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Mother Opposes Final Parenting Orders

Dansey & Dansey [2021] FedCFamC1A 71 (19 November 2021)

The mother filed an appeal from interim parenting orders.  The mother contends that the primary judge erred in his assessment of findings as to unacceptable risk.  The Court, in adjudicating this dispute, assessed whether the primary judge gave adequate reasons and failed to afford natural justice. 

Facts:

The parties were married in 2008 and separated in May 2021.  There are two children from the relationship.  Prior to May 2021, the parties and children lived in Sydney in the former matrimonial home.  On 10 May 2021, the mother relocated with the children to G Town without notice to the fatherThe mother says she did this after receiving advice from a counsellor in a domestic violence service and from her solicitor.

On 13 May 2021, the father was served with a provisional Apprehended Domestic Violence Order, which he is defending in Local Court proceedings.  

On 17 May 2021, the father filed an Initiating Application seeking both interim and final orders, including an order for the children’s recovery back to Sydney. 

On 3 June 2021, the day before the interim hearing, the mother sought orders that the children live with her and spend no time with the father.  The mother justified those orders on the basis that the father posed an unacceptable risk of harm to the children if he were to spend time with them.

On 30 June 2021, the primary judge made the orders the subject of the appeal, including, relevantly, that the children live with the mother in Sydney and spend specified periods of time with the father supervised by the paternal grandparents.  

On 8 July 2021, the mother filed a Notice of Appeal from those orders, along with an application to stay the interim parenting orders made on 30 June 2021 pending her appeal from those orders.  

On 4 August 2021, the primary judge heard the mother’s application for a stay of orders and on 27 August 2021, dismissed it.  

On 7 September 2021, the mother filed a Notice of Appeal from the order dismissing her stay application, however at the hearing before us, that appeal was dismissed by consent.

The new material now sought to be relied upon by the mother seeks to prove that the paternal grandparents have not strictly supervised the father’s time with the children.  It also inferentially appears to suggest that the father may have sexually abused one of the children during his time with them under the 30 June 2021 orders. 

The father opposes the admission of the mother’s material, but in the event that it is admitted, seeks to rely on material to refute the mother’s claims.  Counsel for the mother conceded that her material does not demonstrate any error by the primary judge, but rather was relevant only upon any re-exercise of the primary judge’s discretion. 

Issues:

I. Whether or not the primary judge erred in his assessment of findings as to unacceptable risk. 

II.  Whether or not the primary judge gave adequate reasons.

III.  Whether or not the primary judge failed to afford natural justice. 

Applicable law:

Family Law Act 1975 (Cth) ss 60CC(2A)60CG - provides that risk is not the only, or necessarily the determinative, factor at play in the crafting of appropriate interim parenting orders, but rather it remains one factor to be taken into account

Family Law Rules 2004 (Cth) r 5.09 - provides for the prohibited evidence which can be given by a party, from being given by another witness. 
 
Bennett and Bennett (1991) FLC 92-191[1990] FamCA 148 - the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2[1989] VR 8 as follows:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a) The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) Justice is not seen to have been done. 
 
Gronow & Gronow (1979) 144 CLR 513[1979] HCA 63 - relied upon as the father says, in the final analysis, the gravamen of the mother’s complaint under this ground is really that the primary judge’s error was that he “failed to place greater weight upon the [m]other’s allegations” which challenges face a very high bar. 
 
House v The King (1936) 55 CLR 499[1936] HCA 40 - where the High Court said that the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 
 
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 - provides that the denial of serious allegations of risk to children does not mean that in interim proceedings, a court can thereafter ignore them. 
 
Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2(1989) VR 8 - provides that if the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected. 

Analysis:

The mother contends that the Primary Judge erred in the exercise of discretion by failing to consider, apply and make findings directed towards the principles discussed in M v M (1998) 166 CLR 69, and cases such as W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 (Full Court), as regards the existence of, and evaluation about, an unacceptable risk of sexual abuse.  It was further asserted that his Honour's findings reflect an incorrect evidential approach which does not accord with the task identified in the mentioned cases, as regards the existence of, and evaluation about, an unacceptable risk of sexual abuse.  However, the primary judge's reasons relating to his assessment of the risks posed by the father include allegations that the father was physically and sexually violent to her and the children which the gravamen of the mother’s complaint under this ground is really that the primary judge’s error was that he “failed to place greater weight upon the [m]other’s allegations”. 

The mother submitted that the Primary Judge failed to give reasons as to why the Paternal Grandparents are appropriate supervisors of time between the Father and the children in circumstances where the Appellant contended that they were not.  However, the primary judge noted that the father’s explanation of the mother’s allegations was consistent with his allegedly improper conduct being benign.  While the primary judge said that “the father’s rejection of the [mother’s] allegations are as open to a finding as are the mother’s allegations” nonetheless, the primary judge imposed a regime of supervision of the father’s time with the children in response to a risk of harm posed by the father. 

Conclusion:

No grounds of appeal challenging the parenting orders were established.  The Court dismissed the appellant’s Application in an Appeal filed 12 October 2021.  Save that he has leave to rely upon his financial statement dated 18 October 2021, the respondent’s Application in an Appeal filed 19 October 2021 is likewise dismissed.  The appellant is granted leave to rely upon her financial statement dated 19 October 2021.  Appeal EAA 73 of 2021 is dismissed.  No later than 4.00 pm on 26 November 2021, the appellant should file and serve any material and submissions as to costs.  No later than 4.00 pm on 3 December 2021 the respondent should file and serve any material and submissions as to costs.  No later than 4.00 pm on 8 December 2021 the appellant should file and serve any material strictly in reply to any material filed under Order 6 hereof.  Otherwise the question of costs is reserved.

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