Ressam & Benida

[2022] FedCFamC1A 203

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Ressam & Benida [2022] FedCFamC1A 203

Appeal from:

Ressam & Benida [2022] FedCFamC2F 874

Appeal number:

NAA 169 of 2022

File number:

PAC 4744 of 2018

Judgment of:

AUSTIN J

Date of judgment:

9 December 2022

Catchwords:

FAMILY LAW – APPEAL – Parenting – Where the father appeals against orders granting the mother sole parental responsibility for the child and for the child to neither spend time nor communicate with the father – Where the grounds of appeal are a prolix narrative comprising eight pages – Where they are not pleaded in a way which corresponds to recognisable grounds of appeal – Procedural fairness – Where the father’s complaint concerns interim orders not the subject of the appeal – Whether the primary judge failed to take material considerations into account – Where the findings based on acceptance of the mother’s evidence were open – Where the other grounds are miscellaneous grievances and not competent grounds of appeal – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Further Evidence – Where the evidence was available at the time of trial – Where the decision to abstain from tendering it then precludes its receipt as evidence in the appeal – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) 13.39

Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577; [2006] HCA 55

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Smith v NSW Bar Association (No 2) (1992) 176 CLR 256; [1992] HCA 36

Number of paragraphs:

78

Date of hearing:

22 November 2022

Place:

Heard in Sydney, delivered in Melbourne

Counsel for the Appellant:

Mr Shaw

Solicitor for the Appellant:

Britluchot Lawyers

Counsel for the Respondent:

Ms Windsor

Solicitor for the Respondent:

Burridge & Legg Solicitors

Counsel for the Independent Children's Lawyer:

Dr Barnett SC

Solicitor for the Independent Children's Lawyer:

Sarah Bevan Family Lawyers

ORDERS

NAA 169 of 2022
PAC 4744 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR RESSAM

Appellant

AND:

MS BENIDA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	AUSTIN J
DATE OF ORDER:	9 December 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 21 November 2022 is dismissed.

2.The Amended Notice of Appeal filed on 10 October 2022 is dismissed.

3.The appellant shall forthwith pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $3,960.

4.The Independent Children’s Lawyer’s application against the appellant for party/party costs of and incidental to the appeal is 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 Ressam & Benida has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. On 8 July 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders between the parties in respect of their only child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. In essence, the orders discharge all prior orders, grant the mother sole parental responsibility for the child, direct that the child shall live with the mother, declare that the child shall not spend any time with the father, and restrain the father from contacting the child.

3. The father appeals from the orders by way of Amended Notice of Appeal filed on 10 October 2022, which is resisted by both the mother and the Independent Children’s Lawyer (“the ICL”).

4. For the reasons which follow, the appeal is dismissed.

   Background

5. The parties began cohabitation in 2006 and finally separated in September 2018. Their child was born in 2016 and was aged six years when the appealed orders were made.

6. Proceedings between the parties were commenced by the father in October 2018.

7. In March 2019, interim orders were made with the parties’ consent providing for the child to live with the mother and spend substantial time with the father.

8. The trial commenced in late October 2020 and was adjourned part-heard after three days. At that point in time, with the parties’ consent, the primary judge varied the former interim orders to adjust the amount of substantial time spent by the child with the father.

9. Twelve months later, in October 2021, after another three days of hearing, the primary judge reserved judgment, but made interim orders confirming the child’s residence with the mother and otherwise “stayed” the orders made in March 2019 (but not those made in October 2020). It seems her Honour intended, but inadvertently failed, to suspend all prior interim orders made for the child to spend time with the father pending final judgment (at [2] and [31]), delivered nine months later in July 2022.

10. The father began the trial seeking orders giving him sole parental responsibility for the child, for the child to live with him, and for the child to spend substantial time with the mother. He did not advise of any change to his proposal once the trial was complete, but the maintenance of his application in those terms was difficult to reconcile with his earlier consent to the interim orders made in March 2019 and October 2020, providing for the child to live primarily with the mother.

11. The case eventually posited by the mother and the ICL was that the child should spend no time at all with the father, because his lack of insight and impaired parenting capacity prevented him from meeting the child’s emotional needs and he posed a risk of psychological harm to the child. The father contended the orders proposed by the mother and the ICL were “draconian” and unwarranted for these reasons: he and the child enjoyed a “close and loving bond”; he had not been charged with any domestic violence offence; the single expert only hypothesised about the cause of the child’s “severely disturbing behaviour” and did not specifically attribute fault to him; and it was important for the child to maintain a link with his paternal Country C heritage.

12. It was not in contest that the child, despite his tender age, engaged in misbehaviour which was horrifying. For example, he physically assaulted the mother multiple times by punching her in the head and stomach, spitting in her face, trying to strangle her, pulling her hair, pushing her head against a wall, and by brandishing a knife and threatening to cut her throat (at [97]). The mother gave evidence that such behaviour tended to occur upon the child’s return from visits with the father, which evidence the primary judge accepted (at [106]). The mother also gave evidence of hateful comments made to her by the child, which the child said he heard from the father (at [98]). It is not seemingly in dispute that the father failed to comply with interim orders requiring the child to be assessed and to engage in family therapy, which were designed to mollify the child’s misbehaviour (at [107]–[113]).

13. The child’s misbehaviour was the subject of expert opinion evidence given by the single expert. In the upshot, it was her opinion the child’s aberrant behaviour was plausibly due to the father’s influence, even if only unintentional, but was unlikely to be attributable to any underlying medical condition in the child or some flaw in the mother’s parenting capacity, particularly since the child’s behaviour at school was unremarkable. Under cross-examination, the single expert galvanised her opinions and recommended that the child not spend any time with the father so as to guard against the risk of harm he posed (at [128]–[131]). The mother and the ICL endorsed her opinion evidence, which the primary judge accepted (at [144] and [151]–[155]).

    Application to adduce further evidence

14. On 21 November 2022, the father filed an Application in an Appeal seeking to adduce further evidence in the appeal. The application was not filed sufficiently far in advance of the hearing (r 13.39(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), but it is dismissed for reasons other than that procedural irregularity.

15. The father sought to adduce in evidence, in support of Ground 3, the Behavioural Assessment Report in respect of the child dated 20 June 2021. However, the report was available at the time of trial and was not then tendered in evidence. The discussion of the relevant complaint within Ground 3 makes plain why it should not be tendered in the appeal.

16. Otherwise, the father sought to give evidence of his perception about the mother’s failure to comply with Order 6 made by the primary judge, which requires the mother to give him updates about the child’s health and academic progress, advise him of the decisions she makes in the exercise of sole parental responsibility for the child, and provide him with copies of reports related to the child. Even if it be assumed the mother has not faithfully complied with that obligation, the default is remedied by enforcement of the order at first instance, not by setting aside the whole judgment on appeal.

    The appeal

17. On 10 October 2022, the father filed an Amended Notice of Appeal, substantially revising the grounds upon which he appeals.

18. Broadly, he articulates six grounds of appeal, broken down into multiple sub-grounds, all of which are particularised by a prolix narrative comprising eight typewritten pages. In fact, the grounds of appeal are longer than the Summary of Argument filed in support of them, as it comprises only seven pages.

19. Unfortunately, the grounds of appeal are not pleaded “briefly”, as required by the notes within the standardised Notice of Appeal. Nor are they pleaded in a way which corresponds to recognisable grounds of appeal which lie from discretionary judgments (House v The King (1936) 55 CLR 499 at 504–505), in which event they are incompetent.

20. The grounds and sub-grounds are headed in this way:

    1.        Failure to Evaluate Relevant Evidence by Witnesses

    2.        Loss of Objectivity

    2.1      The Question of Cross Examination

    2.2The Question of Fabricated Conflict, Administrative Barriers & Alienation

    2.3Coercive Controlling Behaviour

    2.4Trivialising the Father's Genuine Concerns

    2.5The "Non-Finding" of Sexual Abuse

    3.        The Alleged Behaviours as Finding of Fact

    3.1      The Question of Parental Insight

    3.2      Single Witness Expert Evidence

    3.3      Availability of an Actual Psychological Evaluation

    4.        Staying the Time-With Orders

    4.1      Opportunity to Respond

    4.2      Failure to Give Reasons

    5.        Failure to follow the least intrusive intervention in the life of [the child]

    5.1      The Question of Primary Care & Attachment

    5.2[The child’s] Right to Spend Time-with and Communicate with both Parents

    5.3[The child’s] Right to Spend Time-with and Communicate with Other Significant People

    5.4[The child’s] Right to Enjoy His Culture

    6.        The Question of Reopening the Case

21. Rather than peremptorily dismissing the appeal for an absence of any competent ground, an attempt will be made to address the general thrust of the father’s complaints within the Notice of Appeal and the Summary of Argument in the guise of legal, factual or discretionary error.

22. It is necessary to begin with the grounds which appear to assert the denial of procedural fairness and bias (Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).

    Ground 4

23. This ground asserts that on 8 October 2021, being the sixth day of the trial, the primary judge denied the father “natural justice” and “procedural fairness”, and additionally, failed to give reasons for the interim orders made on that date.

24. On that date, with the trial complete and judgment to be imminently reserved, the primary judge made interim parenting orders which were to operate until judgment was finally pronounced. The interim orders provided for the child to live with the mother and “stayed” the interim orders formerly made in March 2019.

25. Apparently, the primary judge and the parties all thought those orders had the effect of precluding any further interim contact between the child and the father, but they were mistaken because the new orders did not discharge or suspend the interim orders last made in October 2020, which provided for the child to spend substantial time with the father. This ground is therefore misconceived, because it is prosecuted upon the false belief the father was thereby deprived of existing interaction with the child, when he was not. Regardless, even if the interim orders made on 8 October 2021 had operated as was intended by the primary judge so as to preclude the child’s contact with the father, this ground of appeal is still misconceived for several reasons.

26. First, this is an appeal from only the orders made on 8 July 2022; not those made on 8 October 2021. No appeal was brought from the interim orders made in October 2021 so the complaint about them cannot be entertained now. The provisions of s 36(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) do not give the father open slather to challenge earlier interim parenting orders from which an appeal could have been brought.

27. In any event, the primary judge forewarned the parties of her inclination to make the interim orders covering the period while judgment would be reserved, the intended effect of which was to stop the child’s contact with the father. The orders were then made when nobody – not even the father’s counsel – resisted. The father had the chance to be heard, but did not take it. The reasons why the orders were made in October 2021 as an interim measure are evident from the reasons for judgment published to explain the appealed orders later made on 8 July 2022, which orders transform the father’s elimination from involvement in the child’s life from temporary to permanent.

28. The evidence in the trial closed on 14 September 2021. That afternoon, following the single expert giving oral evidence recommending that the child not have any further interaction with the father, her Honour raised the prospect of an order being made “for no time” between the child and the father. The parties and the ICL wanted to re-consider their positions in light of the single expert’s evidence and so the trial was adjourned to 8 October 2021 to finalise the proceedings, with her Honour indicating an expectation that written outlines of submissions would be filed and served in the interregnum.

29. The mother then filed an interlocutory application seeking to suspend the child’s contact with the father pending final judgment, though the application was not actually made returnable on 8 October 2021 (at [30]). The father was represented by counsel on that date, who informed the primary judge he was aware of the recent interlocutory application. The father had not filed any written submissions in the meantime and so his counsel asked for a reprieve of seven days within which to do so, due to his belated engagement.

30. The primary judge indicated she had neither seen the mother’s interim application nor the affidavit filed in support of it but, irrespective, said her inclination was to make interim orders severing the child’s contact with the father due to the nature of the evidence which had been adduced in the trial. Her Honour said:

    HER HONOUR: … I thought that that would be an appropriate order to be made between now and whenever judgment is reserved because I have serious concerns about this child’s safety. I’m not even aware of – I haven’t seen that application … and I don’t know what evidence is in support of that but I think in circumstances where there are applications for no ... and the evidence that has been given in these proceedings on a final basis, it is in – provides ..... an order saying the time between him and the father ought to be made today and in the … [to counsel for the father], I will, of course, hear from you about that. … Yes. But I’m not talking about that [the mother’s interim application]. I’m talking about – that I consider is appropriate that the time between – that any orders ..... currently in place, the time between [the child] and the father, given the evidence at final hearing and the applications that are now made … those orders ought to be ..... pending the final decision

    (Transcript 8 October 2021,  p.295 lines 32–38; p.296 lines 19–22 and 26)

    (Emphasis added)

31. Having heard such sentiments, the father’s counsel said:

    [COUNSEL FOR THE FATHER]: I can appreciate that, your Honour. So therefore there’s not much point in one putting on a response to an application…in those circumstances.

    …

    [COUNSEL FOR THE FATHER]: Well, I suppose the next point is can I obtain an indulgence, at least to put in to some fashion that is orderly and I hope cogent ..... that can be done for another time or say, seven days on which to complete that work.

    (Transcript 8 October 2021, p.296 lines 28–29, 33 and 37–39)

    (Emphasis added)

32. The primary judge acceded to the request for more time and granted an adjournment of 14 days, but still made interim orders in the terms outlined.

33. As is evident from those exchanges, the father’s counsel accepted it was open to the primary judge to react to the alarm caused by the evidence elicited during the trial – more particularly, her Honour’s “serious concerns” about the child’s safety in the father’s care – by making the interim orders which had been foreshadowed. Counsel did not resist that course being taken, but simply sought more time within which to file written submissions about the final orders which ought be made to conclude the proceedings.

34. It is incorrect for the father to assert in the appeal that:

    …her Honour [made the interim orders] without giving the father or his legal representative prior notice of her intention to do so and did not permit the father to make any submissions in relation to that particular course of action…

35. The father had nearly three weeks’ notice that the orders might be made, but did not submit against them, either orally or in writing. The primary judge made it clear on 14 September 2021 that her Honour was inclined, but had not resolved, to make the interim orders. The father failed to file any written submissions to address that issue, despite an invitation to do so. The orders were then not made until 8 October 2021, at which time the father’s counsel accepted it was open to make them and acquiesced to that course.

36. After judgment was reserved and the father was permitted 14 more days within which to file his final written submissions, he filed an interlocutory application seeking even more time within which to file the submissions. The application was listed on 3 November 2021 and consensually granted (at [32]). His submissions were then duly filed, but they made no complaint about the interim orders made on 8 October 2021.

1. There was no denial of procedural fairness and the explanation for why orders were made to terminate the child’s interaction with the father were made plain in the reasons for judgment published with the appealed final orders.

   Ground 2

2. By asserting the primary judge’s “loss of objectivity”, the father seemed to be contending that her Honour lacked impartiality and was biased against him, though neither the ground of appeal nor the Summary of Argument expressly alleged actual or apprehended judicial bias.

3. When the issue was raised in oral argument, the father disavowed any allegation of judicial bias and instead re-caste the ground to be a complaint of the primary judge’s failure to take material considerations into account.

4. As argued, considering both the oral and written submissions in aggregation, the complaint sprang mainly from findings and observations expressed within the reasons for judgment, about which it was contended:

   (a)at [35] of the reasons, her Honour does not mention his case theory of how the mother “repeatedly used fabricated conflict and administrative barriers to unilaterally impose her will on [the child’s] health and educational outcomes”;

   (b)the finding of fact at [42] in the reasons was mistaken;

   (c)the primary judge failed to properly evaluate the father’s contention about the “fabricated dispute” and the failure to consider the mother’s “use of repeated litigation with respect to Family Violence”, respectively at [65]–[83] of the reasons;

   (d)the finding at [105] in the reasons was “glaringly improbable”;

   (e)the primary judge trivialised the father’s “genuine concerns”;

   (f)the primary judge “appears” to find the father sexually abused the mother at [71] of the reasons when no such finding was sought by her; and

   (g)the primary judge found at [147] in the reasons that the father perpetrated family violence without reference to the civil standard of proof.

5. At [35] of the reasons, her Honour simply summarised the essence of the father’s case, but the omission to mention more specific particulars of his case theory does not render the summary incorrect.

6. At [42] of the reasons, her Honour correctly observed how, despite there being considerable factual discrepancy between the parties’ accounts of past events, neither was the subject of much challenge in cross-examination by the other. The content of the transcript bears out the observation as being correct.

7. At [65]–[87] of the reasons, the primary judge discusses the evidence under the heading of “Family Violence”. Her Honour found the father had behaved in a coercive and controlling way over a prolonged period. Her Honour found the mother did, at times, appear “volatile and aggressive”, but made no counterpart finding of family violence against her.

8. The primary judge expressly preferred the mother’s evidence over the father’s evidence (at [43]–[46]), which entailed no error, so any findings based upon acceptance of her evidence were open, even though he may disagree with them. The ultimate finding was made because it was “more likely than not” the father had perpetrated family violence (at [147]), which terminology of likelihood (and hence probability) engaged the civil standard of proof.

9. In the course of the discussion about family violence, the primary judge did make curiously inconsistent statements about whether or not a finding was made on the balance of probabilities of the mother’s sexual abuse by the father (at [70]–[71]), but that anomaly was immaterial to the validity of the overall finding of family violence made against him (at [147]).

10. At [105] of the reasons, the primary judge observed how a party’s forbearance from cross-examining a witness reasonably allows an inference to be drawn that the party does not challenge the reliability of the evidence. That was not a “finding” so described, but rather the recognition of orthodox principle. Submitting the “finding” was “glaringly improbable” does not convert an incompetent complaint to competent. The mother was not cross-examined by the father’s lawyer about the evidence she gave concerning the child’s aberrant behaviour, in which case it was properly open to acceptance, as it was (at [104]).

11. The additional complaint about the primary judge trivialising the father’s “genuine concerns” was not elaborated by specific reference to the transcript or any paragraph within the reasons for judgment. Even if it is the father’s honest perception, it is not objectively vindicated.

    Ground 6

12. About seven months after judgment was reserved, the primary judge re-listed the proceedings of her own volition on 9 May 2022 and told the parties this:

    HER HONOUR: … The matter has been reserved for a significant period of time and in reviewing the evidence when I have attempted to come to a decision in this matter I’ve come to the view particularly now that so many months have passed since the final hearing was reserved that I really would be assisted by some further evidence, particularly as time between [the child] and his father was suspended in October 2021. With that in mind, it is my view that the court would benefit from a child impact report being ordered for the purpose of ascertaining what impact there has been on [the child] of not spending time with the father since October 2021, whether his behaviour appears to be improved and any other matters that the family – sorry – that the court child expert would deem appropriate. I did have – when I was thinking about this I did have some concerns as to how that – those interviews might occur.

    (Transcript 9 May 2022, p.306 line 46 to p.307 line 10)

    (Emphasis added)

13. Self-evidently, her Honour was giving consideration to re-opening the evidence and invited the parties to express their views about it. The matter was stood-down for about two hours for the parties and the ICL to consider their positions.

14. Upon resumption, the mother said she neither opposed nor consented to the evidence being re-opened, but her distaste for the idea was made quite clear. Similarly, the ICL did not take a position one way or the other. On the other hand, the father expressed his keenness to re-open the evidence. Her Honour ultimately decided not to re-open.

15. The court event that day was later described in the reasons for judgment in these terms:

    33.Almost 6 months after the Court reserved its decision, in May 2022, on its own motion, the Court relisted the matter in order to hear from the parties as to whether the matter should be re-opened, an order made for a Child Impact Report, and further evidence from the parties. After hearing from the parties and the ICL, the proceedings were not re-opened and the Court’s decision remained reserved.

16. This ground of appeal complains of the decision to not re-open the evidence, even though the prospect of its occurrence was entirely the primary judge’s idea. That her Honour ultimately decided against it, despite the father’s wishes, does not necessarily demonstrate appealable error. The principles which govern the decision to re-open evidence while judgment is reserved are well known. The primary consideration is whether it would cause embarrassment or prejudice to the parties (Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 267). The father did not submit to the primary judge he would be embarrassed or prejudiced if the evidence was not re-opened.

17. The father’s complaint in oral argument seemingly devolved to no more than that the primary judge did not do what he wanted, but the submission within his Summary of Argument was couched in these terms:

    29.By her own act her Honour denied herself the advantage which would have been for the benefit of the child obtaining a Child Impact Report Family Consultant despite the support from the father for such a course (sic).

    (Father’s Summary of Argument filed 10 October 2022)

18. The initial premise for consideration being given to re-open the evidence was, principally, the acquisition and admission of additional expert evidence following the child’s further interview by the Family Consultant. However, as the child had not seen the father at all for the preceding six months, her Honour was seemingly persuaded the child’s further engagement in the litigation that way would not be worthwhile. No error is demonstrated. The father’s submission in the appeal that any such further expert evidence might have revealed some form of change in the child’s behaviour over the preceding seven months did not expose appealable error.

    Ground 1

19. This ground complains that the primary judge failed to evaluate the evidence given by two witnesses – the paternal grandmother and a friend of the parties.

20. In effect, the complaint must be one of discretionary error by failing to take relevant considerations into account. Although it is submitted that the evidence of both witnesses was “relevant”, and more boldly, that it “strongly militated against” the orders made by the primary judge to sever all interaction between the child and the father, he conspicuously failed to demonstrate how that was so. The submission remained a bare contention.

21. In general terms, the paternal grandmother gave evidence about the mother’s “mood swings and low resilience” and was complimentary about the extent of the father’s attention to the child and the support he afforded the mother. She said she had not seen the father misbehave in the manner the mother alleged. Similarly, the friend gave evidence of how she had observed the father being supportive of the mother and his active participation in the child’s care. Their evidence largely comprised expressions of opinion about the strength of the child’s bond with the father, which was not controversial, and the father’s parenting capacity, about which issue the single expert had a completely different view. Their evidence was current to only March 2019, when their affidavits were filed, which was only about six months after the parties’ separation and well over two years before the trial concluded.

22. Such evidence was relevant, and hence admissible, as it bore upon the material considerations prescribed by s 60CC of the Act. Evidence is relevant if it has the merest capacity to influence the resolution of material factual disputes (IMM v The Queen (2016) 257 CLR 300). However, evidence does not necessarily carry significant probative weight just because it is relevant.

23. The submission that the evidence of the witnesses strongly militated against the appealed orders is hyperbole. The orders precluding contact between the child and the father were founded principally upon findings of the father’s abusive and controlling behaviour in reliance upon the mother’s factual evidence, which conduct amounted to “family violence” (at [43], [46], [65], [71] and [85]), and also the opinion evidence given by the Family Consultant about the father’s incapacity to meet the child’s emotional needs, culminating in her recommendation that the child not spend any time with the father to avert the risk of harm he posed (at [128]–[131], [144] and [151]–[155]). The strength of such evidence, which it was open to accept, was not meaningfully counteracted by the evidence given by the paternal grandmother or the friend, so the asserted importance of their evidence fell away. As it was unimportant, it need not have been discussed or “evaluated” in the reasons for judgment (DL v The Queen (2018) 265 CLR 215 at [32]–[33] and [131]; Fox v Percy (2003) 214 CLR 118 at 132).

    Ground 3

24. This ground contains three miscellaneous grievances but, in truth, none of them are competent grounds of appeal.

25. The first complaint is that, by “focussing her discretion on trying to find unacceptable risk on the part of the father”, the primary judge “lost sight of contrary compelling inferences and incontrovertible facts” which supposedly impelled a finding that he “had proper and genuine insight” into the child’s physical and psychological wellbeing.

26. The chain of logic is ill conceived to begin with because a finding that the father possesses insight would not necessarily follow from the absence of any finding that he poses a risk of harm to the child, but the assertion of the primary judge’s craven intent to sustain the mother’s case against the father in the face of contrary compelling evidence is insulting, if not recklessly unethical. The submission is rejected.

27. The second complaint is the primary judge’s reliance upon the single expert report, prepared in February 2020, was “unfair on [the child]”. This too is rejected.

28. The trial began in October 2020. Nobody sought an updated report, either before or during the trial. The single expert was not cross-examined until later in the trial in September 2021. The father did not suggest to her that the child was prejudiced in some way because the single expert report had become dated. In fact, the father made his final written submissions in November 2021 and called to aid certain parts of the single expert report and the single expert’s oral evidence. It was the primary judge who canvassed the prospect of an updated report in May 2022, before deciding against it.

29. The third complaint concerns the Behavioural Assessment Report which the father wanted to adduce in evidence in the appeal. The report is referred to generically in the reasons for judgment (at [109]). The father asserts it should have been admitted into evidence at the trial, though it was not. This complaint is not sustainable either.

30. As the primary judge explained (at [107]–[109]), at a point in time when the trial was part-heard, the parties approached the Court for an order compelling them to jointly procure an expert’s behavioural assessment of the child. Consent orders were therefore relevantly made in these terms on 7 June 2021:

    2.        That:

    a.Both parties must attend an appointment set for 16 June 2021 at D Psychology to commence a behavioural assessment of the child;

    b.Both parties must thereafter comply with all reasonable directions of D Psychology including attending further appointments;

    c.The parties are equally liable for all associated fees.

    3.The behavioural assessment pursuant to order 2 is to continue even if either party does not participate in it, noting this is without admission.

    4.No Neither party is to seek to obtain or rely on a report by D Psychology to be relied on in the proceedings for the purposes of the substantive proceedings.

    (As per the original)

31. The behavioural assessment report was then furnished to the parties in June 2021, but was not tendered in evidence in the trial. The omission to tender it was deliberate, though the reason for that decision is speculative. Irrespective, the injunction within Order 4 precluded it. Neither the parties nor the ICL submitted for the discharge of the injunction before the primary judge. The submission in the appeal that the primary judge, of her own volition, ought have “called for the report” (to presumably admit it into evidence contrary to Order 4) is rejected. The intentional decision to abstain from tendering the report in evidence at the trial precludes its receipt as evidence in the appeal (CDJ v VAJ (1998) 197 CLR 172).

32. A further complaint, not pleaded in the Notice of Appeal but nonetheless asserted in the father’s Summary of Argument, is that the primary judge erred by finding the single expert expressed an opinion that the risk posed he posed to the child could not be satisfactorily ameliorated by less drastic means such as reducing or supervising the child’s time with him. However, the primary judge’s summary of the single expert’s evidence was reasonably accurate (at [128] and [155]) and the father’s criticism is misplaced, as the following excerpts of the single expert’s oral evidence reveals:

    [COUNSEL FOR THE ICL]: … [W]hat implications do you say that should have on the amount of time that [the child] ought to be spending with his father, if any?---

    [THE SINGLE EXPERT]: If it’s at the level and [the child] is acting out, I would either have very limited to – probably I would leave – lean towards no time more than – more than time.

    …

    [COUNSEL FOR THE ICL]: … [D]o you still stand by your recommendations as indicated in your report about the amount of time, or does it cause you to want to change those recommendations?---

    [THE SINGLE EXPERT]: It causes me to rethink my recommendations, yes.

    …

    [COUNSEL FOR THE ICL]: All right. And do you have a view as to how much time [the child] ought to spend with his father?---

    [THE SINGLE EXPERT]: If the behaviour was continuing, the – the detrimental impact on [the child] in terms of his wellbeing moving forward in psychological wellbeing, emotional wellbeing, schools, I would suggest that it would be limited time on one day if there was going to be time. Or if there’s veracity to what was in [the mother’s] affidavit, I would recommend no time.

    …

    [COUNSEL FOR THE ICL]: If I’ve understood your evidence correctly, you say that in light of what you now know, you would be recommending either no time between [the child] and his father or very minimal time. Am I right in that?---

    [THE SINGLE EXPERT]: Yes, if I had done the family report now, knowing the information that I’ve been given, that would be my recommendation, yes.

    …

    [COUNSEL FOR THE ICL]: So do I understand that to mean that there’s still a concern that even if the parents  and [the father] engaged in these programs it still may not change his behaviour, is that what you’re saying, the concern remains?---

    [THE SINGLE EXPERT]: Yes …

    …

    [COUNSEL FOR THE FATHER]: [To the Family Consultant], do you agree that the child spending significant time with the father would promote the child’s development, academic and social psychological wellbeing?---

    [THE SINGLE EXPERT]: Yes. If there’s no conflict or limited conflict.

    …

    [COUNSEL FOR THE MOTHER]: Would you consider that the benefit of lessening that time with his father is the long-term would outweigh the short-term disappointment at not spending time with his father as a young child? Would you consider that the long-term benefits to him of ceasing a – what might be found to be a manipulative and destructive relationship outweigh the short-term disappointment of not seeing his father on a more regular basis?---

    [THE SINGLE EXPERT]: Yes, it would.

    …

    [THE FAMILY CONSULTANT]: … The best thing is for him to have a relationship with both parents, for his own self and for their wellbeing. But if the conflict and the behaviour is going on – as – as alleged at the moment – then that negative outweighs the benefit, unfortunately.

    …

    HER HONOUR: So, really, whether he’s spending one day a fortnight, or one day a week, or five days a week, or five days a fortnight, the risk to [the child] is the same, as opposed to there being no time?---

    [THE SINGLE EXPERT]: If it continued, yes. I – I think what all you’re doing is limiting the amount of time that, if it was happening, that [the father] could do that, like, in terms of the number of days that he could do that if he was speaking out against the mother, saying things like that she alleges in her affidavit. You’re limiting the amount of time that [the child] is exposed to that, which could lessen the risk. But there’s still a risk if it’s happening.

    HER HONOUR: Is that a likely risk?---

    [THE SINGLE EXPERT]: Yes, I would say so.

    …

    [COUNSEL FOR THE FATHER]: … [I]n your opinion, the only possible situation to manage the risk would be to reduce or actually the father not – the child not to have any time with the father or there is other possible – possibility of managing this risk if the father continues to see the child?---

    [THE SINGLE EXPERT]:If the father was able to meaningfully engage with the behaviour change program and show insight then change his behaviour, then you could limit the risk. I think [the child], if this is – if this has – firstly, I think [the child] would need some support or some counselling to reprocess this information and to understand that he’s safe with his mother and that they’re changing their relationship so he can have a relationship with both of them. If that was able to happen then that would be a positive thing towards [the child] spending time with both parents.

    (Transcript 14 September 2021 p.260 lines 16–19, 39–41; p.261 lines 1–6; p.263 lines 31–35, 45–47; p.266 lines 37–39; p.268 lines 38–43; p.273 lines 26–28; p.274 lines 11–18 and 27; p.277 lines 1–10)

    (Emphasis added)

1. It is impossible to reconcile such expert opinion evidence with the complaint made by the father under the rubric of this ground.

   Ground 5

2. Again, this ground contains a loose collection of complaints.

3. The first is that the primary judge wrongly found the mother had been the child’s primary carer upon the strength of her evidence. The father’s disbelief of the mother’s evidence does not preclude its acceptance by the primary judge. As mentioned earlier, her Honour explicitly preferred the mother’s evidence to the father’s in the event of conflict (at [43]–[46]), which course was open, particularly in this instance when the single expert gave corroborative evidence about the child’s attachment to the mother. The primary judge still acknowledged the importance of the child’s attachment to the father (at [133]) and how the severance of their relationship would have a “negative and significant” affect upon him, though that consideration was outweighed by the need to protect the child against the identified risk of harm (at [143]).

4. The father next contended that the order severing the child’s interaction with him had gone “far beyond the requirements of protecting the child from harm” in accordance with the exhortation contained within s 60CC(2)(b) of the Act. The proposition is rejected, given the valid findings made about the risk of harm posed by the father to both the child and the mother on account of his propensity to commit family violence and his impaired parenting capacity. The alleged failure to explain that outcome with sufficient reasons is also rejected. One can readily discern from the reasons for judgment why the orders were made, which is all that is required of the reasons (Bennett and Bennett (1991) FLC 92-191 at 78,267).

5. The father additionally submits the reasons do not explain the severance of the child’s relationship with the paternal grandmother, but that is because no injunction was made to restrain the child’s interaction with the paternal grandmother. The primary judge acknowledged the child’s possible loss of connection with the extended paternal family (at [143]). Any future interaction between the child and the paternal grandmother will be determined by the mother as an incident of the exercise of her sole parental responsibility. It might not occur if she perceives the paternal grandmother to be an apologist for the father. The father made no application for orders requiring the child to spend time with other paternal family members. The primary judge could not arbitrarily make orders to that effect.

6. Lastly, the father complains that the severance of the child’s relationship with him “alienates” the child from his paternal Country C heritage. The simple answer is that the primary judge took that feature of the evidence into account, but it did not “tip the balance” against the orders made to protect the child (at [148]). The factor was therefore not overlooked. The father’s complaint is about the implications of the outcome, rather than the validity of the outcome.

   Disposition

7. The appeal is dismissed for lack of merit.

8. In that event, the mother and the ICL both sought orders compelling the father to pay their party/party costs of and incidental to the appeal. Both the mother and the ICL were recipients of grants of legal aid and both sought sums of only $3,960.

9. Notwithstanding the father’s meagre financial circumstances (s 117(2A)(a)), he should pay such modest costs incurred by the mother. Quite apart from the unsatisfactory disparity between the father’s grounds of appeal, his written argument, and his oral argument, the appeal was wholly unsuccessful and, in truth, should never have been brought (ss 117(2A)(c), 117(2A)(e) and 117(2A)(g)).

10. However, no order can be made requiring the father to pay the ICL’s costs of the appeal because I am satisfied, on the basis of the father’s unchallenged submissions about the state of his financial affairs, that he would suffer financial hardship if ordered to bear a proportion of the ICL’s costs (s 117(4)(b)).

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       9 December 2022