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 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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…
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CaseChat Overview and Summary
The appeal was dismissed by the court, which upheld the primary judge's decisions regarding the interim and final parenting orders for a child born in 2016 to a couple who began cohabitating in 2006 and separated in 2018. The father had sought sole parental responsibility for the child, while the mother and Independent Children's Lawyer (ICL) contended that the child should not spend any time with the father due to concerns about his capacity to meet the child's emotional needs and a risk of psychological harm. The primary judge accepted the mother's and the ICL's case, making interim orders in October 2021 that the child's residence would be with the mother and stayed the March 2019 interim orders for the child to spend time with the father. In July 2022, the primary judge made final orders confirming the child's residence with the mother and prohibiting the father from having contact with the child.
The father appealed the primary judge's decisions, arguing that the orders were not supported by the evidence and that he was not given adequate notice or an opportunity to respond. The court rejected the father's arguments, finding that the father had notice of the primary judge's inclination to make the interim orders and did not object to them. The court held that the primary judge's findings about the child's safety and the father's parenting capacity were supported by the evidence, including expert opinion evidence that the child's aberrant behaviour was likely due to the father's influence. The court also found that the primary judge did not err in making the interim orders, as the father had not objected to them and had nearly three weeks' notice that they might be made.
The father also sought to adduce further evidence in the appeal, but the court dismissed the application. The court found that the father had not complied with the procedural requirements for addinguce evidence and that the evidence he sought to adduce was not relevant to the grounds of appeal. The father had also sought to give evidence about the mother's failure to comply with an order requiring her to provide updates about the child, but the court held that such issues should be addressed by enforcing the order at first instance, not by setting aside the whole judgment on appeal.
The court concluded that the primary judge's decisions were not erroneous and that the appeal should be dismissed. The father was ordered to pay the mother's costs of the appeal.
The father appealed the primary judge's decisions, arguing that the orders were not supported by the evidence and that he was not given adequate notice or an opportunity to respond. The court rejected the father's arguments, finding that the father had notice of the primary judge's inclination to make the interim orders and did not object to them. The court held that the primary judge's findings about the child's safety and the father's parenting capacity were supported by the evidence, including expert opinion evidence that the child's aberrant behaviour was likely due to the father's influence. The court also found that the primary judge did not err in making the interim orders, as the father had not objected to them and had nearly three weeks' notice that they might be made.
The father also sought to adduce further evidence in the appeal, but the court dismissed the application. The court found that the father had not complied with the procedural requirements for addinguce evidence and that the evidence he sought to adduce was not relevant to the grounds of appeal. The father had also sought to give evidence about the mother's failure to comply with an order requiring her to provide updates about the child, but the court held that such issues should be addressed by enforcing the order at first instance, not by setting aside the whole judgment on appeal.
The court concluded that the primary judge's decisions were not erroneous and that the appeal should be dismissed. The father was ordered to pay the mother's costs of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the appeal is dismissed.Background 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. Proceedings between the parties were commenced by the father in October 2018. 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. 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. 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. 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. 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. 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]).
Evidence
Evidence Before The Court
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 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. 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. 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 On 10 October 2022, the father filed an Amended Notice of Appeal, substantially revising the grounds upon which he appeals. 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. 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. The grounds and sub-grounds are headed in this way:1. Failure to Evaluate Relevant Evidence by Witnesses2. Loss of Objectivity2.1 The Question of Cross Examination2.2The Question of Fabricated Conflict, Administrative Barriers & Alienation2.3Coercive Controlling Behaviour2.4Trivialising the Father's Genuine Concerns2.5The "Non-Finding" of Sexual Abuse3. The Alleged Behaviours as Finding of Fact3.1 The Question of Parental Insight3.2 Single Witness Expert Evidence3.3 Availability of an Actual Psychological Evaluation4. Staying the Time-With Orders4.1 Opportunity to Respond4.2 Failure to Give Reasons5. Failure to follow the least intrusive intervention in the life of [the child]5.1 The Question of Primary Care & Attachment5.2[The child’s] Right to Spend Time-with and Communicate with both Parents5.3[The child’s] Right to Spend Time-with and Communicate with Other Significant People5.4[The child’s] Right to Enjoy His Culture6. The Question of Reopening the Case
Decision
Reasons for decision
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) 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) 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. 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. 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… 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.
Ratio Decidendi
Legal Principle Established
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