Saska & Radavich
[2016] FamCAFC 179
•1 September 2016
FAMILY COURT OF AUSTRALIA
| SASKA & RADAVICH | [2016] FamCAFC 179 |
| FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Proper interpretation of definition of family violence in s 4AB(1) of the Family Law Act 1975 (Cth) (“the Act”) – Whether mother a member of the family of the father within the meaning of s 4AB(1) – Father’s foreshadowed contention that absent findings of the existence of a de facto relationship or shared residence the mother not a “family member” of the father and that his conduct could not constitute “family violence” as defined – Meaning of “family member” as defined in s 4(1AB) – Mother a “family member” of the father by operation of s 4(1AB) – Whether presumption in s 61DA(1) applied – Whether s 65DAA of the Act ought to have been applied – Error of fact contended for by the father – Father’s contentions on appeal as foreshadowed abandoned in the course of argument of the appeal – Appeal not abandoned and hence contentions dealt with – Costs of appeal – No merit in appeal – Appeal dismissed – Costs orders in favour of respondents. |
| Family Law Act 1975 (Cth) |
| De Winter & De Winter (1979) FLC 90-605 |
| University of Wollongong v Metwally (1984) 158 CLR 447 |
| APPELLANT: | Mr Saska |
| RESPONDENT: | Ms Radavich |
| INDEPENDENT CHILDREN’S LAWYER: | Mr J Haddock |
| FILE NUMBER: | CAC | 224 | of | 2014 |
| APPEAL NUMBER: | EA | 60 | of | 2015 |
| DATE DELIVERED: | 1 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Murphy & Kent JJ |
| HEARING DATE: | 1 September 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 March 2015 |
| LOWER COURT MNC: | [2015] FCCA 749 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr B Levet |
| SOLICITOR FOR THE APPELLANT: | Des Leyden Law & Migration | ||
| FOR THE RESPONDENT: | Appearing in person | ||
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr J Haddock, Legal Aid ACT | ||
Orders
Leave is granted to the appellant to file and rely upon the amended notice of appeal dated 29 September 2015.
The appeal against the orders made by Judge Hughes on 31 March 2015 be dismissed.
The appellant pay the costs of the respondent and the independent children’s lawyer of and incidental to the appeal, to be assessed if not agreed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saska & Radavich has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 60 of 2015
File Number: CAC 224 of 2014
| Mr Saska |
Appellant
And
| Ms Radavich |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
KENT J
On 31 March 2015 Judge Hughes made final parenting orders[1] concerning the child, born in 2011, following the trial of parenting proceedings between the child’s parents, Mr Saska (“the father”), Ms Radavich (“the mother”) and the lawyer independently representing the child’s interests in the proceedings (“the ICL”).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”)
Those orders included an order that the mother have sole parental responsibility for the child.
The trial judge found (reasons at [191] to [195]) that the father’s behaviour towards the mother on 4 December 2013 (when he assaulted and verbally abused her) amounted to “family violence” within the meaning of s 4AB of the Act. The trial judge also there recorded findings as to the father’s various behaviours which the trial judge found coerced and controlled the mother and which thus constituted, the trial judge found, “family violence” as defined.
The trial judge concluded that the “family violence” as found by her had the result that the presumption in s 61DA(1) of the Act (presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child) did not apply (s 61DA(2)). The trial judge found that even if the presumption had applied, it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s 61DA(4)) (reasons at [205] and [206]).
The determinative issue on the father’s appeal from the parenting orders made (by reference to the amended notice of appeal he was given leave to file and rely upon dated 29 September 2015) is the proper interpretation of s 4AB(1) (definition of family violence); in conjunction with s 61DA (the presumption referred to); and s 65DAA of the Act (the Court to consider child spending equal time or substantial time with each parent in certain circumstances).
The father’s central contentions foreshadowed by his amended notice of appeal were, in summary and paraphrased form:
a)That because the trial judge did not make a finding that the parents were, or had been, in a de facto relationship, or a finding that the parents regularly reside or had resided together, it could not be concluded that the mother was a member of the father’s family for the purposes of s 4AB(1) of the Act;
b)It follows that an assault by the father upon the mother; and behaviours by the father that coerced or controlled the mother; could not constitute “family violence” within the meaning of s 4AB(1) because the mother was not a member of the father’s family;
c)Because, absent the findings referred to, the father’s conduct would not constitute “family violence” within the meaning of the Act, the trial judge erred in finding that the presumption in s 61DA(1) did not apply;
d)The trial judge erred in “rebutting” the s 61DA(1) presumption;
e)The presumption applied and the trial judge was thus bound to apply s 65DAA of the Act, and erred in failing to do so.
In the course of argument of the appeal, counsel for the father abandoned the central contentions referred to. In other words, counsel acknowledged on behalf of the father, that his amended notice of appeal and summary of argument in support of it proceeded on the misconception that the findings made by her Honour as to “family violence” within the meaning of the Act were not legitimate. However, as the appeal itself was not abandoned, these contentions are dealt with for completeness.
Meaning of “family violence” and “family member”
Section 4AB(1) of the Act expresses the definition of family violence as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(emphasis added)
Section 4(1AB) of the Act identifies when a person is a member of the family of another person for the purposes of, inter alia, s 4AB of the Act. Section 4(1AB) relevantly provides:
4(1AB) For the purposes of:
(a) the definition of step‑parent in subsection (1); and
(aa) section 4AB; and
(b) paragraphs 60CC(3)(j) and (k); and
(c) sections 60CF, 60CH and 60CI;
a person (the first person) is a member of the family of another person (the second person) if:
(d) the first person is or has been married to, or in a de facto relationship with, the second person; or
(e) the first person is or has been a relative of the second person (as defined in subsection (1AC)); or
…
(h) the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or
(i) the first person is or has been a member of the family of a child of the second person.
(emphases added)
Grounds 1 to 4 of the father’s amended notice of appeal rested upon the contention that, (focusing only upon subparagraphs (d) and (h) respectively of s 4(1AB)), absent a finding by the trial judge that the parents had been in a de facto relationship; or alternatively, a finding that they ordinarily or regularly reside or resided with one another; the mother was not a member of the father’s family within the meaning of s 4AB(1). Hence the father foreshadowed the contention that the subject assault by the father upon the mother, and the behaviours by the father that coerced or controlled the mother, could not constitute “family violence” within the meaning of the Act.
The challenge in counsel’s oral argument of the appeal expanded somewhat to the effect that s 4AB(1) of the Act was to be read conjunctively, when plainly, by the words of that section, that is not so. It was part of counsel’s concession, ultimately, that it was not so and the argument could not be pursued.
Otherwise, no challenge was foreshadowed on the appeal to the effect that the actual behaviours of the father, as found by the trial judge, were not capable of meeting the definition of “family violence” if the mother was a member of the father’s family within the meaning of the provisions.
As it is relevant to the question of costs and the late withdrawal, in effect, of the foreshadowed arguments on appeal, I propose to deal with the father’s contention that the mother was not a member of the father’s family for the purpose of s 4AB(1) of the Act.
In my judgment, it can be seen that the father sought to mount an argument on appeal which not only was not raised by the father before the trial judge but which is directly contrary to the case he advanced at trial[2].
[2] See University of Wollongong v Metwally (1984) 158 CLR 447
At [2] of the reasons, the trial judge said:
2.The parties were in a relationship for about three years between early 2008 and January 2011. The father said they lived together for that period. The mother said they never lived together but, whether or not that is true, it is clear from her evidence that the father spent a lot of time in her home, including sleeping there. The parties agree their relationship ended in January 2011. Their son, [the child], was born [in] 2011.
(emphasis added)
That aspect aside, it is unnecessary to determine whether the above finding at [2] is a finding that the mother had resided with the father within the meaning of s 4(1AB)(h); or whether such a finding is even a necessary precondition to the findings of “family violence” made by the trial judge, as there are other more obvious reasons for concluding that the mother is a member of the father’s family for the purposes of s 4AB(1).
It can be readily demonstrated that the father’s contention, upon which each of his foreshadowed grounds of appeal depended was always doomed to fail, deriving, as they do, from a misconceived interpretation of s 4(1AB) of the Act.
Section 4(1AC) relevantly provides that for the purposes of subsection (1AB), “a relative of a person” includes “a father” and “a mother” of the person (subparagraph (a)) or “a son” of the person (subparagraph (b)).
The combined effect of s 4(1AB)(e) and s 4(1AC) is that for relevant purposes:
a)The child is a member of the family of the father, and vice versa; and
b)The child is a member of the family of the mother, and vice versa.
It was never in issue in the proceedings that, at all material times, the mother ordinarily or regularly resided with the child, a member of the family of the father within the meaning of these provisions.
Thus, by operation of subparagraph (h) of s 4(1AB) the mother was, at all material times, a member of the family of the father.
Further, within the meaning of subparagraph (i) of s 4(1AB) each of the mother and the father, respectively and alternatively, “is or has been a member of the family of a child of [the other]”.
It follows that by operation of either of these subparagraphs, as a matter of law the mother was at all material times, for the purposes of s 4AB of the Act, a member of the father’s family or a “family member” as there referred to.
No findings of the kind contended for by the father, foreshadowed by his arguments on appeal, were a necessary precondition to the trial judge’s conclusion that the assault and behaviours of the father earlier referred to constituted “family violence” within the meaning of the Act, because no issues were joined between the parties on the fundamental matters of fact, advanced by both parties at trial, upon which subparagraphs (h) and (i) of s 4(1AB) operated by force of law.
Grounds 1 to 4 inevitably had to fail.
The “presumption” in s 61DA(1) of the Act
Section 61DA(1) of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Subsection (2)(b) relevantly provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in “family violence”.[3] Subsection (4) relevantly provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[3] As defined in s 4AB of the Act
The trial judge’s conclusions as to the s 61DA presumption were expressed at [205] and [206] of the reasons as follows:
205.When making any parenting order the court is required to apply a presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence and may be rebutted by evidence that satisfies the court that it is not in the best interests of the child. An order for equal shared parental responsibility requires each parent to consult the other about major long-term issues concerning the child and to make a genuine effort to reach a joint decision in relation to the issue.
206.In this case the presumption does not apply because there has been family violence but even if it did, I am satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility because there is no reasonable prospect of them being able to sensibly discuss major long-term issues concerning the child and to attempt to reach a joint decision about them. The mother has made sensible decisions for the child to date. She has a good understanding of his needs and in my view can be trusted to continue to make appropriate long-term decisions for him. If she were required to consult with the father, he is likely to attempt to dominate and control the decision-making and hound her until her will is overborne. The only sensible resolution in my view is to give the mother sole parental responsibility for making all major long-term decisions concerning the child.
It is clear that the trial judge’s reference to “family violence” in [206] was a reference to, at the least, her Honour’s findings at [191] to [195] of the reasons when that topic is specifically discussed. It can also be taken to be a reference by the trial judge to her findings at [173] discussing the child’s exposure to parental conduct, quoted specifically later in these reasons. As will be seen, the trial judge there finds “[t]he child has been exposed to his father physically and verbally abusing his mother and verbally abusing his sister, his brother and his sister’s boyfriend, all of whom are loved by the child.”
The trial judge was undoubtedly correct in concluding that the consequence of her findings as to family violence activated subsection (2)(b) of s 61DA, with the consequence that the presumption did not apply.
Rebuttal of the presumption - the father’s misconception
By ground 5 of his amended notice of appeal, the father foreshadowed a contention that in respect of the presumption in s 61DA(1) of the Act, the trial judge erred in finding that “any such presumption was effectively rebutted pursuant to Section 61DA(4) of the Act.”
As already noted, the trial judge specifically found (reasons at [206]) that the presumption did not apply by reason of the findings as to family violence. That was plainly correct. That is, by operation of s 61DA(2) the presumption did not apply. The trial judge further expressed her satisfaction that, even if the presumption had applied, it would not be in the child’s best interests for his parents to have equal shared parental responsibility.
Plainly, the trial judge did not rely upon s 61DA(4) to rebut the presumption which the trial judge had already determined, correctly, did not apply by reason of the findings as to family violence and s 61DA(2). Properly understood, all the trial judge expressed at [206] is that if the presumption had applied, her Honour would have relied upon s 61DA(4) to rebut the presumption in the best interests of the child.
It was argued by the father in his written summary of argument that the finding at [206] “is significantly at odds with Her Honour’s comments” (at reasons [177]) that “the parties managed to make decisions about the child’s care arrangements without any court orders for more than three years”.
That reference by the father is highly selective and ignores other context referred to by the trial judge. Her Honour’s relevant “comment” in full at [177] of the reasons, which actually records findings of fact and not “comment”, is as follows:
…The parties managed to make decisions about the child’s care arrangements without any court orders for more than three years. The mother enrolled the child in childcare without consulting the father. However it is unlikely the father would have agreed to the enrolment given his strong opinion that the child should only be cared for by his parents. The father attempted to have the child moved to a different childcare centre in mid-2013 without any reference to the mother. I will return to these issues when considering the allocation of parental responsibility.
By reference to the orders made (orders (21) and (22)) for each parent to undertake psycho-educational counselling (in the context of advancing only a partial/selective quotation of what appears at [198] of the reasons), a further argument foreshadowed by the father was that:
a)In view of the orders for counselling “it could hardly be said that there was no reasonable prospect of them [the parents] being able to sensibly discuss major long term issues concerning the child”; and
b)That the presumption should not be rebutted “lightly”; and
c)
That the trial judge’s findings “about difficulties concerning
co-operation in relation to joint decisions in relation to the child are not sufficient to found a rebuttal of the presumption contained in
Section 61DA(1) of the Act.”
Whilst for the reasons already discussed, the father’s foreshadowed central contention that the trial judge “rebutted the presumption” is entirely misconceived, this complaint is engaged with to demonstrate that it was well open to the trial judge, within the exercise of a discretion, to conclude on the findings her Honour made, that an order for equal shared parental responsibility would not be in the child’s best interests, irrespective of the presumption not applying.
What the trial judge actually recorded at [198] of the reasons is as follows:
…For the first three and a half years of the child’s life the mother displayed a responsible attitude and a capacity to support the child’s relationship with his father. Although she has expressed hostile views about the father in the last 12 months, including in the presence of the child, I am satisfied she has the capacity to return to a more benign position, especially with the help of the counselling recommended by [the expert psychologist] which I intend to order. For most of the time since the child’s birth the mother acted in an appeasing and accommodating manner in relation to the father’s demands. The father, on the other hand, has consistently acted with a sense of entitlement and righteousness in relation to the child, has largely disregarded the mother’s views if they differ from his own and has become aggressive whenever the mother acted contrary to his wishes or in a manner of which he disapproved. In my view the child’s relationship with his mother would be in peril if it depended on the father supporting it…
(emphasis added)
The trial judge observed this of the parents’ respective positions, as at the conclusion of the trial, in the very opening paragraph of her reasons for judgment:
1.These are parenting proceedings in relation to the three-year-old child of the parties. Each parent seeks orders for the child to live primarily with them. The applicant father asserts that the attitude of the mother and her family is so hostile towards him that the only way the child can have a meaningful relationship with him is to live with him. The respondent mother alleges there is an unacceptable risk of harm to the child in the father’s care, including a risk of sexual abuse, and that any time the child spends with his father should be fully professionally supervised.
Thereafter, in discussing in considerable detail and recording findings about, inter alia, the history of parenting and care arrangements, at [2] to [170] of the reasons, the trial judge records numerous instances of high levels of conflict between the parents and their abject failures, historically, to agree upon even basic matters concerning care (see, for example at [6], [12], [17] and [18]; the topic of the father’s exclusion from the child’s childcare centre at [21] to [24]; the incidents in late-2013 and early-2014 discussed at [25] to [34]; the conflict surrounding the domestic violence proceedings and allegations of sexual abuse discussed at [35] to [61]; [65], [69]; the topic of the September 2014 incidents discussed at [74] to [80]; and the findings as to the degree of conflict between the parents in the discussion of the November and December 2014 incidents at [81] to [98]; and likewise the January 2015 incidents discussed at [99] to [124]).
At [125] to [159] of the reasons the trial judge makes extensive reference to the opinions of the single expert family report writer, a psychologist, which likewise contained numerous references to the high degree of conflict between the parents. At [126] the trial judge refers to the expert’s opinions, with apparent acceptance, that the father was intolerant and judgmental of the mother and that his expressed views indicated his expectation that the mother accede to his views about how his child should be raised.
In specifically addressing the s 60CC(2) primary considerations, the trial judge recorded at [173] and [174] of the reasons:
173.Although I am satisfied there is no unacceptable risk of physical or sexual abuse of the child, there is clearly a need to protect the child from the risk of psychological harm as a result of being exposed to verbal abuse and denigration by each parent towards the other. The child has been exposed to his father physically and verbally abusing his mother and verbally abusing his sister, his brother and his sister’s boyfriend, all of whom are loved by the child. The child has at times been confused and distressed by his father’s behaviour, including during the handover on 16 December 2014.
174.The child has also been exposed to a risk of psychological harm in the mother’s care as a result of her aggressive and abusive behaviour towards the father in the presence of the child which included making rude gestures towards him, verbally abusing him and accusing him loudly of being a paedophile. The child’s brother has also abused his father in the child’s presence. Given most of the abuse occurs at the handover of the child, the obvious solution is to require the handover to be professionally supervised which I intend to order. The risk could be eliminated if each party simply refrained from denigrating the other to the child or in his presence.
Both in the course of specifically addressing the s 60CC(3) additional considerations in detail (at [175] to [197]) and in weighing and balancing the considerations under the heading “[c]onclusion” (at [198] to [204]), the trial judge records findings reflective of the longstanding and high degree of hostility between the parents and their commensurate failures and inability to co-operate with each other.
It bears repeating that on the findings made by the trial judge as to family violence, the trial judge was correct to apply s 61DA(2) and conclude that the presumption in s 61DA(1) did not apply. Moreover, there was ample reason on the unchallenged findings of the trial judge, which are not in any way internally inconsistent when the reasons for judgment are read as a whole, for the trial judge to conclude, in the exercise of her discretion, that even had the presumption applied, it would have been rebutted in the child’s best interests.
There was, thus, never any merit in ground 5 of this appeal.
The non-activation of s 65DAA of the Act
Ground 6 foreshadowed the contention that the trial judge erred in “failing to consider the provisions of Section 65DAA(1) of the Act”. This ground must fail because it presumptively assumes, wrongly, that s 65DAA(1) of the Act was activated.
By the express terms of s 65DAA(1) that section only becomes operative if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child. The trial judge’s order did not provide, nor did her Honour propose to make, an order providing for the child’s parents to have equal shared parental responsibility.
Alleged error of fact
By ground 7 the father foreshadowed a contention that the trial judge erred in finding (at [86] of the reasons) that “it was not true that the Family Law orders required the mother to be present at handover.”
That is a reference to the events of 16 December 2014 discussed at [81] to [89] of the reasons and the relevant order which was operative at that time was the interim order made on 28 August 2014.
Probably all that needs to be observed with respect to this ground, as foreshadowed, is that the father’s written summary of argument acknowledges “the orders that existed at that time were silent on the issue of whether the mother was required to be present.” It is thereafter contended in that summary that “it is a reasonable available inference that orders dealing with a changeover must refer to a changeover between the parties unless they expressly authorise the use of third party agents.”
The orders did not expressly require the mother to be present at changeovers. The context in which the finding is recorded is relevant. Paragraph [86] of the reasons is as follows:
86.The police arrived but were unable to resolve the stalemate. The father agreed during his oral evidence that he told the police the family law orders required the mother to be present at handover which is not true. The police asked to see a copy of the orders which nobody had at the time.
It is not demonstrated that the trial judge made an error of fact. Moreover, as was ultimately conceded at the outset of argument of this ground by counsel for the father, even if the error contended for could be demonstrated, it could not be shown that the Court acted on such a misapprehension of fact, or that the mistake of fact contended for affected the outcome in any way such as to enliven appellate intervention.[4]
[4] See De Winter & De Winter (1979) FLC 90-605
Ground 7 never had any merit, as was ultimately conceded by counsel.
Conclusion
There being no merit in any of the father’s amended grounds of appeal, as was acknowledged by counsel in his ultimate abandonment of each and every one of those grounds in the course of argument of the appeal, the appeal must be dismissed.
Costs
In the event the appeal was dismissed, each of the mother and the ICL sought orders that the father pay their costs of and incidental to the appeal.
The father has been wholly unsuccessful in the proceedings within the meaning of s 117(2A)(e) of the Act.
Moreover, as these reasons seek to demonstrate, it is relevant to note that the ICL’s written submissions filed on 11 March 2016 ought to have given the father pause for thought as to the proper interpretation to be given to the relevant provisions of the Act upon which four of his amended grounds of appeal relied and, moreover, the interpretation the father chose to adopt for the purposes of most of his grounds of appeal.
Nothing submitted on behalf of the father by his counsel weighs against the making of orders for costs which are otherwise justified and appropriate. By bringing and agitating a meritless appeal, up until the course of argument of the appeal today, the father has put the ICL and the mother to unnecessary cost, inconvenience and, at least in the case of the mother, stress.
The father ought be ordered to pay the costs of each of the mother and of the ICL of and incidental to the appeal, to be assessed if not agreed.
I would order that the appellant have leave to file and rely upon the amended notice of appeal, dated 29 September 2015. I would further order that the appeal against the orders made by Judge Hughes on 31 March 2015 be dismissed. And I would further order that the appellant pay the costs of the respondent and of the ICL of an incidental to the appeal, to be assessed if not agreed.
MURPHY J
I agree that leave to amend the notice of appeal should be given. I agree that the appeal must be dismissed and that the appellant should pay the costs of the appeal of the mother and the ICL as agreed or, failing agreement, as assessed.
This was an appeal that enjoyed no prospects of success. So much should have been obvious from its outset, and even more so subsequent to the filing of the outline of argument on behalf of the ICL nearly six months ago.
An amended notice of appeal was sought to be filed and relied upon for the hearing of the appeal. Leave was granted but, as Kent J has pointed out, each and every one of the grounds of appeal was properly abandoned within a short time after the commencement of the hearing of the appeal.
I otherwise agree with the reasons delivered by Kent J in respect of the substantive appeal and the order for costs.
BRYANT CJ
I agree with the orders proposed by Kent J and the reasons for those orders.
I wish to add the following. Following discussion with the Bench during the hearing, as noted by Kent J, counsel for the appellant, quite properly, abandoned the contention that the definition of family violence did not apply because of the relationship between the parties.
However, he then sought to argue that family violence, as defined in s 4AB(1) of the Act, did not apply because, as I understood it from his argument, the mother was not fearful. Section 4AB(1) provides:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
As Kent J has pointed out, for that argument to be efficacious, the words of s 4AB(1) would need to be read conjunctively, not disjunctively, as the section is worded. So to be clear, family violence as defined in the Act does not need to be coercive or controlling (although it may be), if there is violent, threatening or other behaviour that causes a family member to be fearful. Or, alternatively, such behaviour that coerces or controls a person will constitute family violence. Hence, the examples that are given in s 4AB subsection (2) which give context to the meaning of subsection (1).
The trial judge, as indicated by Kent J, made findings of coercive and controlling behaviour. The underlying basis for which findings was not challenged, and the concession by counsel that this was family violence as defined was properly made.
The orders of the Court are:
(1) Leave is granted to the appellant to file and rely upon the amended notice of appeal dated 29 September 2015.
(2) The appeal against the orders made by Judge Hughes on
31 March 2015 be dismissed.
(3) The appellant pay the costs of the respondent and the independent children’s lawyer of and incidental to the appeal, to be assessed if not agreed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Murphy & Kent JJ) delivered on 1 September 2016.
Associate:
Date: 7 September 2016
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