Quintana & Konigsmann
[2025] FedCFamC1A 30
•4 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Quintana & Konigsmann [2025] FedCFamC1A 30
Appeal from: Konigsmann & Quintana (No 2) [2024] FedCFamC1F 567 Appeal number: NAA 246 of 2024 File number: BRC 14498 of 2020 Judgment of: ALDRIDGE, WILSON & CAMPTON JJ Date of judgment: 4 March 2025 Catchwords: FAMILY LAW – APPEAL – Where the father appeals from final parenting orders – Where the father asserts that the primary judge failed to consider the relevant legislation, made “wrong” findings of fact, and failed to make findings of fact – Adequacy of reasons – Where the primary judge undertook a methodical evaluation of the evidence and cogent considerations of the relevant legislation – Where no ground of appeal has merit – Appeal dismissed – Costs ordered in favour of the mother and the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC and 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A 69
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bennett and Bennet (1991) FLC 92-191; [1990] FamCA 148
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Haward & Haward (2023) FLC 94-147; [2023] FedCFamC1A 99
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Helbig & Rowe [2016] FamCAFC 117
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Koyroyshs & Koyroyshs [2021] FedCFamC1A 54
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Incv McDermott (2016) 331 ALR 550; [2016] HCA 22
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
U v U (2002) 211 CLR 238; [2002] HCA 36
Wei & Xia (2024) FLC 94-186; [2024] FedCFamC1A 65
Willmore & Menendez [2022] FedCFamC1A 73
Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 84 Date of hearing: 12 December 2024 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Bunning Solicitor for the Appellant: Wallace Perkins Family Law Counsel for the Respondent: Ms Pendergast Solicitor for the Respondent: Parry Coates Family Law Counsel for the Independent Children’s Lawyer: Ms Eviston Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors ORDERS
NAA 246 of 2024
BRC 14498 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR QUINTANA
Appellant
AND: MS KONIGSMANN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, WILSON & CAMPTON JJ
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Within 28 days, the appellant pay the costs of the respondent fixed in the sum of $20,022 and the costs of the Independent Children’s Lawyer fixed in the sum of $14,044.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Quintana & Konigsmann has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WILSON & CAMPTON JJ:
By way of a Notice of Appeal filed on 27 September 2024, as amended on 8 November 2024, Mr Quintana (“the father”) appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 30 August 2024 regulating the parenting of the children of he and Ms Konigsmann (“the mother”), X, born in 2013, and Y, born in 2017.
The parents commenced a relationship in approximately 2012 and separated in May 2020. On 12 August 2021 final consent parenting orders were made for the parents to have equal shared parental responsibility for the children, for the children to live with the mother and for them to spend time with the father on each alternate weekend and for part of the school holidays. On 9 February 2023, the mother recommenced parenting proceedings following alleged disclosures of sexual abuse perpetrated by the father on Y.
The primary judge’s reasons succinctly record:
2 In January 2023, the mother stopped the children spending time with the father because of her concern that he had sexually abused Y. The children did not see the father again until 23 September 2023. Since then, the children have spent supervised time with the father for four hours each week.
3 It is common ground that the evidence does not support a positive finding that the father has sexually abused the child but nor does the evidence enable the Court to dismiss the allegations as groundless. In those circumstances, the task for the Court is to consider whether the evidence supports a finding that the father poses an unacceptable risk of future harm to the children.
4 For the reasons which follow, I find that the father does pose an unacceptable risk of emotional harm to the children and an unacceptable risk of sexual abuse to the child, Y. I am nevertheless satisfied that the risk of future harm can be ameliorated by supervision. There was no suggestion that the children should be treated differently in terms of spending time with the father. Given the history of the children being exposed to their parents’ conflict and their continuing resistance to spending time with the father, and notwithstanding that when the children do spend time with the father it seems to progress positively, I find that it is in the children’s best interests to limit the father’s supervised time with them to six hours on the last Saturday of each calendar month. Additionally, the father will be able to communicate with the children each fortnight by telephone/video call and to send gifts and cards on special occasions. In my view, such an order ameliorates the unacceptable risks of emotional harm to the children and sexual abuse to Y while also enabling them to maintain their right to have a relationship with the father.
The orders made on 30 August 2024 under challenge on appeal provide for the parenting of the children in the terms identified (at [4]).
The mother and the Independent Children’s Lawyer (“the ICL”) oppose the appeal.
For the reasons that follow, the appeal is dismissed.
BACKGROUND
The father was born in 1977 in Country J and is currently 47 years old. The mother was born in 1976 in Country F and is currently 48 years old. The mother often speaks to the children in Country F language. Both the mother and father are now Australian citizens.
On 19 October 2020 the father commenced financial and later parenting proceedings in what was then the Federal Circuit Court of Australia.
In or around early May 2021, prior to the consent orders made 12 August 2021, the mother said Y made a disclosure to her as to sexual abuse perpetrated by the father.
In April 2022 the mother re-partnered with Mr H. They do not cohabit on a full-time basis. Mr H has three children of a previous relationship, who were 23 years old (twins) and 17 years old at the time of the trial.
The mother alleges that during January 2023 Y made a second and a third disclosure as to sexual abuse perpetrated by the father. From 23 January 2023 the mother withheld the children from spending time with the father. On 9 February 2023 she recommenced parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2).
On 2 March 2023 an order was made referring the matter to the National Assessment Team for transfer to the Federal Circuit and Family Court of Australia (Division 1). On 15 May 2024 an order was made amending the order on 2 March 2023 to include a transfer order.
In May 2023 the Queensland Police Service finalised their investigation into the allegations raised by the mother. They concluded that there was insufficient evidence to proceed with a criminal prosecution of the father.
On 13 July 2023 consent orders were made suspending the father’s time with the children.
In August 2023 the Department of Child Safety, Seniors, and Disability Services (“Child Safety”) finalised their investigation. They concluded that Y had suffered emotional harm from sexual abuse perpetrated by the father.
On 19 September 2023 orders were made pending further order for the children to live with the mother and spend time with the father at a supervised contact centre for up to four hours each week. An order was made for the mother to personally supervise the children when they were in the care of Mr H. On 23 September 2023, supervised time commenced between the father and the children.
On 18 February 2024 the Family Report of Ms D was released.
In or about April or May 2024 the father re-partnered with Ms K. They do not live together.
The allegations as to sexual abuse perpetrated by the father
The mother’s evidence was that the child, Y, had made three disclosures to her as to sexual abuse perpetrated by the father. They were:
(a)In or around early May 2021 Y said “Daddy touched my private parts” and X said that the father slept in her bed and asked X to sleep in another room;
(b)In January 2023 Y again said “Daddy touched my private parts”, and when the mother asked, “What happened? Please tell me the truth, I am here and you tell me anything you want”, Y responded, “I trick you mummy”; and
(c)In January 2023 Y said “my [Country F language for vagina] is sore”. When the mother suggested that the sandpit at daycare could cause such pain, Y responded “no Daddy touched me again”. Further, Y said “[X] doesn’t see it”, because “Daddy tell him to go away”.
The father denied the allegations. His case was that the mother had fabricated the allegations against him or had influenced Y to make the statements that she did.
In June 2021, after the first disclosure, the mother took Y to the doctor, Dr M, in response to a complaint from Y that her vagina was hurting and the mother finding blood in Y’s underwear. Dr M was the long-term general practitioner of the wife and the child, Y.
In January 2023, after the second disclosure, the mother had a telehealth appointment with Dr M and told the doctor what Y had said.
Later in January 2023 the mother booked an appointment for the child with Dr M for the following day because of what the mother described as “a rash around [the child’s] mouth which appeared to be red sores forming”. Dr M made a notification to Child Safety and provided the mother with a referral to the O Hospital.
Subsequently in January 2023 Y was interviewed by Police.
A few days later in January 2023 X was interviewed by Police.
On that same day Y was examined at the O Hospital.
The following day the father was interviewed by Police.
In August 2023 Y was interviewed by Child Safety at the mother’s home. Later in August 2023 the father was interviewed by Child Safety. The primary judge found that:
98 On a basis that is far from clear from the evidence produced by Child Safety, it was concluded by Child Safety that “[Y] has been assessed as suffering emotional harm resulting from sexual abuse…” and that the father “is a parent identified in this investigation and assessment as responsible for sexual abuse of his daughter”. Child Safety refer to this conclusion being arrived at “on the balance of probabilities”. Child Safety did not substantiate physical harm to X.
99 Child Safety noted that in the event the father was to spend unsupervised time with the children there would need to be a further assessment for risk.
ISSUES
Absent controversy on appeal, the primary judge concisely recorded the list of issues identified by the parties to be determined at trial:
5 The parties identified the following issues for my determination:
(1) Does the father pose an unacceptable risk of harm to the children arising from allegations of sexual abuse of Y?
(2) Can the parents make parenting decisions about major long-term issues jointly?
(3) Does the mother pose an unacceptable risk of emotional and psychological harm to the children arising from allegations she:
(a) Fabricated allegations of Y having been sexually abused and encouraged or influenced Y to make untrue statements;
(b) Influences the children’s negative views about the father;
(c) Continues to expose the children to conflict between the parents;
(d) Does not have capacity to protect the children from her own negative views of the father; and
(e) Cannot support the relationship between the children and the father.
(4) If either parent poses an unacceptable risk of harm to the children, can that risk be ameliorated by the imposition of restrictions or limitations such as supervision?
(5) Relatedly, if such risk can only be ameliorated by the imposition of supervised time, what are the benefits and/or potential harms to the children of having their relationship with that parent limited to supervised time, and what are the potential benefits and/or harms to the children of having their relationship with that parent severed?
6 Additional issues raised by the parents, namely, whether there was a risk of physical harm to X from the father, and whether the mother’s current partner should be restricted from spending time alone with the children, were abandoned, it being conceded that the evidence would not support a finding of risk in relation to either issue.
THE PROPOSALS OF THE PARTIES AND THE ICL AT TRIAL
The proposals of each of the father, the mother, and the ICL at the trial recorded in the reasons were:
7 It is common ground that the children should continue to live with the mother although the father is seeking an order that the children live with him for 12 weeks to repair his relationship with them and then return to live with the mother.
8 The mother’s primary position is that she should have sole decision making responsibility for all major long-term issues and that the children should not spend any time with the father. The particulars of the order sought by the mother, including in the alternative, are set out in her Amended Initiating Application filed 28 June 2024.
9 The father proposes that the children live with him for 12 weeks and then return to live with the mother. During the 12 weeks living with him, the father proposes that the children spend time with the mother and after they return to live with the mother, the father proposes that the children spend five nights per fortnight with him being from Friday to the following Wednesday. The particulars of the order sought by the father are set out in exhibit 15.
10 The Independent Children’s Lawyer (“ICL”) recommends that the children live with the mother and spend unsupervised alternate weekends and half school holidays with the father after a prolonged reintroduction period. The order proposed by the ICL is set out in exhibit 13. Notwithstanding the recommendations made by the ICL, it was conceded that it would be open on the evidence to find that the father poses an unacceptable risk of sexual harm to the child, Y.
THE CONCLUSIONS OF THE PRIMARY JUDGE
The reasons record:
103 Y has made repeated statements that the father has touched her private parts and that it hurts. She has made these statements suggestive of sexual abuse to the mother, to Dr M, to X, to Mr H, to police, to Child Safety and to the family report writer, Ms D. It is of significance that X has said that the father would tell him to leave the room or lock him out of the bedroom when he was in there with Y.
…
105 Ms D helpfully identifies in her report the difficulties in assessing the accuracy of statements by young children in a context of family conflict in circumstances where a child may have been subjected to repeated questioning as may have occurred in this case at least after the 2021 statements…
106…In her view, the children have been exposed to considerable parental conflict and are strongly aligned with the mother.
The primary judge found:
107…I further reject Ms D’s opinion that the mother has had difficulty considering or accepting information that did not confirm her own beliefs that the children were at risk in the care of the father and with accepting outcome of the police investigation.
108 …While the mother’s actions in questioning and then recording the child on the toilet on January 2023 were ill advised, the questions posed by the mother suggested alternatives to the child other than sexual harm. In my view, the mother was very much open to receiving information that challenged her concern about sexual abuse.
109 …I do not consider it at all unreasonable for the mother to maintain her concerns despite the police conclusion that there was insufficient evidence for criminal prosecution.
110 I reject Ms D’s opinion that the mother has overanalysed, or pathologised the children's behaviours as being more significant than the reality. Understandably, the mother feels considerable guilt about ignoring, as she sees it, the 2021 statements when they have re-emerged in 2023. The mother acted entirely appropriately in 2021. She received information that was concerning, and she immediately raised it with the father. She was prepared to accept that what the child said should be considered in the context of the father providing day to day care to the child.
The primary judge further found:
104 Historically, the children have had a close and loving relationship with the father, despite the acrimonious relationship between the parents. In their interviews with Ms D, the children recalled positive things about the father although indicating they did not want to see him or not see him much.
…
114 Historically [Y] has had a loving relationship with the father, and the supervisor’s observations of the child’s time with the father seem largely positive, but such a relationship is not determinative of the issue of risk. It is entirely possible for Y to still love and want to spend time with the father even if he has abused her.
In concluding that the father posed an unacceptable risk of emotional harm to the children and sexual harm to Y, the reasons record:
115 The father was unable to suggest any circumstance of innocent touching of the child’s private parts that might explain her statements. He denied sleeping with the child. He denied wiping her labia when washing or drying her. The father’s only response is to accuse the mother of fabricating the allegations or influencing Y to make the statements she has. The father denied X’s statement that the father locked him out of the bedroom suggesting that it may have blown closed in the breeze from the air conditioner. I reject the father’s suggestion about the bedroom door blowing closed because Ms K’s evidence about the position of the air conditioner makes it improbable that the father’s evidence is accurate. While Ms K was present at the father’s home on the weekend in January 2023, she was not observing the father and Y at all times.
Conclusion – risk of harm
116 I find that the father poses an unacceptable risk of emotional harm to the children and of sexual harm to the child, Y, based on the following evidence:
(a) Y has made repeated statements to numerous persons that the father has touched her private parts and it hurt or hurts, with the first statement having been made in 2021;
(b) X’s evidence that the father told him in 2021 to leave the bedroom and that the father was sleeping with the child and in 2023 that the father locked him out of the bedroom while the father and Y are in their [sic] alone;
(c) If abuse has occurred, it has occurred while X was in the house;
(d) X has expressed concern and worry about his little sister and in more recent times has expressed suicidal ideation;
(e) Y had blood on her underwear in 2021 which was determined at the time to be related to constipation;
(f) After the child’s “disclosures” in January 2023, the child behaved in an unusual way with the father the next day, refusing to look at him, clinging to the mother, refusing to be photographed with him, and rejecting any contact with him;
(g) The child had a “small healing abrasion superiorly to clitoris” and “scratch abrasion on external genitalia, non-specific for sexual abuse” on examination in January 2023;
(h) The child rejected alternative reasons for her sore genitals and in January 2023 said the father had touched her private parts “again”;
(i) The child has repeatedly stated that she is telling the truth;
(j) The child has presented with sexualised behaviours including masturbation (which by itself may be completely developmentally normal) and a statement about sucking her brother’s penis;
(k) The child’s matter of fact “disclosures” which may seem incongruent with disclosing sexual abuse may be explained by the child having been repeatedly questioned (at least leading up to and from the time of the 2023 “disclosures”), or having a neuro developmental disorder;
(l) If the child’s statements are in fact disclosures of sexual abuse, it will be damaging for the child to not be believed;
(m) Child Safety concluded that Y had been sexually abused and that the father posed a risk of harm such that if he were to have unsupervised time with her there would likely be further assessment;
(n) The father was unable to offer any innocent explanation which might explain the child’s repeated “disclosures” and X’s evidence about being locked out of the bedroom; and
(o) The children have been exposed to their parents’ conflict and are aligned with the mother and while they enjoy the time spent with the father they are resistant to spending time with him.
As to whether the parents can make decisions about major long-term issues jointly, findings were made that it was common ground that the parents do not trust each other, and that “it was very apparent during their evidence that they dislike each other intently” (at [118]). The primary judge accepted the opinion of Ms D that she did not believe the parents would be able to make decisions or trust in the other’s decision making, and that the Court should consider granting sole parental responsibility to the mother on a final basis (at [119]–[120]).
As to whether the mother posed an unacceptable risk of emotional or psychological harm to the children, the primary judge:
(a)Rejected the contention that the mother had fabricated the allegations or encouraged or influenced Y to make untrue disclosures (at [123]);
(b)Found the children’s stated resistance to spending time with the father was, at least in part, influenced by the mother’s negative views of the father, although they had their own reasons for negativity towards him (at [124]);
(c)Found it likely that the mother and Mr H had exposed the children to conversations about the father, and that they needed to be more vigilant to avoid this exposure (at [124]);
(d)Found that the mother will find it difficult to support the relationship of the children and the father, however despite historic concerns, the mother did support the children’s relationship with their father over two periods since separation (at [125]); and
(e)Found that while there remains a risk that the mother will expose the children to emotional and psychological harm, the magnitude of the risk was not unacceptable (at [126]).
The primary judge then goes on to:
(a)Find the unacceptable risk of harm to the children by the father can be ameliorated by supervision (at [127]–[129]); and
(b)Consider the benefits and/or harms to the children of spending supervised time with the father or severing the relationship (at [131]–[135]);
to then determine the orders now under challenge as being in the best interests of the children.
THE APPEAL
There is a presumption at law that a primary judge’s decision is correct, the onus resting on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
The relevant principles which govern appeals from discretionary judgments are well known. Error of the type identified in House v The King (1936) 55 CLR 499 (“House”) must be established. There, the majority of the High Court said at 504–505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
The weight given to evidence in the exercise of discretion in making parenting orders that promote the best interests of children is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519–520).
By way of the Amended Notice of Appeal filed on 8 November 2024, the father raises seven grounds of appeal. Ground 2 was withdrawn during the hearing of the appeal. The purpose of a Notice of Appeal is to identify with precision where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. The father encountered challenges in achieving this obligation.
The father’s Summary of Argument (filed 8 November 2024) distilled his complaints on appeal as:
3.The primary complaint of the Appellant at this Appeal is the manner in which the learned Judge failed to consider the relevant legislative sections of the Act and made findings about risk in a vacuum of consideration of the risk alleged by the Appellant.
4.The Appellant also contends that the learned Judge made wrong findings of fact on evidence which was not available to her and that caused her to err at law and in particular as to the competing proposals of the parties.
CONISDERATION
It is appropriate to adopt the sequence of consideration of the grounds as taken by father at the hearing of the appeal.
Ground 1 – “Whist [sic] the learned Judge referred to Section 60CC of the Act at paragraph 34 of the Reasons and identified at paragraph 44 that she had considered each of the sections of the Act, the Reasons of the learned Judge are insufficient and the learned Judge’s consideration of the law is in error where:
a. There is no separate identification in the Reasons of the consideration of the sections of the Act, as set out in paragraphs 29-44 of the Reasons,
b. The Reasons therefore do not identify and are insufficient in so far as they do not identify the consideration of the relevant sections of the Act,
c. The learned Judge further failed to separately evaluate each of the parties’ proposals, which led to her to err in law.”
The father concedes that the reasons identify applicable legal principles as to the determination of the parenting dispute (at [29]–[43]), including reciting the considerations contained in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) (at [34]).
The first and second sub-grounds can be quickly determined. The primary judge explicitly said:
44 Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.
(Footnote omitted)
Notwithstanding the plain language of the complaint in sub-ground 1(a), the father conceded during the hearing of the appeal that it is not necessary for reasons to record a formulaic recital of each factor contained in s 60CC of the Act (SCVG & KLD (2014) FLC 93-582; Willmore & Menendez [2022] FedCFamC1A 73 at [93] and the cases cited therein). The sub-ground was always misconceived, having no merit.
The father submitted that “whilst the learned Judge set out that [they] had considered all sections of the Act when making [their] determination, nowhere in [the] judgment does [the primary judge] consider anything other than the issue of risk as asserted by each of the parties” (italicised emphasis added) (father’s Summary of Argument filed 8 November 2024, paragraph 19). This submission was inaccurate, the primary judge making a plethora of findings as to each cogent and determinative s 60CC consideration. The Full Court has said “[p]rovided all relevant considerations identified in the statute are considered and ultimately balanced in the reasoning process to the overall determination of the paramount consideration of best interests (s 60CA), no error will be demonstrated despite the consideration of the various statutory provisions out of their sequence or conventional order” (Oswald & Karrington (2016) FLC 93-726 at [48]). Sub-ground 1(b) fails.
The father’s Summary of Argument as to an insufficient reasons complaint in sub-ground 1(c) said:
24.In that regard, it is submitted that the learned Judge failed to separately and properly consider each party's case and the relevant section 60CC factors that underpin it. The learned Judge instead determined the Respondent’s risk case and then found (as set out above) what following was a rejection of the Appellant’s risk case. There was no separate consideration of the competing proposals.
25. In that regard the Full Court in Banks said the following (my emphasis):
‘Paragraph 25 – It is fundamental in every parenting case that the parties’ proposals be clearly identified. This is so, because it is an essential requirement that each proposal be subject of separate evaluation (AMS v AIF (1999) CLR 160 at 191 [95] per Gaudron J at 226 [196] per Kirby J at 232 [218]-[219] per Hayne J; U v U [2002] HCA 36; (2002) 211 CLR 238 at 248 [37] per Gaudron J’
It is uncontroversial that the regime of the parenting proposals of each parent and of the ICL were clearly and expressly identified at [7]–[10]. The sub-ground at the hearing of the appeal focused on a criticism that the primary judge approached the father’s proposal “through the prism” as to whether he posed an unacceptable risk of harm to the children, implicitly not engaging with the wife’s proposal in the same manner.
In so far as the Full Court in Banks & Banks (2015) FLC 93-637 (“Banks & Banks”) said that it is an essential requirement in each parenting matter that each proposal be the subject of separate evaluation, that interpretation has been overstated. Banks & Banks was an appeal from an interlocutory parenting determination consensually allowed in circumstances where the primary judge did not identify any proposal of any party. Both AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 featured competing proposals as to the relocation of children, requiring the consideration and evaluation of each parent’s primary and alternate proposals on their merits by way of relevant s 60CC considerations.
The ICL identified what was said by the Full Court in Helbig & Rowe [2016] FamCAFC 117, in turn citing A v A (1998) FLC 92-800 at 84,996, most recently repeated with approval by the Full Court in Bielen & Kozma (2022) FLC 94-123 at [51], being that in parenting proceedings, where it is contended that a parent poses an unacceptable risk of harm to a child:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance. The approach of his Honour of determining whether the wife had a genuine and objectively valid belief in the events giving rise to her concerns is to confuse these two separate issues. The result is, in our view, that his Honour’s approach was erroneous.
(Emphasis added)
The gravamen of sub-ground 1(c) prosecuted by the father as to reasons mandates engagement with what was said by the Full Court said in Tibb v Sheean (2018) 58 Fam LR 351:
87.In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.
(Emphasis added, footnote omitted)
The parameters of the issues in dispute in this parenting trial were set by the parties as recorded by the primary judge (at [5]) (Wei & Xia (2024) FLC 94-186). Those issues directed the focus of the hearing and the judgment, informing consideration of the s 60CC factors that were cogent and determinative of them.
Reasons are inadequate if they fail to identify the basis of the decision and the extent to which the parties’ submissions were understood, or if they do not do justice to the issues posed by the parties in the proceeding (Bennett and Bennet (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Yarrow & Yarrow [2022] FedCFamC1A 135 at [17]).
The reasons methodically evaluate and determine each of the issues as defined by the parties (at [5]). As to the father’s contention that the mother posed an unacceptable risk of harm to the children, those matters are expressly considered and evaluated. As an adjunct to these findings, the father agreed at the hearing of the appeal that the primary judge correctly recorded that “[u]ltimately, it was conceded by the father that while he says there is a risk, it was not necessary or appropriate to make a finding of unacceptable risk [of harm posed by the mother to the children]” (at [126]).
The contention in sub-ground 1(c) that there has not been proper, genuine, and realistic consideration to the relevant s 60CC factors (Bondelmonte v Bondelmonte (2017) 259 CLR 662) by reference to the issues in dispute as defined by the parties at trial is absent merit. The pathway of reasoning of the primary judge is clearly discernible when consideration is given to cogent evidence that is critical and determinative of the conclusions of the issues as defined by the parties (Aitken & Aitken (2023) FLC 94-142 at [42]), leading inexorably to one conclusion.
Ground 1 fails.
Ground 6 – “The findings about verbatim conversations and recordings is wrong in fact in so far as the [mother] asserted that there were no further recordings (not disclosed) whilst Mr [H] conceded that there were further recordings taken, and the error of fact led the learned Judge to err in the assessment of the credibility of the [mother] as a witness of truth.”
At the hearing of the appeal, the father said that Ground 6 carried the “balance of the weight of the appeal”. The ground is said to challenge a finding of fact. The father’s Summary of Argument did not comply with any part of r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The rule provides:
13.23 Summary of argument and list of authorities
…
(3) If a party intends to challenge any findings of fact, the summary of argument must:
(a) identify the error (including any failure to make a finding of fact); and
(b) identify the finding that the party contends should have been made; and
(c) state concisely why the finding, or failure to make a finding, is erroneous; and
(d) refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
At the hearing of the appeal the father said that the finding under challenge was in the second sentence at [112]. That paragraph of the reasons records:
112 The mother and Mr H were less than convincing about their ability to recall apparently verbatim conversations they have had with Y. Mr H was not sure whether there were other recordings. The mother denied other recordings but said there may have been other notes contained in emails to her solicitor of what the child said. The notes produced by the mother certainly do not contain verbatim accounts of conversations. The mother contends that her notes triggered memories of particular conversations that she would never forget. It seems likely that the mother and Mr H have had some conversations about their evidence which would hardly seem unusual, although less than ideal. While I remain somewhat doubtful about the accuracy of some of the mother’s and Mr H’s apparent verbatim accounts of conversations, I nevertheless find that overall, the mother and Mr H did their best to recall the conversations. The first “disclosure” made by the child was in May 2021 and did not resurface until January 2023. If the mother were intent on fabricating evidence, it seems illogical to wait nearly two years before making false allegations.
(Emphasis added)
To give context to the ground:
(a)The mother had disclosed a single recording of Y’s disclosures on the toilet in January 2023. It was her evidence that there were no other recordings of her speaking with Y.
(b)The father’s case was that the mother was influencing Y to make statements as to him touching her by repeatedly questioning the child or suggesting to the child that had occurred.
(c)The father said there was no other reasonable explanation as to how the content of lengthy verbatim conversations between the mother and Y could be reproduced in the affidavit evidence unless those conversations had been recorded. He asserted that the mother had not disclosed these additional recordings.
The father’s contention on appeal was that the fact of these additional recordings and the mother’s failure to disclose them, “affects all the evidence” as to him posing a risk of harm to the children, or at least to Y.
The father identified parts of the transcript of the cross-examination of the mother in support of the ground:
[Counsel for the father:] There is no note, or there is a note?
[The mother:] Well, I’m not going to forget how my son said, “Mommy, can we beg the governor to help us to stop seeing Dad?” This is something that I wouldn’t forget that easily.
[Counsel for the father:] But you just told her Honour before that you took a – sorry, you took a note not long after the conversation, an almost word-for-word note. That’s what you told her Honour?
[The mother:] Yes.
[Counsel for the father:] And it’s not there, is it? It’s not in the documents you’ve disclosed?
[The mother:] No.
[Counsel for the father:] Are there more documents? Are there documents that you haven’t disclosed which are notes of these conversations you’ve had with your children?
[The mother:] I have provided everything.
[Counsel for the father:] Sorry?
[The mother:] I have provided everything I had.
[Counsel for the father:] Okay. So this is all that we’ve received. Do you acknowledge that?
[The mother:] Yes.
[Counsel for the father:] It’s about 20 pages?
[The mother:] Yes.
[Counsel for the father:] It doesn’t really have any conversations back and forth between you and the children in it, does it?
[The mother:] No.
[Counsel for the father:] No. And it doesn’t really go to anything other than – there’s a couple of undated entries, but it doesn’t really go to anything other than some – something in maybe February/March-ish this year – January, sorry, of ’23. It’s sort of bits and pieces, isn’t it?
[The mother:] Yes.
…
[Counsel for the father]: But you do agree, madam, that this is all you’ve provided in answer to the call for documents, notes, diary entries and the like?
[The mother:] Yes.
[Counsel for the father:] Well, what about paragraph 201? That’s, again – appears – word for word?
[The mother:] Yes.
[Counsel for the father:] And if you just go over the page, paragraphs 203 to 205:
In the car on the drive home, we had the following discussion. Me: “How was your day?” [X]: “Dad came to assembly.” Me: “What do you mean Dad came to assembly?”
So can I ask you specifically about that one. Did you take a word-for-word note in relation to that one?
[The mother:] What – which one are you talking about? I’m sorry.
[Counsel for the father:] Paragraph 205?
[The mother:] I do recall the – I do recall the conversation.
[Counsel for the father:] Okay.
[The primary judge]: Sorry, repeat that. “I do” - - -?
[The mother:] Recall that conversation.
[The primary judge:] Okay. You may recall it. You’re being asked whether you made a written note about it at the time, shortly thereafter. Did you make a written note about that conversation shortly after you had the conversation?
[The mother:] I don’t recall – I’m not so sure if I made the writing record, but I do remember advising my lawyer about the situation.
[Counsel for the husband]: Word for word?
[The mother:] Yes.
[Counsel for the father:] What about 210, 19 March 2024?
[The mother:] Yes.
(Emphasis added)
(Transcript 31 July 2024, p.20 line 9 to p.21 line 46)
The father then referred to the cross-examination of Mr H:
[Counsel for the father:] What about 30 September of ’23:
Mummy, how long are we going to see dad?---Four hours.
Four hours is a lot, mummy?---It’s better than 72 hours.
[Counsel for the father:] ?
[Mr H:] Yes, I remember – I remember being there, yes.
[Counsel for the father:] All right. 7 October 2023, is that one you worked on together because there’s a lot of specifics in that one?
[Mr H:] I remember that one specifically as well on the drive back.
[Counsel for the father:] You remember that one specifically - - -?
[Mr H:] I remember that, yes.
[Counsel for the father:] - - - word-for-word?
[Mr H:] I – no. I can’t tell you that it’s word-for-word but I - - -
[Counsel for the father:] So why is it recorded as word-for-word?
[Mr H:] We were – that was the way I understood it had to be in court.
[Counsel for the father:] Yes?
[Mr H:] When I put it as notes, obviously I couldn’t submit it as notes. So I understood for court you have to put, “She said, he said” and that’s what I did.
[Counsel for the father:] But you did it all from memory all from talking to [the mother] not from my document?
[Mr H:] I did it from whatever notes we had.
[Counsel for the father:] Or any recording?
[Mr H:] Notes we had.
[Counsel for the father:] Have you ever seen [the mother] record any of these conversations?
[Mr H:] I can’t remember that I did. No, I didn’t see recording, not these particular ones that I – there may have been other recordings.
[Counsel for the father:] Okay. All right. So other recordings. Recordings of things that the children were saying in the car or at home? You know what I mean by “recordings”, don’t you? Audio recordings or video recordings?
[Mr H:] Yes, I can’t recall – honestly, I can’t remember that she had recorded – she may have done.
[Counsel for the father:] Right. Well, it’s the sort of thing, I would say, that you would remember because - - -?
[Mr H:] I don’t recall seeing her record this. It’s possible that she could have recorded it.
[Counsel for the father:] Right. So why do you say it’s possible?
[Mr H:] Because it’s possible.
[Counsel for the father:] But, see, if you can remember word-for-word things that happened 12 months ago, you can remember whether she had recorded – I’m going to put – I’m going to suggest to you that she has, from time to time, recorded some of these conversations?
[Mr H:] She may have done. I can’t recall.
[Counsel for the father:] And you’ve seen her record them. You’ve been in the car or in the presence with her when she has recorded them on occasions.
[Counsel for the mother]: Well, I object - - -
[Mr H]: Yes.
[Counsel for the mother]: - - - but I only say it for this reason.
HER HONOUR: He just answered.
(Emphasis added)
(Transcript 1 August 2024, p.145 line 24 to p.146 line 32)
The father’s reference to the transcript then ceased. He did not refer on appeal to the then immediate continuing cross-examination of Mr H:
[Counsel for the mother]: Could I have the witness - - -
[Counsel for the father]: He answered. Right. So you’ve been in her presence from time to time when she has recorded. And, doing your best you can, how many times do you think she has recorded conversations?
[Mr H:] I can’t remember.
[Counsel for the father:] Right. More than once?
[Mr H:] Again, I cannot remember.
[Counsel for the father:] Right. Paragraph number 27, sir?
[Mr H:] Yes.
[Counsel for the father:] Again, you offer her Honour any assistance on how that came to be contained in your affidavit, the word for word:
Did you just call your mum a gold digger? My mum – dad calls mum a gold digger.
That’s you and him having a direct conversation?
[Mr H:] That is – that is me doing the conversation here from my memory.
[Counsel for the father:] Word for word?
[Mr H:] Well, I’ve got some notes that rejogged my memory - - -
[Counsel for the father:] Right?
[Mr H:] - - - as – so that I can remember what happened.
[Counsel for the father:] Yes?
[Mr H:] And I put it in a format that everybody could see what had happened.
[Counsel for the father:] And can I ask you, sir, you said before that you had been present when there has been a recording. You don’t remember how many times. Have you had reference to any of – sorry, I withdraw that. Have you had reference to audio or a visual recording in the preparation of your material?
[Mr H:] No.
[Counsel for the father:] You haven’t?
[Mr H:] I don’t ..... no.
[Counsel for the father:] Do you know if [the mother] has?
[Mr H:] I don’t – I haven’t seen – she has been preparing this for days.
[Counsel for the father:] All right?
[Mr H:] And so I don’t know. I haven’t been there at any given moment.
[Counsel for the father:] Did you see her draft affidavit before she swore it?
[Mr H:] I saw some parts of it, yes.
[Counsel for the father:] All right. And did she send your - - -?
[Mr H:] It came in my email.
[Counsel for the father:] Sorry?
[Mr H:] It came in my emails I saw.
[Counsel for the father:] Sure. Did she send it to you, did she?
[Mr H:] It was sent to the lawyer and then I was cc’d on it.
[Counsel for the father:] cc’d in on her email – her affidavit?
[Mr H:] Yes.
[Counsel for the father:] All right. And did you have any input into her affidavit?
[Mr H:] No.
[Counsel for the father:] Right. And so do you know if she saw your affidavit?
[Mr H:] I know that because – no, I didn’t provide her my affidavit. Let’s put it that way.
[Counsel for the father:] You didn’t?
[Mr H:] I didn’t.
(Emphasis added)
(Transcript 1 August 2024, p.146 line 34 to p.147 line 41)
The father submitted on appeal that the finding (at [112]) that Mr H was unsure as to whether there were other recordings was the “wrong” finding. He further submitted that the primary judge erred in not finding that the mother had made additional recordings asking Y questions as to harm posed by him, anchored in the cross-examination of Mr H, and that they had not been disclosed.
The father conceded at the hearing of the appeal that the findings at [112] were affected by the primary judge’s acceptance of the credibility of both the mother and Mr H.
Leaving aside gaps in the logic underscoring the father’s conclusions, what he is required to establish on appeal is not that the evaluation of the evidence tends to a different conclusion from that of the primary judge, but that the finding made under challenge by the ground was not reasonably open on the evidence, as confirmed by the Full Court in Koyroyshs & Koyroyshs [2021] FedCFamC1A 54:
121. Where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings (Edwards v Noble (1971) 125 CLR 296). Where the factual findings are likely to have been affected by the judge’s impressions about the credibility or reliability of the witnesses formed from seeing and hearing them give their evidence, unless those findings are demonstrated to be “glaringly improbably” [sic] or “contrary to compelling inferences” significant appellate restraint is required (see Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; Lee v Lee (2019) 266 CLR 129).
The father could not identify or establish at the hearing of the appeal how the findings at [52] were not open on the evidence, glaringly improbable, or contrary to compelling inferences, so as to enliven appellate intervention. Appellate error is not demonstrated by the primary judge coming to a different conclusion than that agitated by the father.
Ground 6 fails.
Ground 4 – “In relation to paragraph 62 of the Reasons, whilst the learned Judge accepted the [mother’s] denial that the use of the word ‘karma’ was not in relation to the allegations of sexual abuse, the learned Judge made no findings about what the use of that word actually meant in the context of the allegations and her failure to do so is an error which caused her discretion to miscarry.”
The finding relevant to this ground is:
62 At 4.28 pm, i.e., about 40 minutes after arriving home with the children, the mother sent the father a screen shot of a text message sent by the father to the mother on 6 November 2021, “dinner time nanny” and a text that said, “when karma hits you back” accompanied by three laughing emojis. As best I can understand the father’s case, he contends firstly that the mother could not have been concerned about Y making a “disclosure” only 40 minutes before sending him such a text and secondly, that the reference to “karma” was an indication that the mother thought she had evidence against him that she could use to stop him seeing the children. The mother could not recall sending the text message and did not know what she meant by the screen shot and text. By way of possible explanation, the mother offered that as the father used to call her “nanny” as an insult because she is one year older, it might have been a reference to his new relationship with the nanny. The mother rejected the contention that the reference to “karma” was in any way related to the child’s “disclosure”. I accept the mother’s evidence that the reference to “karma” was not related to the child’s “disclosure”.
(Emphasis added)
The asserted error was that the primary judge did not make any finding as to what the use of the word “karma” included. The import of the complaint is that the use of the word “karma” by the mother implies a finding of malice such that she would manufacture allegations of sexual abuse against the father to restrict his relationship with the children. It was open to the primary judge to accept the mother’s explanation for use of the word as credible in that it was not a reference to the child’s disclosure. The father’s contention on the subject matter was not accepted. This finding was open and was not glaringly improbable (Robinson Helicopter Co Incv McDermott (2016) 331 ALR 550). The ground fails.
Ground 3 – “In relation to the learned Judge’s finding at paragraph 58 about the [mother] not questioning the child and the finding that she had was given no weight by the learned Judge causing her to fall into error.”
Ground 5 – “The Reasons are insufficient in relation to the recitation of Dr [M]’s continued involvement in the matter and the Reasons do not identify what weight (if any) is placed on the recitation of evidence at paragraphs 87-89 of the Reasons.”
The onus is on the appellant to identify with precision in the ground the error of the type identified in House. The father submitted that these grounds are self-explanatory as to the type of error. They are not.
In so far as each ground makes complaints as to the giving of any, and if so what, weight to matters of fact is quintessentially for the determination of the primary judge (Gronow).
At the hearing of the appeal the father did not demur from the conclusion that any weight challenge asserted by these grounds in this appeal must fail. That an appellate court may have given them some, less, or more, weight does not establish error of the kind identified in House, unless the outcome is unreasonable or plainly unjust, which is not the case here (Hedlund & Hedlund (2021) FLC 94-065 at [37]). The weight challenge by each of Grounds 3 and 5 fails.
As to the reasons challenge, the mother attended on Dr M with Y when she presented with blood in her underwear and had told the mother that her “vagina is hurting” in June 2021. Dr M advised the mother at that time that she sighted no issues, and that the problem may come from constipation or not consuming enough food or water whilst at the father’s house. The mother accepted Dr M’s explanation for the presentation of Y. The reasons at [87]–[89] give context to the clinical notes of Dr M made in February 2023 recording the mother then conveying to Dr M that she was “very upset” that she did not act on the May 2021 disclosure. This evidence is then considered and evaluated at [108], and at [112] including that “[t]he first ‘disclosure’ made by the child was in May 2021 and did not resurface until January 2023. If the mother were intent on fabricating evidence, it seems illogical to wait nearly two years before making false allegations”. Ground 5 insofar as it promotes a reasons complaint is forlorn.
Ground 7 – “Part of the findings made at paragraph 116 of the Reasons are inconsistent with the findings about unacceptable risk of emotional and sexual harm and those inconsistencies do not ground the ultimate finding made by the learned Judge (as to the issue of unacceptable risk).”
The extent of the content of the father’s Summary of Argument (filed 8 November 2024) in support of this ground, not elaborated at the appeal hearing was:
60.At paragraphs 116 (k) and (o) the learned Judge makes findings under the heading whether the [father] poses an unacceptable risk that the ‘disclosures’ may have come from repeated questioning or from the parental conflict.
61.Those findings are at odds with the ultimate findings made about risk by the learned Judge.
(As per the original)
The reasons of the primary judge at [116] are reproduced in their entirety at [34] of these reasons.
The father did not demonstrate why the conclusions in the two identified sub-paragraphs of the 15 sub-paragraphs at [116] were not reasonably open on the evidence, or why they were “inconsistent” with the determination that the father posed an unacceptable risk to both the children of emotional harm and to Y of sexual harm. The ground fails.
CONCLUSION
The appeal will be dismissed.
COSTS
If the appeal was unsuccessful, the father:
(a)Did not oppose paying the mother’s costs at scale of $20,022; and
(b)Opposed the ICL’s application for costs at scale of $14,044.
The mother did seek her costs on an indemnity basis. She did not comply with the requirements of r 12.13(4) of the Rules and provide her costs agreement with her lawyers to the Court. Nevertheless, there is nothing exceptional about this appeal to justify an order for indemnity costs (see Kohan and Kohan (1993) FLC 92-340).
In opposing the ICL’s application for costs the father submitted that factors militating against the making of a costs order were:
(a)That his appeal was not unarguable. By dismissal of his appeal, he was wholly unsuccessful; and
(b)Because the ICL is taxpayer funded, he ought not pay the ICL’s costs. That submission is contrary to longstanding authority, identifying that s 117(5) of the Act requires the Court to treat legal aid bodies as unfunded (Haward & Haward (2023) FLC 94-147).
The circumstances where the father was wholly unsuccessful in his appeal justify the making of a costs order in the fixed sum as sought by the mother and the ICL.
Orders will be made that within 28 days the father pay the mother’s costs in the sum of $20,022 and the ICL’s costs in the sum of $14,044.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Wilson & Campton. Associate:
Dated: 4 March 2025
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