750,000 and the father did not want it depleted any further. His Honour was wrong to say it was the father’s “unilateral decision to cease the payment of school fees from the [mortgage] offset account” (at [61]) because the school fees were not one of the designated expenses upon which the parties agreed within the interim order. It was the mother, not the father, who wanted to depart from their earlier agreement.
His Honour also fell into error by relying upon merely the mother’s perception of the father’s refusal as being an example of his exertion of control over her. Her feelings were irrelevant to the issue of “family violence” if his conduct could not be objectively considered to be coercive or controlling, and it could not for the following reasons.
The mother also alleged in final submissions that the parties’ indecision over the children’s future attendance at private schools and the way in which the private school fees would be paid amounted to the father’s “financial control or abuse”. While the primary judge rejected that proposition (at [62]), his Honour went on to say this:
62.…The Court does not find that this amounts to financial control or abuse. Irrespective of the Court’s finding in this regard, the mother likely experienced the father’s actions as an attempt to control her. It is important to recognise that the mother’s perception of the father’s controlling conduct is probably based not just on one event, but on a series of past events which, possibly to her, constitute a pattern of controlling behaviour.
(Emphasis added)
Again, the mother’s subjective experience was irrelevant to any finding made about “family violence” taking the form of coercion or control, which is the specific way in which she chose to conduct her case. The primary judge erred by concluding otherwise and by finding the mother’s own perception of the father’s behaviour was relevant to the factual issue at various points in the reasons for judgment (at [52], [54], [61], [62], [63], [71], [80] and [87]).
The concept of “family violence” is defined as follows in the Act:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(Emphasis in original)
The definition is exclusive, not inclusive. Notwithstanding the obvious breadth of the definition, it is disjunctive and admits of “violent, threatening or other behaviour” amounting to “family violence” in only one of two ways, being behaviour of that sort which:
(a)“coerces” or “controls” a family member – which is an objective concept focussing upon the characteristic nature of the perpetrator’s behaviour towards the victim; or
(b)causes the family member to be “fearful” – which is a subjective concept instead focussing upon the victim’s reaction to the perpetrator’s behaviour.
Here, the mother sought to invoke only the first limb – the father’s coercion and control. So, having found the parties’ unresolved disagreement over the children’s prospective attendance at private schools and the manner of payment of the associated fees did not amount to violent, threatening or other behaviour by the father that “coerced or controlled” the mother, her subjective feelings became irrelevant to the objective issue of the occurrence of family violence in that form. She certainly did not allege being “fearful” on account of such disagreement with the father, which meant she eschewed the second limb of family violence. While the mother’s feelings of oppression may well have been a relevant consideration in the eventual discretionary exercise of formulating orders to determine the parenting cause, her feelings could not be relevant to the separate anterior factual question about the characterisation of the father’s behaviour as being either coercive or controlling.
The first form of family violence, which entails coercion or control, essentially captures one family member’s domination of the other family member. That the victim may subjectively feel coerced or controlled is not enough. The coercion or control must be an objective actuality. The alleged perpetrator’s inferred intention to exert influence over and to dominate the alleged victim will very often be decisive of the issue, but it is not an essential ingredient of a finding of family violence taking the form of coercion or control.
If it be the case that, on the whole of the available evidence, the judge is unable to find the perpetrator’s conduct does amount to family violence in the form of coercion or control, such unsatisfactory conduct will still likely be relevant in other ways. If the conduct induced the victim’s fear, then it will be family violence under the second limb of the definition. Alternatively, the unsatisfactory conduct might not amount to family violence at all, but will still influence the overall exercise of discretion under Pt VII of the Act if, for example, it demonstrates lack of insight or stunted parenting capacity.
Turning then to the second form of family violence, it captures behaviour that causes the victim to be “fearful” and thereby shifts attention to the subjective effect of the perpetrator’s behaviour upon the victim and away from the objective characterisation of the perpetrator’s conduct. The perpetrator’s intention to cause the victim’s fear may well be present, but it need not be. Provided the perpetrator’s “violent, threatening or other behaviour” does cause the victim to be “fearful”, the statutory definition of family violence is fulfilled. The victim’s sensation of fear may be established at trial either by accepting the victim’s evidence of experiencing it or by inferring it from the surrounding facts and circumstances.
The father’s submission in this appeal that, for the purpose of the second form of family violence, the victim’s fear may only be established by applying a test of reasonableness should be rejected. The damage is done even if the victim does have a low threshold of tolerance. When the current definition of “family violence” (s 4AB of the Act) was enacted by the Family Law Amendment (Family Violence and Other Measures) Act 2011 (Cth), it abolished the former definition of family violence, which required the perpetrator’s behaviour to cause the victim to “reasonably” fear or to be “reasonably” apprehensive about his or her personal wellbeing or safety, so the change was quite deliberate. Once it is accepted a victim is caused to genuinely feel fearful by reason of a perpetrator’s behaviour, even though a reasonably stoic person may not have been, it can be more easily understood how the perpetrator’s intention to cause such fear is irrelevant. For example, a perpetrator’s angry outburst might not be intended to induce the victim’s fear, but does so nonetheless, in which case the perpetrator’s “violent, threatening or other behaviour” might be construed as family violence.
The mother next alleged the father isolated her from her family, but the primary judge found the allegation of that particular form of coercive and controlling behaviour was unproven (at [86]–[87]), which is unsurprising when two members of the maternal family voluntarily gave evidence as witnesses in support of the father’s case.
Lastly, the primary judge found the way in which the father conducted the litigation against the mother was controlling and coercive of her, just as she alleged. The father conversely asserted, not unreasonably on the evidence it would seem, that he provided the mother’s household with generous financial support, but his Honour remarkably observed:
55.…In some cases, even the provision of generous financial support can, of itself and in context, be controlling.
To exemplify how the father’s litigious conduct was “controlling” despite his generous financial support of the mother, the primary judge then turned to discuss particular instances.
The mother brought several interlocutory litigation funding applications against the father in July 2019, January 2024, and March 2024. The first two applications were resolved, with the mother consensually receiving $100,000 by way of “partial property settlement” in each instance. By her third application, brought after the trial had concluded, the mother sought payment of another $80,000 and an order for indemnity costs against the father. He did not oppose her application altogether but did seek to limit the amount paid to her to $42,000. Surprisingly, the primary judge found the father’s conduct in response to the first and third interlocutory applications amounted to “financial control” and “financial abuse” of the mother because he did not consent to the orders she sought and so hearings were then necessary (at [56], [72] and [278]).
First and foremost, it is simply incorrect to say the father refused to consent to the first application made in July 2019, as the orders on that occasion were made consensually on the first return date of the application only four days after it was filed. It was also wrong to find both parties received $100,000 at that time (at [56]), as only the mother received that sum. Those errors alone fatally infect the finding about financial control and abuse, but the finding is also compromised by the primary judge’s failure to acknowledge how the father consented to more orders in January 2024 resolving the mother’s second application, under which she received another $100,000. Against that uncontroversial history, the father’s subdued response to her third application in March 2024 for another $80,000 was quite benign. In any litigation funding application, the applicant must establish entitlement to the favourable interlocutory order. It is not for the respondent to justify his or her resistance.
Aside from those errors, the primary judge found other aspects of the father’s litigious conduct also amounted to family violence, which need to be addressed. His Honour found:
(a)the mother perceived the father’s maintenance of an application for the children to live with him for equal time throughout the litigation to be “coercive and controlling behaviour” (at [64]–[73] and [108]), which conclusion again wrongly hinged entirely upon the mother’s subjective reaction rather than upon objective facts;
(b)the father exerted “coercive control” over the mother by pressing evidentiary arguments during the trial about the waiver of legal privilege (at [72]);
(c)the father sought to “control the mother” by pressing his application for an injunction restraining her from allowing the children to have any contact with Mr B ([80]–[85], [170] and [174]), which finding was made despite both the single expert and the ICL supporting the father’s application for the injunction;
(d)the father controlled the mother by refusing certain therapeutic treatments for the children (at [88]–[101]), which finding was made despite the single expert saying in cross-examination the father’s response in that regard was “measured and appropriate”; and
(e)the father’s expressed concerns about the mother’s “mental health” were a “convenient and controlling strategy” adopted by him (at [107]–[108]), notwithstanding the evidence of her continuing to intermittently receive both psychiatric and psychological treatment (at [109]), the single expert’s recommendation that she should adhere to such treatment regime into the future because of the risk of her relapse (at [46] and [109]), and the mother’s own admission she is vulnerable to such relapse (at [258]).
One litigant does not commit family violence against another litigant just by refusing to consent or submit to the orders for which the opponent applies. It is impossible to conceive otherwise and, by doing so, the primary judge fell into legal error. Parties are entitled to exert their legal rights and to expect such rights will be adjudicated according to law, regardless of the timidity of the opposing litigant. Undoubtedly, litigation is sometimes apt to be used by one litigant to strategically harass another, which is why Pt XIB of the Act was recently enacted to enable the Court to make orders dismissing, and injunctions prohibiting, unmeritorious, harmful or vexatious proceedings. But this case was far removed from that situation and it was not open to the primary judge to find the contrary. The father did not bring the parenting cause under Pt VII of the Act. The mother did. Nor did he bring the interlocutory litigation funding applications. She did. He was entitled to respond to the litigation instigated by the mother other than by his immediate and complete capitulation.
The father was also perfectly entitled to maintain legal arguments about the waiver of legal professional privilege during interlocutory evidentiary rulings and to also press his application for parenting orders pursuant to s 64B(2)(b). The mother was no less insistent by maintaining her application for the child to spend a maximum of four nights per fortnight with the father during school terms than he was by pressing his application for seven nights per fortnight. The primary judge did not explain why his Honour took an adverse view of the father’s insistence, yet not the mother’s.
Similarly, the father was perfectly entitled to maintain his application for an injunction pursuant to s 68B of the Act against the mother in respect of Mr B. The primary judge positively found Mr B had once slapped the elder child ([171]–[172] and [175]). The father also alleged Mr B lay in bed with the elder child several times, which Mr B denied, but he did admit being in the elder child’s bedroom two or three times (at [164]). The primary judge did not make a finding to resolve the latter factual conflict, but nonetheless found Mr B did not pose a risk of harm to the children (at [83], [165], [170], [172], [174] and [175]) – only that he was eccentric, pompous, and self-centred (at [163] and [174]). The single expert and the ICL both recommended in favour of the injunction sought by the father (at [46], [168]–[169] and [175]), but the primary judge refused it because Mr B supported the mother, she relied upon him, and the injunction would be too intrusive (at [166], [168], [175] and [198]). Given the circumstances, it was not open to the primary judge to find that, by making and unsuccessfully prosecuting the application for the injunction, the father “coerced or controlled” the mother.
The father’s objection to the mother’s referral of the children to counselling might have been ill-considered, or perhaps even obstructive, but that is all. To find his objection was an act of family violence, the primary judge had to find the mother was objectively coerced or controlled by it, but she could never have been because she was able to unilaterally refer the children for counselling or treatment any time she liked without the father’s permission. In some instances she actually did so (at [104], [124]–[129], [134], [136], [143], [151], [191] and [197]), with his Honour finding she “engaged in unilateral decision-making” for the children because she believed she had the authority to do so as their primary carer (at [104], [134], [136] and [151]).
At law, both parties held parental responsibility for the children (s 61C), which rights were not altered by an interim parenting order made during the currency of the litigation. The parties were able to exercise such parental responsibility independently of one another, not just jointly (Newlands & Newlands (2007) 37 Fam LR 103 at [86]–[92]; Goode and Goode (2006) FLC 93-286 at [33]–[39]; B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at [9.29]–[9.30]).
Interim parenting orders were made with the parties’ consent in June 2021 requiring each to inform the other of any medical or healthcare professional to whom they took the children, so each party expressly envisaged the other could take the children for treatment, so long as they informed the other afterwards. Accordingly, nothing said by the father could have precluded the mother from exercising her parental responsibility for the children in the manner she saw fit. Often, she did just that. The mother’s unilateral pursuit of therapy for the children was entirely inconsistent with her being coerced or controlled by the father.
Finally, in the face of the independent evidence about the fragility of the mother’s mental health, it hardly seems to have been a deliberate “controlling strategy” by the father to raise and maintain the issue at trial. The father did not suggest the mother was thereby deprived of the capacity to care for the children for any less than an equal amount of time. The primary judge was impelled to acknowledge the father prosecuted the issue because:
107.…he had no concerns about physical risk to the children but rather it was emotional risk consequent upon the mother’s uncertain mental health, the symptoms of which were manifested by what he regarded as her manipulation of the way she sees events to blame him for any problems, using the children to undermine his role as a parent, and not being able to manage issues in a way that is in the children’s best interests. Equal time was, in effect, a bulwark mitigating strategy against this.
The primary judge sought to explain the ostensibly surprising findings of family violence by saying this in the reasons of judgment:
73.While the father’s individual actions were not all unreasonable, the Court finds that cumulatively, the father’s conduct in this litigation, when examined in conjunction with the behaviour described in the following paragraphs, reflects his attempts to exert control over the mother. The right to litigate an otherwise justiciable issue is fundamental and the father had the right to put his position before the Court. However, it is “the manner in which such right is exercised that is, in effect and in the context of the Act, regulated by the conceptualisation of the litigation as coercive and controlling behaviour, and thus family violence” (citing an earlier first instance decision of the primary judge). The father’s position of equal time was never going to be a realistic outcome in this case, but he refused to compromise on this position and was resolute in pursuing equal time throughout the proceedings and to final hearing. This is even after [the single expert] opined at page 57 of the Report that “a week-about arrangement would not be sustainable in the long term” (a position which he maintained four years later at the final hearing) and further expressed, throughout his cross-examination, that the parties could not cooperate and that parental conflict contra-indicates equal time. The conceptualisation of the manner in which the father exercised his right to litigate as coercive and controlling behaviour can also be seen in the aggressive and accusatory tone used in his communications with the mother about equal time, outlined at [65] and [66] above. The father used these legal proceedings as a tool to further control the mother post-separation, which has contributed to negatively impacting their already strained relationship and has had a marked impact on the children, especially [the elder child], which will be discussed below. This conduct constitutes “other behaviour…that coerces or controls…” for the purposes of s 4AB of the Act.
(Emphasis added)
The proposition that the nature of the father’s conduct of the litigation in the ways described within the reasons for judgment could constitute behaviour which “coerce[d] or control[led]” the mother such as to constitute “family violence” should be rejected. The primary judge’s positive findings of family violence were not open and reflect errors of both law and fact. Since the findings did have some bearing upon the decision about how much time the children should spend with the father (at [197]), the findings cannot be passed off as being immaterial.
Finally, although not dispositive, the primary judge’s findings of the father’s commission of family violence are difficult to reconcile with other findings, including these: the inconsistencies and exaggerations in the mother’s evidence (at [38], [104] and [139]); the aggressive tone of her communication with the father (at [104], [105], [119]–[123], [129] and [197]), which tends to imply she was neither controlled nor coerced by him; and the rejection of the mother’s submission that her contributions in the financial cause should be given greater weight on account of the family violence she experienced in reliance upon the principles distilled in Kennon v Kennon (1997) FLC 92-757 (at [256]).
These grounds therefore succeed.
Ground 6 – influence over the children’s views
This ground contends the primary judge erred when making findings about the father’s influence of the children’s expressed views (as were relevant to s 60CC(3)(a)) on account of there being no evidence to support the finding, which complaint is sustained.
The single expert conferred with the children only once in February 2020, when they were respectively aged only four and two years and too young to express any views. The trial began three years later in February 2023, was adjourned part-heard and was not resumed until February 2024. In December 2023, before the trial resumed, the parties agreed the children should meet with the single expert for an updated report, but the mother resiled from that agreement soon afterwards and so the trial resumed without any evidence about the children’s expressed views.
During cross-examination, the single expert said that, given the children’s then ages, their views would likely carry some weight. The primary judge correctly recorded in the reasons that, aside from evidence given by the parties, the only independent evidence about the children’s views was given by the father’s neighbour, who confirmed the elder child had expressed his desire to spend more time with the father (at [158]).
After having so recorded, the primary judge then said this critically about the father’s attempt to influence the children’s views:
158.…The father was also loudly and repeatedly insistent that [the elder child], as well as [the younger child] (see [65] above), have expressed the view that they want to spend more time with him. A very strong impression is formed that the father has subtly but persistently sought to create opportunities from which [the elder child’s] views could be inferred, whilst totally oblivious to the inappropriateness of this and the uncomfortable position in which [the elder child] was placed, involving him in the conflict between the parties.
It is a well-known truism that children’s views are invariably vulnerable to the influence of the adults who have control of them (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]–[41]; RCB v Forrest (2012) 247 CLR 304 at [52]), but in this case the children lived with the mother and spent four nights per fortnight with the father, so they were much more susceptible to influence by the mother. Of course, that situation did not foreclose a finding of the father’s influence over the children, but the “very strong impression” formed by the primary judge of the father’s nefarious influence over the elder child had no evidentiary foundation at all, which impression fed into his Honour’s adverse view of the father’s parenting capacity. Alternatively, if there was an evidentiary foundation for the impression, it was not explained.
Assuming the primary judge’s “impression” was actually a finding, it was neither open directly or inferentially and was entirely speculative. Aside from the assessment of future risks of harm, which by nature is conjectural (Isles & Nelissen at [7], [47] and [50]–[53]), the law does not tolerate the determination of legal rights on the basis of mere conjecture about historical events (Luxton v Vines (1952) 85 CLR 352 at 358; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278).
This ground succeeds.
Finalising the litigation
The primary judge was convinced orders were needed to finally resolve the parenting cause and to avoid the prospect of further litigation between the parties, which objective the Act formerly implored (s 60CC(3)(l)). To that end, his Honour said this in the reasons for judgment:
176.There is a real risk of further litigation between the parties in this matter. Comments made by the father during his evidence suggest he may not lightly accept the findings made against him, and orders contrary to those sought by him. The long litigation history and the lack of parental insight in this matter is indicative of intractable parental conflict. Thus, what this matter needs are orders that are least likely to lead to further litigation, and which will bring finality and stability to the family. The Court has done the best it can to formulate appropriate orders in this regard.
However, the primary judge then made orders which inconsistently served to perpetuate the litigation. His Honour engaged an ICL for a further 12 months and granted leave to the ICL to relist the proceedings at will. These two orders were made:
32.Pursuant to s 68L(2) of the Family Law Act 1975, [the children] be independently represented for a period of 12 months AND IT IS REQUESTED that the Legal Aid Commission of NSW arrange such independent representation and:
(a)Forthwith upon appointment by the Legal Aid Commission of NSW, the [ICL] file a notice of address for service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the [ICL] copies of these orders and these reasons for judgment dated 26 July 2024; and
(c)The [ICL] meet with the children to explain these orders; and
(d)For a period of 12 months, the [ICL] monitor and assist with the implementation of these orders in a child focused way.
33.Leave is granted to the [ICL] to apply to relist the proceedings on seven days’ notice regarding the interpretation, implementation and/or enforcement of the parenting orders, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
(Emphasis added)
The orders were accompanied by this notation:
A.An [ICL] has been appointed for the following reasons:
a. To meet with the children and explain these orders to them;
b.To assist with the implementation of these orders in a child focused way; and
c.To monitor the implementation of these orders.
(Emphasis added)
Orders 32(d) and 33 are ultra vires and Notations A(b) and A(c) are meaningless. The only explanation given for them within the reasons for judgment was confined to this:
206.As the [ICL] was discharged by consent on 12 April 2024, and given the level of continued conflict between the parties, an order will be made appointing a new [ICL] for a period of 12 months, to explain these orders to the children, and to monitor and assist with the implementation of these orders in a child-focused way.
The cause of action between the parties under Pt VII of the Act was finally determined by Orders 1–31 so, aside from having the ICL explain the orders to the children, there was no legal premise for Orders 32(d) and 33 engaging the ICL for another 12 months.
The ICL was originally appointed to represent the children’s interests within the proceedings. His Honour was not empowered by s 68L(2) of the Act to appoint an ICL to acquit some longitudinal assignment beyond the confines of the concluded litigation. ICLs cannot be used like family consultants to help implement parenting orders by resort to s 65L of the Act.
Even if there was power to validly appoint an ICL for the intended purpose, there are additional impediments. First, Order 33 is incompetent because there is no longer any subsisting cause of action for the ICL to relist if dissatisfied with the way in which the parenting orders are working. If a dispute later arises between the parties about the “interpretation, implementation and/or enforcement” of the orders then, absent any scope for deployment of the slip rule under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), a fresh cause of action would need to be instituted by filing either a parenting application under Pt VII, Div 6 of the Act or a contravention application under Pt VII, Div 13A of the Act.
Secondly, the terms of Order 32(d) are entirely aspirational and hence unenforceable. The purpose of the order was to compel the ICL to monitor the parties’ performance of the orders for 12 months and to assist them to implement the orders in a “child focused way”, whatever that may mean because the interpretation of the task is entirely subjective. In any event, how would the ICL monitor the implementation of the orders? Would the ICL personally attend every changeover for the next year to supervise, or make regular appointments to observe the children with the parties even if the parties object, or periodically interview the parties to monitor their satisfaction with the orders? If the ICL concluded one party was not acting in a “child focused way”, should the ICL then chide the party, offer unsolicited advice about how the party could do better, or do something else instead? If the ICL does nothing in the face of parental conduct deemed not to be “child focused”, is the ICL then liable to be prosecuted for contempt of the Court order? If so, why should the ICL be burdened with the responsibility for solving the foreseen continuing parental conflict? If not, what point is then served by the order? Finally, how could the ICL possibly be funded by the State legal aid agency to acquit such tasks?
By making Orders 32(d) and 33, his Honour did not confine his role to simply deciding the cause on its merits by reference to the evidence the parties elected to adduce. By appointing the ICL as some form of intermediary, his Honour tried to formulate orders to remedy the future conflict foreseen between the parties, but that was doing more than the judicial function required or permitted (Lainhart & Ellinson (2023) FLC 94-166 at [29]–[31]).
DISPOSITION
The successful grounds of appeal vitiate the orders regulating the time the children spend with the father (Orders 6–10), which should be temporarily preserved but then set aside as from the next date the proceedings are before the Court exercising original jurisdiction.
Orders 32(d) and 33, which appoint the ICL to monitor the implementation of the parenting orders over the next 12 months should be set aside forthwith.
All other parenting orders are unaffected and should remain intact.
The cause under Pt VII of the Act should be remitted for re-hearing, but confined to the orders which should be made pursuant to s 64B(2)(b) of the Act regulating the time the children will spend with the father.
The father sought his costs of the appeal from the mother, but the application should be dismissed. The appealable errors which sustain the appeal were not induced by the mother and she did not act unreasonably by resisting the appeal.
The parties’ alternate applications for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) should be dismissed in an exercise of discretion. Both parties spent well over $100,000 in the appeal, as was their prerogative, but the meagre payments they might receive pursuant to the grant of costs certificates to ameliorate their expenditure are inconsequential.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge, Austin, Carew & Williams. Associate:
Dated: 20 December 2024
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