SOULOS & SORBO - [2019] FamCAFC 231

FAMILY COURT OF AUSTRALIA

SOULOS & SORBO

[2019] FamCAFC 231

FAMILY LAW – APPEAL – PARENTING – Relocation – Appeal from parenting orders permitting the mother and child to relocate overseas – Where the Independent Children’s Lawyer supports the father’s appeal – Where the primary judge found that there was a risk of harm to the child in the father’s care, however, it was not an unacceptable risk – Where the father submitted that the primary judge’s finding as to a risk of harm was not open on the evidence – Where there was no evidence that would support a finding that the child was at risk of harm from his father – Where the expert witness did not support the child relocating overseas with the mother – Where the primary judge omitted to take into account a relevant factor and took into account a mistaken factor – Where the father submitted that the primary judge erred in considering the issue of family violence – Where the issue of family violence was a core issue and weighed greatly in the final determination – Where two grounds of appeal of substance succeeded – Where the orders must be set aside and the matter remitted for a second rehearing.

FAMILY LAW – APPEAL – COSTS – Where no order for costs was sought in the event that the appeal was successful – Where costs certificates will be granted to each of the parties for the appeal and the rehearing.

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232
Browne v Dunn (1893) 6 R 67
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
De Winter and De Winter (1979) FLC 90-605
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lee v Lee (2019) 93 ALJR 993; [2019] HCA 28
Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382; [2009] NSWCA 234
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sahrawi & Hadrami (2018) FLC 93–857; [2018] FamCAFC 170

APPELLANT:

Mr Soulos

RESPONDENT:

Ms Sorbo

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

PAC

5406

2012

APPEAL NUMBER:

166

2018

DATE DELIVERED:

3 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Aldridge & Austin JJ

HEARING DATE:

4 July 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 December 2018

LOWER COURT MNC:

[2018] FamCA 1121

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Cummings SC with Ms Tabbernor

SOLICITOR FOR THE APPELLANT:

Thurlows Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Levet

SOLICITOR FOR THE RESPONDENT:

Spectrum Legal Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms De Vere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

The appeal be allowed.
The orders made on 21 December 2018 be set aside.
The matter be remitted for rehearing by a judge of the Family Court of Australia other than the primary judge.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties, including the Independent Children’s Lawyer, a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant father, respondent mother and Independent Children’s Lawyer in relation to the rehearing of the application.

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 Soulos & Sorbo 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 166 of 2018
File Number: PAC 5406 of 2012

Mr Soulos

Appellant

And

Ms Sorbo

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is an appeal from parenting orders made on 21 December 2018 by a judge of the Family Court of Australia concerning B (“the child”) who was born in 2011. Ms Sorbo (“the mother”) sought orders for the child to live with her in Country N. The mother’s application was opposed by Mr Soulos (“the father”) who sought orders for the child to live with him in Australia and spend time with the mother.
An Independent Children’s Lawyer (“the ICL”) was appointed and opposed any relocation to Country N but proposed orders that the child continue to live with the mother and spend time with the father.
The question, therefore, that faced the primary judge was whether the child should live with the mother in Country N or Australia or with the father in Australia.
Ultimately, the primary judge acceded to the mother’s application and made orders permitting the relocation of the child to Country N. The father appeals from those orders. The appeal is supported by the ICL.

Background

The father, who was aged 42 at the time of the hearing, is an Australian citizen of Country HH heritage. He met the mother, who was aged 39 at the time of the hearing, on an international dating website in 2009. The mother was then living in Country N where she was born and raised.
The relationship developed quickly. The mother spent three months in Australia in late 2009 and then returned to live permanently in Australia with the father in 2010. A civil marriage ceremony was conducted in 2010 followed by a religious ceremony in 2011.
As we have said above, the parties’ only child was born in 2011.
The parties separated in 2012 when the mother moved into a women’s refuge with the child.
At the same time, the father was charged by the police with assaulting the mother and for intimidating her earlier in the same year. He pleaded guilty to the second offence and a final Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother which remained in force until March 2015.
In July 2013 orders were made for the child to spend time with the father for three hours per week at the father’s home and supervised by a professional supervision service. That time commenced in August 2013.
In September 2014 the orders made in July 2013 were varied, and provided for the child to spend three hours each Saturday and Sunday with the father. The requirement for supervision remained.
A final hearing was conducted by a judge of the Family Court of Australia in February 2015. His Honour did not accept the mother’s proposal to return to Country N with the child and final orders were made on 26 March 2015 which provided that the child live with the mother in Australia and spend unsupervised time with the father. Orders were also made in relation to parental responsibility, the child’s name, changeovers and discharging the ICL.
The mother became an Australian citizen in 2015.
On 15 September 2015 appeals by both the mother and the father from the orders made on 26 March 2015 were allowed by consent and the matter was remitted for rehearing. The orders made on 26 March 2015 continued as interim orders.
Further interim orders were made by the primary judge on 16 February 2016 in relation to the child spending time with the father and changeovers. In the following month, the rehearing was expedited. The matter was fixed for hearing in April 2017 but that date was vacated in February 2017 on the mother’s application. At that time, orders were made preventing the child’s removal from Australia.
The hearing before the primary judge commenced in April 2018 and concluded in August of that same year. The final parenting orders which are the subject of this appeal were made on 21 December 2018.

The Appeal

It is convenient to deal with the grounds of appeal in the order in which they were approached by senior counsel for the father at the hearing of the appeal.

Did her Honour err in her findings in relation to the evidence of the paternal grandfather? (Ground 4)

It was conceded by the mother that the primary judge erred in making the finding in the last sentence of the following paragraph:
353.In this context it is also of concern in my view that at least one member of the extended paternal family, (the paternal grandfather) demonstrated a concerning attitude towards family violence alleged against the father in these proceedings. The paternal grandfather when cross-examined could not countenance the possibility that his son had perpetrated family violence against the mother and was not aware and did not seem concerned that the father had pleaded guilty to an offence of family violence and had been charged with two other counts of assaulting the mother. He could only offer the suggestion that the mother was motivated by revenge in making false allegations of family violence.
This led to the finding that “future violence may not be recognised in the paternal family if it were to occur” (at [354]). This finding is challenged for the same reason.
The paternal grandfather’s evidence was that he did not know that his son had pleaded guilty to a charge of intimidating the mother. When asked by the primary judge “how do you think a woman would feel if she was assaulted, bruised, threatened and the victim from her husband” (Transcript 20 April 2018, p.266 lines 11–12), the paternal grandfather said “[s]he will seek revenge” (Transcript 20 April 2018, p.266 lines 15–19). There was no suggestion by the paternal grandfather that he blamed the mother.
It follows that there was no basis for the primary judge’s finding that the paternal grandfather blamed the mother “as the victim for falsely reporting violence” (at [354]). The error contended for by the father has been established.
The father submitted that this finding was given significant weight by her Honour, to the extent that if this was the only error found to have been made by the primary judge, it would justify allowing the appeal and setting aside the orders. We do not agree.
Whilst the finding was clearly given some weight by the primary judge, adversely to the father’s case, we doubt whether in the scheme of things, it carried anything near determinative weight. However, given the findings we will be making in relation to the other grounds, this is now a moot point. It is sufficient to say that we consider that the error was made but that it was not ultimately material per se (De Winter and De Winter (1979) FLC 90-605 (“De Winter and De Winter”)).

Did her Honour err in making a finding that there was a risk of harm to the child in the father’s care, was such finding based on errors of fact and were the reasons sufficient? (Ground 5)

The primary judge found that there was a risk of harm to the child in the father’s care, however, in the circumstances, it was not unacceptable. Nonetheless, her Honour considered that some weight needed to be attached to this consideration which favoured the orders sought by the mother. The father submitted that this finding was not open on the evidence.
The mother alleged that the father had been physically violent to her on many occasions whilst they were living together. Her Honour was satisfied that on six separate occasions, that was so. However, there had been no allegations of physical violence towards the mother in the six years since the parties had separated.
The mother also alleged that the father physically assaulted the child in May 2018 by hitting him on the head.
After careful consideration of all of the evidence on this issue, her Honour did not accept that the child had been assaulted. Her Honour went on to say:
209.Although I am not satisfied that the father assaulted the child as alleged by the mother that is not the end of the matter as I must consider whether there is an unacceptable risk of harm to the child on the basis that he may cause psychological damage to or assault this child (even if I am not positively satisfied that this occurred in the past).
210.Although the father denied under cross-examination that he threw a nappy at the child or hit him to gain his attention the child did report these matters to both staff at the children’s hospital and police, albeit in both cases in circumstances which indicate influence by the mother. The most detailed account given by the child is that set out in the police records that the father threw a nappy at him which hit him in the face and approached him and told him to get ready for bed in loud voice while placing his hand around the child’s scalp and applying some momentary pressure to the child’s temple.
211.If it were the case that the father did gain the child’s attention through these means this may be regarded in my view as an unusual or inappropriate method of gaining the child’s attention at is highest. There is no other evidence in the proceedings to suggest that the father has caused physical harm to the child. I am of the view that there is no unacceptable risk that the father will inappropriately punish or cause physical harm to the child.
However, in the following passage, her Honour did take into account the father’s earlier physical violence towards the mother to make a finding that the child would be at risk of harm in the care of the father:
298.Having regard to my findings in relation to the father’s violence against the mother, the father’s complete denial of any violent behaviour (even in relation to the offence to which he pleaded guilty which was so minimised in these proceedings to amount to a denial) and the impact upon the child if such violence were to occur in my view there is a risk of harm to the child in the father’s care. I do not however assess this risk as unacceptable in circumstances where there is no positive evidence to suggest that the father is violent in his current relationship. Although I do not assess the risk as unacceptable, some weight must be attached to this matter when considering the need to protect the child from harm associated with exposure to family violence.
The father submitted that the findings as to his violent conduct were wrongly made but that is the subject of Ground 1 to which we shall turn in due course. The submissions made under this ground proceeded on the assumption that the findings were open on the evidence and that Ground 1 was unsuccessful. The point of the father’s submission is that the violence only occurred when the parties were living together and that there had been no reoccurrence of violence since the parties had separated. The evidence, taken as a whole, is said by the father to fall well short of supporting a risk of harm to the child.
The father relied heavily on the evidence of the single expert psychiatrist, Dr M, who gave evidence to the following effect:
[DR M]: …I did not identify any evidence, subsequent to the parental separation, that the father was a risk to the child or to the mother or to any other party…
(Transcript 12 July 2018, p.358 lines 15–17)
[DR M]: …And, indeed, when I assessed the father and I observed his interactions with the child and his interactions with his new partner and her son from a previous relationship and their child together, their infant together, again I found no evidence that the father had anger management problems or had been acting in an untoward manner with regard to impulse control and violence.
(Transcript 12 July 2018, p.358 lines 31–36)
Nonetheless, Dr M considered that the father’s previous violence towards the mother was relevant, not to the extent that it changed his mind about the desirability of the child living in Australia so that he could further his relationship with the father, but as to the issues of the time and manner in which he did so. The following passage makes this clear:
[HER HONOUR]: And just so that I definitely understand it, in relation to the issue of family violence, which is the matter that I did ask the most questions about?
[DR M]: Yes, that’s it. Yes.
[HER HONOUR]: do I understand – it does not change your position that it would still, on balance, be best for the child to remain in Australia, but does it change your view as to whether it would be in the child’s best interests to have substantial and significant time with his father?
[DR M]: Yes, it does. And in particular, it is my view that the parents will lack the capacity into the future to have the capacity to have joint parental responsibility whereby they will be able to attend – make appropriate decision-making collaboratively with regard to the child’s care. I see no prospect of a collaborative approach to co-parenting into the future and particularly if the findings are that there has been family violence as alleged by the mother. The mother’s capacity to trust the father into the future will be severely limited because of that experience.
(Transcript 12 July 2018, p.391 lines 20–33)
At the hearing, the ICL submitted that there was no future risk of harm to the child (Transcript 3 August 2018, p.3 lines 35–39).
That same theme was taken up by the primary judge with counsel for the mother in the following passage:
HER HONOUR: There’s only one consideration that goes directly to family violence, though, as I’ve indicated, I’m of the view – no, there’s two. There’s the need to protect, but that’s about ongoing future family violence, and I don’t think [you’re] contending that he’s at risk of that, are you?
[COUNSEL FOR THE MOTHER]: Your Honour, no. There’s no - - -
(Transcript 3 August 2018, p.34 lines 41–46)
Therefore, having regard to the evidence of Dr M and the submissions that were made, there was no issue at the hearing that the child was at a future risk of harm when in the care of the father.
It is worth repeating that whilst the father had been violent when the parties were living together, there had been no violent conduct in the six years since the parties had separated. There was no suggestion that the father was violent in his new relationship and the evidence was to the contrary. Whilst it was relevant to future interactions between them, it is too far a stretch to suggest that because of the earlier violence, there was an existing risk of harm to the child. The mother did not suggest that there was.

Neither the ICL nor the mother pointed to evidence that would support a finding that the child was at risk of harm from his father.
It is clear, nonetheless, that this issue carried some weight with her Honour. At [372]–[380], her Honour weighed what she regarded as the advantages and disadvantages of the child relocating to Country N with the mother. Her Honour said that “[t]here is some risk that the child may be exposed to violence in the father’s care in the future and there is a need to protect the child from harm on this basis” (at [376]).
Clearly, it is a matter to which significant weight was given as it was one of the key considerations ultimately taken into account.
This Court is bound to conduct a real review of the undisputed evidence of the facts on which the findings of the primary judge are based (Lee v Lee (2019) 93 ALJR 993 at [55]). On such a review, as just conducted, and having regard to the submissions that were made, including the concessions made by the mother and the evidence that we shall shortly discuss, we consider that the evidence could not support the finding made by her Honour.
The error has been established and this ground of appeal succeeds. There is, therefore, no utility in addressing the adequacy of the written reasons on this issue.

Did her Honour err in “her determination that the [m]other be permitted to relocate and thus that the best interests of the child meant that he have no relationship with his [f]ather was absent reasons or sufficient reasons and plainly wrong”? (Ground 3)

This ground is most inelegantly worded and appears to raise a number of different errors.
The gravamen of it, however, as explained in the course of oral submissions, is that her Honour ultimately failed to take into account a relevant consideration, namely, the effect on the child of a relocation to Country N which would cause the loss of his relationship with the father but also, importantly, the loss of what Dr M described as his “environmental factors” (Transcript 12 July 2018, p.390 line 37). It was accepted that her Honour found that the relationship between the child and the father would cease if the child moved to Country N and that the child received a significant benefit from having a meaningful relationship with the father but it was submitted that her Honour failed to consider and weigh in the balance the loss of that relationship and the other losses described by Dr M.
The primary judge found, without challenge, that if the child were to live in Country N, it was highly unlikely that the mother would facilitate the child spending time with the father in Australia. Further, the father was not prepared to travel to Europe to spend time with the child. Effectively, for these two reasons, any move to Country N would see the end of any relationship between the child and the father. This led her Honour to make the following findings:
283.Further, despite the strength of the current relationship between the child and the father, given the child’s age, the likely influence of the mother if she were the only parent in the child’s life and the child’s inability to experience the reality of time with his father if he were to relocate overseas I am satisfied that it is likely the relationship between the two would come to an end. In these circumstances I am of the view that if the orders are made as proposed by the mother (or as proposed by the ICL in the event that the relocation were permitted) the child will not enjoy any relationship with his father during the remainder of his childhood. It is a matter of mere speculation whether the child could rekindle his relationship with his father once he reaches adulthood.
284.The expert’s firm opinion is that the child does receive a benefit from his relationship with his father and will continue to do so in the future. Although the expert had recommended in his first report that if the court found that the father had perpetrated family violence against the mother as she alleges she should be permitted to relocate he did not express this opinion on the basis that the child would not receive a benefit from a meaningful relationship with the father. Rather this recommendation was made in the context of the relationship between the two being not particularly developed. In his second report four years later when the relationship with the father was far more developed there was no challenge to the expert’s opinion that the child receives a significant benefit from having a meaningful relationship with both parents. I am also satisfied that this is the case.
This, indeed, was the evidence of Dr M. In his first report of December 2014, Dr M supported the move to Country N. However, in his supplementary report of June 2017, he no longer supported the move to Country N. In the later report, Dr M noted that the child had “increasingly enjoyed his contact with the father and his partner” and “spoke enthusiastically about their play and interactions, consistent with their observed interactions” (Supplementary Report of Dr M dated 28 June 2017, paragraph 74).
Dr M’s supplementary report continued:
There will necessarily [be] a loss of the current shared intimacy experienced in the father/son relationship if this is not maintained. It was of concern that the mother and maternal grandparents are of the view that the relationship with the father is easily substituted. The loss of regular contact will necessarily impact upon the depth of this key relationship.
(Supplementary Report of Dr M dated 28 June 2017, paragraph 79)
In his oral evidence, Dr M confirmed that he observed “an improved and continuing and growing relationship between [the child] and the paternal part of his parents” (Transcript 12 July 2018, p.370 lines 18–20).
However, Dr M also said:
The mother’s proposal to relocate to [Country N] would enable the child to maintain a close connection with his maternal grandparents, extended maternal family and local community. His mother is likely to be happier and more relaxed in such circumstances, particularly if she re-establishes stable employment with the [Country N] Police Force. Under such circumstances, the child is likely to adapt well to the separation from his father.
(Supplementary Report of Dr M dated 28 June 2017, paragraph 81)
Any tension between these passages was dispelled during his oral evidence when Dr M reaffirmed his opinion, weighing up all the evidence and the matters that had been put to him in the course of his oral evidence, that it was in the best interests of the child for there to be a relationship between him and his father (Transcript 12 July 2018, p.424 lines 19–21). Thus, he agreed that the only possible alternatives were that the child live with the mother and spend time with the father or the child live with the father and spend time with the mother (Transcript 12 July 2018, p.424 lines 25–28). The necessary effect of that evidence is that Dr M did not support the child relocating to Country N with the mother as such arrangements could only occur in Australia.
When her Honour turned to the discussion of s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) considerations, her Honour dealt with the nature of the child’s relationship with each parent and other significant persons (s 60CC(3)(b)), the likely effect of change in the child’s circumstances (s 60CC(3)(d)) and the practical difficulty or significant expense involved in spending time with and communicating with the other parent (s 60CC(3)(e)) together at [302]–[321].
Her Honour referred to the positive relationship between the child and the father, saying:
303.The expert observed positive interactions between the child and his father. Although the child’s communication about his experience with the father was ambivalent the expert in oral evidence identified many positive features about the child’s relationship with his father which had continued and grown since he had begun spending unsupervised and more extensive time with him over the last few years. The expert also observed positive interactions between the child and the father’s partner and his … half sibling and recorded the child’s enthusiastic reports about the play and interactions between the paternal family members which were consistent with the expert’s observations.
304.The expert also noted the significance of the child’s relationship with extended members of both the paternal and maternal family. The expert agreed the child shared important relationships with all of his grandparents.
Her Honour also said:
310.At a fundamental level and related to the earlier discussion concerning the benefit to the child in having a meaningful relationship with his father, the expert’s greatest concern about the mother’s relocation is that the child would be deprived of a relationship with his father and paternal family which would not be to the child’s benefit.
Her Honour then summarised the opinion of Dr M as follows:
313.The expert said he found it very difficult to weigh up the relative merits of the respective proposals. In addition to the mother’s proposal bringing about a loss of contact between the child and his father but likely resulting in an improvement in her mental health which would be beneficial to the child, the expert also said that the benefits and detriments of the mother’s proposal would depend upon the child’s capacity to adapt to the new circumstances in a new country which is currently untested. The expert described this as “a significant hurdle for [the child] to overcome to adjust to his new circumstances and emphasised the significance of the loss of his relationship with his father and extended paternal family which he enjoys and the loss of the environmental factors that he is currently used to at school, in ex[tra]-curricular activities with friendships and so on”. He also opined that if the mother did relocate she may return to full time employment which would involve less time on a day to day basis with the child.
314.Overall the expert was unable to express a definitive opinion upon how that change in circumstances would impact upon the child and said in summary that “whether that would be in the child’s best interests is very difficult to say”. Nonetheless he ultimately expressed the view that his recommendation based on the information he had was that it would be least detrimental for the child to remain living in Australia in his mother’s care.
We turn then to her Honour’s ultimate conclusion as to the relocation of the child and the mother to Country N which can be found at [372]–[381] of her Honour’s reasons. Her Honour noted that if the child were to move to Country N, his relationship with the father would undoubtedly become “attenuated” and that given the attitude of the parents it was pointless to make any orders seeking to maintain it (at [372]–[374]). Her Honour noted that the mother lacked “the capacity to support the child’s relationship with his father and is over protective” (at [377]).
The primary judge then turned to the issue of violence which her Honour regarded “as a matter of great significance in determining the parenting arrangement that is in the best interests of this child” (at [376]).
In the light of a discussion about the impact on the mother if orders are made as proposed by the father, her Honour said:
378.The other matter to which I attach particular significance is the nature of the child’s relationship with his mother and the impact upon him if orders are made as proposed by the father or ICL. While it is the position of the ICL that for this reason the child should remain living with the mother the ICL also proposes that the mother not be permitted to relocate the child’s residence to [Country N].
Her Honour then said:
379.The ICL and father place weight on the significant benefit the child receives from his relationship with his father and the loss he would experience if that relationship were brought to an end. While the expert did not recommend a parenting arrangement that would result in the relationship between the child and his father coming to an end he is of the view that a very important aspect of the child’s response to any future parenting arrangement is dependent upon the mother’s mental state. It is the expert’s view to which I attach weight that the findings of family violence consistent with the mother’s account means that not only sharing parental responsibility with the father is problematic but there would be real difficulty for the mother in managing her stress if the child were to spend significant time with the father.
380.Even though there is no doubt in my view that the child will experience a real loss with the cessation of his important relationships with his father and entire paternal family including his only sibling the benefits to the child in remaining in Australia are outweighed in my assessment by the risks to the child in such an arrangement.
Although her Honour notes the effect of the loss of the relationship between the child and the father, her Honour discounts it because of her views as to family violence and the risk to the child in remaining in Australia (at [379]–[380]). That risk, as we have already discussed under Grounds 4 and 5, was identified as the risk of harm in the father’s care and the risk that the paternal family would be dismissive of any allegations of violence.
The evidence of Dr M was not to the same effect as her Honour’s findings as the answer to the following question makes plain:
[COUNSEL FOR THE FATHER]: Taking those matters into account, and even assuming that the allegations are found by her Honour, given the importance of [the child] having a relationship with his father, would you agree that even if her Honour made that finding, that it occurred exactly as the mother says, that a return to the orders of [a judge of the Family Court of Australia] would be ones that would be in his best interests, that is, the alternate weekends, half school holiday arrangements?
[DR M]: Yes.
(Transcript 12 July 2018, p.434 lines 1–6)
Instead, Dr M reiterated his view that it would be detrimental for the child to relocate to Country N. He said:
[COUNSEL FOR THE FATHER]: I understood he had – I understood Dr [M] to say that having taken on board everything, his recommendations remained as set out in his report, which is [E]xhibit 2 in the proceedings.
HER HONOUR: Yes, he said – he said that at the beginning and then he came back at the end to what he had agreed. I’m asking him about the various questions that I asked him that I had understood that he was saying that on the basis, if I were to make those findings about family violence, that his recommendations now would be that the mother, in terms of being least detrimental between the three, that the mother should be permitted to reside in [Country N] as the least detrimental.
[COUNSEL FOR THE FATHER]: Well, if - - -
HER HONOUR: [Country N] as the least detrimental. That’s what I had understood, but if that’s not correct - - -
[DR M]: Your Honour, I certainly didn’t go as far as saying that. That was – that was not my understanding of my response. My response was that it was difficult - - -
HER HONOUR: Yes?
[DR M]: and that we’re weighing up the various – the various pros and cons and that I found it very difficult to – so I do think it would be detrimental to the child to relocate to [Country N] - - -
[HER HONOUR]: I understood that?---
[DR M]: as it would result in the loss of contact with his father. I do understand that it is the mother’s proposal that she should be allowed to relocate to [Country N]. I do think that it’s probable that that would be associated with an improvement in her mental health, and I agree with Dr [FF]’s views with regard to that. I think that if there was an improvement in the mother’s mental health, that would be beneficial to the child. However, it is very difficult to weight up the relative merits of those propositions. It would depend upon the child’s capacity to adapt to the new circumstances in [Country N], which is currently untested. It would be a significant change in his life experience. At the moment, he has no experience of living in [Country N], attending school in [Country N]. It would be a significant hurdle for him to overcome to adjust to his new circumstances. He would experience the loss of his relationship with – loss of his relationship with his father and extended family, which he enjoys. He would experience the loss of the environmental factors that he is currently used to at school, in extra-curricular activities, with friendships and so on. And if he did relocate and his mother returned to full-time employment in [Country N], there may be a loss of – there would be a total change in his circumstances in [Country N]. That may involve less time on a day-to-day basis with his mother. It is very uncertain. I am not sure what that proposal – how that proposal would impact upon him. So certainly from the mother’s point of view, I entirely respect her desire to relocate to [Country N]. There may be some benefit to the child as a knock-on effect from an improvement in the mother’s mental health, which is likely to be the case, but whether that would be in the child’s best interests is very difficult to say.
[HER HONOUR]: Thank you. I understand that. I had thought, though, that the very last questions that [counsel for the ICL] asked in taking you back to your report about the views that you held - - -?
[DR M]: Yes. Yes.
[HER HONOUR]: Do you still say that that is the least – that recommendation was that the child remain living in Australia. Do you still say that’s your recommendation?
[DR M]: Based on the information that I have, that is the case.
(Transcript 12 July 2018, p.390 line 1 to p.391 line 7) (Emphasis added)
This important evidence was not referred to in her Honour’s reasons. Two points emerge from it. The first point is that, of course, her Honour was not bound to accept the evidence of Dr M. However, if that was the case, then her Honour was required to say why it was not accepted. Her Honour did not do so and the reasons taken as a whole rely significantly on Dr M’s evidence.
Secondly, the father submitted that the primary judge failed to carry out an analysis of the kind that was undertaken by Dr M in the above passages from the transcript. It was submitted that her Honour failed to balance the advantages and disadvantages of the proposed relocation to Country N and, in particular, failed to give express consideration to the disadvantages that would be suffered by the child if he did move, namely, the loss of his relationship with his father and the loss of his “environmental factors” (Transcript 12 July 2018, p.390 line 37).
The primary judge was very much focused on the issue of family violence and the need to protect the child from the risk of it.
In short, we accept the father’s submission that nowhere in the reasons did the primary judge adequately consider and weigh in the balance the effect of the changes of the child relocating to Country N, other than the loss of his relationship with his father. This was then weighed against the erroneously found risk of harm that the father presented to the child. In doing so, her Honour omitted to take into account a relevant factor and took into account a mistaken factor (House v The King (1936) 55 CLR 499). Nowhere does the primary judge consider the father’s or the ICL’s proposed orders, which is possibly a consequence of not looking fully at the advantages and disadvantages of the mother’s proposed orders.
This ground of appeal has been established.

Did her Honour err in determining that it was necessary to make findings of family violence to resolve the issues of parental responsibility and with whom the child should live? (Ground 2)

The father submitted that her Honour erred in considering the issue of family violence at all because it was “unnecessary … given the single expert’s view that the child and the [m]other were not at risk of further family violence and in circumstances where there had been no [incidents] of family violence in the [six] years since separation” (Father’s Summary of Argument filed on 27 May 2019, paragraph 2.4). It is not, of course, for a single expert to determine disputed factual issues such as the existence of family violence.

The mother alleged that not only was the father violent to her prior to separation, but that he had assaulted the child which caused bruising to the child’s head in May 2018. We do not see how her Honour could simply ignore the mother’s allegations. If established, not only was the presumption of equal shared parental responsibility rebutted (s 61DA(2) of the Act), but an assault on the child would be directly relevant to the finding of whether the child was exposed to an unacceptable risk of harm in his father’s care. It follows, therefore, that contrary to the submissions of the father, the issue of family violence was relevant to the issues in the case.
Further, Dr M described the issue of family violence as being “a core issue in considering these family circumstances” and was at the core of the mother’s motivation to return to Country N (Transcript 12 July 2018, p.358 lines 2–17). He also opined that family violence was a significant factor in the proceedings and would “weigh greatly” in the final determination (Transcript 12 July 2018, p.425 lines 46–47).
There is no merit in this ground of appeal.

Were her Honour’s findings as to family violence unsafe and unsound “as a consequence of a failure to give reasons or sufficient reasons, contain errors of fact, fail to consider all of the evidence, fail to consider properly the [father’s] submissions at trial and take into irrelevant evidence and or considerations?” (Ground 1)

This ground, as expressed, is in reality a number of different grounds of appeal. It is unfortunate that they were conflated into the one because the principles that attend each are different and should be approached separately.
Not surprisingly, the submissions made under this ground ranged widely. We were able to discern the following challenges from the father’s Summary of Argument filed on 27 May 2019, noting that most of the submissions were unhelpfully broad and general in nature. It was submitted that the primary judge erred in that her Honour:
·Did not make a general adverse credit finding against the mother;
·Did not consider evidence that was unfavourable to the mother;
·Failed to address inconsistencies in the mother’s evidence;
·Failed to take into account the mother’s “untruthfulness” in relation to the May 2018 allegations; and
·Did not consider all the evidence in relation to the allegations of violence.
In short, for those reasons, the father submitted that the mother’s evidence as to violence should not have been accepted. There are two immediate difficulties with this approach.
The first difficulty is that there was unchallengeable evidence of violence. On 11 March 2013, the father pleaded guilty to intimidating the mother with intent to cause fear of physical or mental harm pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Although this was not an act of physical violence, it fits clearly within the definition of family violence in s 4AB of the Act. Thus, the issue was not whether the father was violent, but the nature and extent of that violence. Notwithstanding his plea, the father maintained in cross-examination at the hearing that he had not intended to cause an apprehension or fear of physical or mental harm. That was not a course open to him because he had admitted to doing so by his plea as his intention was an element of the offence.
This led her Honour to conclude, correctly in our opinion, that the father had attempted “to minimise the seriousness of his conduct which formed the basis of his guilty plea that was accepted in another court” (at [109]).
The second difficulty is the approach of appellate courts to asserted errors of fact finding by a trial judge which was described by the High Court in the following terms in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]:
The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.
(Footnotes omitted)
In our opinion, for the reasons that follow, the submissions made by the father fall well short of demonstrating error of the kind just described.
It is, however, necessary to set out some relevant facts so as to place the submissions in context.
In the mother’s affidavit filed on 31 May 2017, under the heading “The Marital Relationship”, she set out a number of examples of what she said was demeaning and controlling behaviour by the father. Then under the heading “Violence” she described six incidents of physical violence that occurred in the fourth month of the mother’s pregnancy and in October 2011, December 2011, June 2012, August 2012 and 19 November 2012.
In addition, she said:
37.During my pregnancy, the [father] started to hit me. On a number of occasions during my pregnancy, he punched me in the back and pushed me from behind and as a result, I began to be concerned for the safety of my unborn baby.
…
44.From the time I fell pregnant, the [father] would frequently get annoyed with me to the extent that he would grab me by the shoulders, shake me violently, push me against the wall and scream insults and obscenities at me. This would happen every two or three days during the last three months we were together. Every week or so, he became angry to the extent that he would grab me around the throat.
(Affidavit of the mother filed on 31 May 2017)
The primary judge was satisfied that each of the six specific incidents occurred as set out by the mother in her affidavit filed on 31 May 2017.

Did the primary judge err by failing to make a general credit finding?

Her Honour said:
92.It is worth noting at this stage that I do not make a general credit finding in relation to the parties and then accept or reject each party’s case on this basis. Rather, I approach the making of findings by looking to matters such as consistency of a particular version with undisputed facts, corroboration by other evidence that is independent and/or likely to be reliable, concessions made under cross-examination and internal consistency with each party’s case.
Although this passage was criticised by the father, her Honour’s approach accords entirely with principle. It is not an error of law to decline to make a general credit finding (Sahrawi & Hadrami (2018) FLC 93–857 (“Sahrawi & Hadrami”) at [59]). As is pointed out in Sahrawi & Hadrami, the authorities make clear that a judge can accept some part of a witnesses’ evidence and reject others (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322). The majority in Sahrawi & Hadrami also pointed out at [64] that the preferred approach in family law proceedings remains as set out in Adamson & Adamson (2014) FLC 93–622, which said:
87.First, we question the nature of the credit findings and, more importantly, the need for many, if not all, of them to have been made in the first place.
88.This case involved, as his Honour found, competing co-parenting arrangements where it was effectively conceded by the father that the child would continue to live with her mother. Equally crucial, the proposals for the time that the child should have with her father were not significantly disparate.
89.In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
165.As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166. To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
90.We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
Her Honour applied these principles and thus no error has been demonstrated.

Did the primary judge fail to consider evidence that was unfavourable to the mother and fail to address inconsistencies in the mother’s evidence?

It is convenient to approach these aspects of the father’s challenge by addressing each of the specific incidents.

Incident during the fourth month of pregnancy

The mother’s evidence was that in the fourth month of her pregnancy, the father pushed her up against a wall in the course of an argument. The primary judge recorded that:
66.… The father does not give a version of any incident between he and the [mother] during her pregnancy, and this allegation was not challenged under cross-examination.
The first point made by the primary judge is erroneous because the father simply denied that this incident occurred and he therefore had no basis for giving a different version of the incident. Thus an error has been established but, in the circumstances, it is not a material one per se (De Winter and De Winter).
The second point is also not without its difficulties. The allegation had been raised and traversed in the written evidence so the matter did not need to be raised in cross-examination (Browne v Dunn (1893) 6 R 67; Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 at [105]).
Nonetheless, the finding that this incident occurred was open on the evidence. The primary judge was entitled to look at the evidence as a whole, and entitled to take into account the father’s denials in the light of his guilty plea to a charge of intimidating the mother and the alleged assaults that were supported by independent evidence, which we shall discuss shortly. Such matters can properly be taken into account in assessing the likelihood that other incidents occurred as described by the mother.

Incident in October 2011

An instance of family violence was said to have occurred when the child was about two weeks old. The mother alleged that the father jumped towards her, went red in the face and aggressively told her that she was not to tell him how to behave with his son (Affidavit of the mother filed on 31 May 2017, paragraph 38). The primary judge referred to the father’s version of this incident, given in cross-examination, and said:
70.…The father agreed that he jumped towards the mother and said words to the effect of “you don’t tell me how to behave with my son”.
It was submitted that the primary judge erred in finding that the father agreed that he had jumped at the mother.
In cross-examination, the following exchange took place:
[COUNSEL FOR THE MOTHER]: And I suggest you jumped towards her, and went red in the face, and said, “You don’t tell me how to behave with my son”?
[THE FATHER]: And she walked away, and I – that’s all I said to her.
HER HONOUR: Sorry,” and that’s what I said to her”?
[THE FATHER]: Yes. Yes.
[HER HONOUR]: So you agree with - - -?
[THE FATHER]: No.
[HER HONOUR]: Are you agreeing with what was said?
[THE FATHER]: Yes.
(Transcript 19 April 2018, p.149 line 45 to p.150 line 5) (As per the original)
We agree with the primary judge that it is implicit in the father’s answer that he agreed that he jumped towards her and went red in the face, as well as saying “[y]ou don’t tell me how to behave with my son”.
In other words, a significant aspect of the mother’s allegations was supported by the father himself.
The primary judge also took into account the fact that although the father denied all allegations of family violence, he did not give a version of this incident in his affidavit evidence. This is an apt comment because clearly the father did have a recollection of it. However, we do not consider it to be a matter of significant weight.

Incident in December 2011

The mother alleged that the father grabbed her around the throat, squeezed it and said “[a]s long as you live under my roof, you are never allowed to speak [Country N] to my son” (Affidavit of the mother filed on 31 May 2017, paragraph 39).
The father denied the assault but claimed to have a recording of the incident and, according to her Honour, appeared to suggest that the recording was consistent with his version of the incident. This indicated to her Honour that the father did have a recollection of this incident, even though he did not set out a version of it in his affidavit. Thus, her Honour considered that although the father could have given evidence on the subject and produced the recording, he chose not to. This, of course, in accordance with well-known authority, makes it easier for the primary judge to accept the mother’s contentions (Jones v Dunkel (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64]). We do not accept the father’s submissions to the contrary.

Incident in June 2012

The mother alleged that in June 2012 the father grabbed her hair, pulled her to the ground, sat on her breasts, grabbed her around the throat, pinned her body between his legs and spat on her (Affidavit of the mother filed on 31 July 2017, paragraph 40).
She attended her family doctor. The primary judge recorded the doctor’s evidence as follows:
115.I attach significant weight in assessing the veracity of the mother’s allegation to the evidence of the general practitioner to whom the mother reported this alleged assault. This doctor deposes that on 12 June 2012 the mother attended at her practice and that she initially observed bruising to the mother’s cheek, upper arm and neck. When she asked the mother about it she was then shown additional bruising on her left buttock, right thigh and back which appeared to be fading. The doctor said that when she asked the mother how it had occurred the mother reported “my husband assaulted me around three days ago” or words to that effect.
It is to be recalled that it was this incident which led to the father being charged and subsequently pleading guilty to, the criminal offence that we have described above.
The father submitted that the primary judge’s finding that this incident occurred in the manner described by the mother was “unsafe” because the doctor to which the mother went to had no recollection of the mother’s visit and because the doctor’s evidence and the mother’s evidence were “internally inconsistent, unsafe and unsound” (Father’s Summary of Argument filed on 27 May 2019, paragraph 2.32).
The first point raised by the father is easily dealt with because it is entirely unremarkable that a busy professional would not have a recollection of every visit by every patient. In any event, that recollection, or lack of it, can hardly affect the accuracy of the notes made at the time that the doctor saw the patient.
As to the second point raised by the father, the asserted inconsistencies are these:
·The mother in the course of her oral evidence before the judge in the final hearing in February 2015 said that the alleged assault occurred on 12 June 2012 and that photographs were taken on the same day;
·The mother said in the course of her oral evidence that the photographs were taken on 12 June 2012 because they were date stamped. The photographs in evidence had no date stamp;
·In the mother’s affidavit filed on 31 May 2017, before the primary judge, no dates were given but the visit to the doctor was recorded to be on the same day as the assault, with the photographs taken a day or two after;
·The doctor’s notes are dated 12 June 2012 but the doctor recorded the assault as having occurred on 9 June 2012 (Affidavit of Dr Q filed on 19 January 2015); and
·In the doctor’s oral evidence, the doctor said that there was bruising on the mother’s neck whereas her notes do not record this.
The primary judge was well aware of these matters and said:
118.The doctor was subsequently shown a number of photographs and confirmed that each bruise or mark shown on the photographs is consistent with the injuries she observed on the mother at the time of her consultation on 12 June 2012.
119.It is submitted on behalf of the father that the doctor’s oral evidence amounts to a rejection of the matters contained in her affidavit as the effect of her oral testimony is that she had no independent recollection of the mother consulting with her, does not know the identity of the person in the photographs annexed to her affidavit and only assumed that the person who had assaulted the mother was the father.
120.I do not accept this summary of the effect of the doctor’s concessions under cross-examination. A careful examination of the transcript of her oral evidence reveals that although she initially agreed to having no independent recollection of a patient and could only rely upon her clinical notes she subsequently gave evidence of a number of matters that she specifically recalled about the mother’s presentation on 12 June 2012 which are not contained in her notes. She also said that the notes she made on that day recorded what she had been told and what she had observed and that the mother had nominated her husband (the father) as the person who had assaulted her.
121.In assessing the mother’s account of this event it is submitted on the father’s behalf that a record of injury to the mother’s neck is a significant absence from the doctor’s clinical notes. However the doctor did depose to seeing bruising on the mother’s neck in her affidavit. There were other specific matters that the doctor could recall about this consultation which were also not contained in her notes.
122.It is also submitted on behalf of the father that there is considerable uncertainty about the photographs which the mother took following this alleged assault which were later shown to the doctor. Weight is attached in this regard to the doctor’s concession that she could not identify the person depicted in the photographs which she was shown many months after the consultation with the mother. However, although the photographs annexed to the doctor’s affidavit are very poor copies it is apparent that they are the same photographs as those annexed to the mother’s affidavit which she deposes to taking a day or two after seeing the doctor.
123.Although the mother was cross-examined at length about the issue and did appear somewhat confused about the exact date upon which she took the photographs there was no doubt in the mother’s mind that these photographs depicted the injuries she says that she occasioned in this assault. It was not suggested to her that any person other than herself is depicted in the photographs or that they were taken at another time entirely. The photographs annexed to the mother’s affidavit show what appears to be bruising around her cheek, eye, forearm and other parts of her body which cannot clearly be identified. It was not suggested to the mother that the bruising shown in the photographs was unrelated to this incident.
124.In these circumstances I am satisfied that the photographs annexed to the mother’s affidavit which depict bruises on various parts of her body were taken shortly after she says she was assaulted and are the same photographs as shown to the doctor many months after the event.

Her Honour’s reasoning is cogent and, with respect, entirely correct. The father’s submissions highlight relatively trivial issues and ignore the points of substance.

Incident in August 2012

The mother alleged that during the course of an argument about a telephone bill in August 2012, the father grabbed at her dress and ripped it.
The father’s case on this issue was a blanket denial that anything untoward occurred at that time. Consistently, as discussed earlier, there was no proper basis upon which it could be said that he should have proffered his own version of the incidents or put anything other than the suggestion to the mother that nothing had occurred.
Her Honour appears to have taken into account the fact that the father did not address this incident in his affidavit and that there was little cross-examination of the mother on it.
It follows that her Honour erred in taking this into account. However, that error, to our minds, is of no substance. There was clearly independent evidence supporting the mother’s other allegations on which the primary judge could and did rely to accept the mother’s evidence on this issue. In any event, this was not one of the more telling incidents.

Incident on 19 November 2012

The mother alleged that an assault occurred on 19 November 2012 where the father pulled and grabbed her hair, dragged her along the ground, shook her head and spat in her face. The father denied this.
The mother went to the police and made a statement on 28 November 2012 which the primary judge considered to be “broadly consistent with her affidavit” (at [130]). In addition, the mother’s doctor recorded on 12 December 2012 that a “[r]ecent domestic violence episode results in police attendance and relocation to a women’s refuge and AVO” (at [132]).
Again, the father asserted that the primary judge took into account his failure to give his version of the incident in his evidence. He could not do so because he simply denied it.
However, the primary judge also took into account a statement that the mother made to the police about it on 28 November 2012 and the doctor’s notes of an attendance on 12 December 2012 (at [130]–[132]). That supporting material and the findings as to other incidents easily justifies the primary judge’s finding.

Conclusion

After a discussion of the above matters, her Honour concluded:
136.In summary, in making findings as to family violence I attach weight to the mother’s consistent accounts concerning a number of serious physical assaults upon her in October 2011, December 2011, June 2012 and November 2012 which she has maintained since first seeking assistance from police in November 2012. Although there are some inconsistencies between her account to police and her affidavit and some inconsistencies particularly as to dates which were revealed under cross-examination in general the accounts have remained very consistent. It is also significant in my view and a matter to which I attach weight that her accounts of each of the incidents are rich in detail whereas the father provides no version at all of any of the alleged incidents including an occasion which resulted in him pleading guilty to an offence. This event clearly related to the mother’s allegations of an instance of serious violence in June 2012. It became apparent under cross-examination that the father did have some memory of each of the incidents and according to his memory he did nothing untoward or in the case of the last incident in November 2012 even may have put himself forward to police as a victim. In these circumstances where he provides no explanation for his failure to provide an account of each event in his affidavit I consider that the more reliable account is that given by the mother, to which she has remained firm in all its rich details after testing in two proceedings. I also attach weight to corroboration by the maternal grandmother of the mother’s version of the incident in about October 2011 and the mother’s contemporaneous complaints of assault by the father to a doctor who observed bruising to various parts of her body in June 2012. The doctor also recorded that the mother consulted her in December 2012 and reported a further recent incident of domestic violence which had led to police intervention and the mother relocating to a refuge consistent with her account and police records. For the reasons given I attach little weight in making these findings to the factors identified as relevant in submissions made on behalf of the father such as a general credit finding, the records of the parenting support program, alleged deficiencies in the evidence of the mother’s doctor and inconsistencies said to be of significance in the mother’s account.
We do not see any error in her Honour’s approach (at [136]) as set out in the above paragraph, despite the inclusion of some of the errors that we have identified. Each of the alleged assaults were denied by the father. Some were, however, supported by independent and cogent evidence as set out by her Honour, including the doctor’s notes and the husband’s guilty plea. That, of course, made it easier for her Honour to accept the evidence of the mother where there was no independent evidence supporting her version of the incidents. Such is a perfectly orthodox piece of reasoning.

Did the primary judge fail to take into account her findings in relation to the May 2018 alleged assault on the child by the father?

We have already set out a general description of this incident which the primary judge dealt with in the following way:
202.I am unable to find that the father assaulted the child as alleged by the mother on the balance of probabilities for the following reasons. First, I reject the mother’s evidence that the child had bruising and swelling in particular around his left eye. The medical records do not suggest observations in these terms but rather describe the child as having mild discolouration and swelling around both eyes (Exhibit 20). Further, photos of the child taken in various settings and over a lengthy period of time show that some level of puffiness and discolouration around his eyes is often a feature of the child’s presentation.
203.Further, there is no record from the school that the child made any disclosure as to the father’s alleged abuse until the mother’s intervention in the conversation which is recorded by the school teacher as the mother “pressing” the child and causing him to become emotional.
204.I also attach particular weight to the police records which vary significantly from the mother’s evidence. These records indicate that when the mother attended with the child to report the alleged assault by the father police were unable to speak to the child separately as she “began speaking for him” and that she also attempted to point out injuries on the child stating that he had bruising to the right side of his face. It is recorded that the child stated that the father did not touch him to the right side of his face and the police could not see any injuries on the child.
205.As the mother had informed police that she had also taken the child to the hospital police records indicate that an officer spoke to the hospital Child Protection Unit and it was confirmed that the child had been brought in, looked at and discharged. A further police record in relation to the incident indicates that the version of the event given by the child to police was to the effect that on the Saturday evening (19 May) the father instructed the child to get ready for bed but the child did not hear this instruction and was distracted by his IPad. The father then threw a … nappy at the child which hit him in the face and approached the child and said in a loud voice “get ready for bed”. It is then recorded:
The child explained in simple terms that his father approached him, placed his hand over the child’s head with all four fingers and his thumb around the circumference of his scalp, with the thumb resting against the child’s left temple. The child says that his father “pressed” against the child’s head with his thumb while saying “stop being distracted” and that this press caused the child to feel momentary pain to his temple area.
206.It was the assessment of the police that the father’s actions may be characterised as “lawful chastisement” and no further action was taken.
207.It is also in my view difficult to accept the mother’s evidence that on 22 May when the child saw the dentist the child was wearing glasses to protect his eyes and a large sunhat during the entirety of the dental appointment.
208.Finally, the mother’s whole account including a letter sent by her lawyer presumably on instructions that the child was bruised as a result of being “punched” by the father, has an air of exaggeration and is significantly at odds with the independent and reliable records referred to.
The first submission was that the primary judge took the correct approach in determining the likelihood of the May 2018 incident happening as alleged by the mother (that is by looking at independent external evidence to see whether it supported the mother’s allegations or not), but did not take the same approach to the other allegations made by the mother.
We do not agree. We consider that her Honour took exactly the same approach to each of the mother’s allegations, which was to look to see what, if any, independent external evidence existed that cast light upon the probability of the allegation being established.
In relation to the May 2018 incident, her Honour considered that the medical records and the police records did not support the mother’s allegations and that there were matters that pointed against the mother’s allegations. It follows, therefore, that the error identified cannot be established.
The second submission was that the primary judge’s reasons fail to consider the mother’s “untruthfulness” as to the May 2018 incident when dealing with her allegations of the father’s violence to her.
In his written submissions to the primary judge, the father submitted that the mother’s evidence on this issue demonstrated that the mother was manipulative, had deliberately distorted events to provide evidence in the light most favourable to her and was mendacious (Father’s Outline of Submissions filed on 30 July 2018, paragraph 5).
At [136], which we have already set out above, her Honour expressly attached little weight “to the factors identified as relevant in submissions made on behalf of the father such as a general credit finding” (at [136]). Thus, we consider, that the primary judge did consider the point.
There is no inconsistency in this. As we have said above, it is well established that a trial judge may accept part of a witnesses’ evidence and reject other parts (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322).

Would the primary judge have come to a different finding if she had dealt with all the evidence?

As we have explained, in addition to the complaints about the specific incidents which we have set out above, the mother gave more general evidence of continued assault and evidence as to the demeaning and controlling behaviour of the father. Once again, the father says that having regard to the whole of that evidence, which he submitted was marked with a number of inconsistencies, the primary judge should not have accepted any of it.
We were not taken to anything of substance by the father, in addition to the specific complaints which we have already discussed. We cannot take this aspect of the matter any further.
Overall, Ground 1 does not succeed.

Conclusion

The father has succeeded on two grounds of appeal of substance. Therefore, the orders must be set aside and, most unfortunately, the matter must be remitted for a second rehearing.

Costs

No order for costs was sought in the event that the appeal was successful. However, each of the parties and the ICL sought a certificate under the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) for costs incurred in relation to the appeal and for the rehearing of the matter.
In the circumstances, it is appropriate to grant such certificates.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Austin JJ) delivered on 3 December 2019.

Associate:

Date: 3 December 2019