Father Opposes Final Parenting Orders & Injunction
Hedlund & Hedlund [2021] FedCFamC1A 84 (15 December 2021)
The primary judge made orders providing for the mother solely to exercise parental responsibility for the children. Orders that the children will spend no time with the father are buttressed by injunctions that prevent him from approaching or contacting the children or the mother, subject to the mother providing her consent otherwise in writing.
The appellant father asks that the parenting orders be set aside and that the proceedings be remitted for rehearing. The Court, in adjudicating this dispute, assessed whether the injunction under s 68B of the Family Law Act 1975 (Cth) is affected by error of law.
Facts:
Mr Hedlund (“the father”) and Ms Hedlund (“the mother”) commenced living together in April 2007 and married in November 2008. They have two children. Their oldest child, X, was born in 2011 and their youngest, Y, in 2013. The parties separated in April 2017.
Y has been diagnosed with autism spectrum disorder, but with lower needs and without behavioural disorders. X has exhibited major behavioural problems in the care of the mother. X has assaulted the mother and has repeatedly absconded from her under circumstances that place him in danger. Each of the parties asserted at trial that the other had been the perpetrator of family violence upon the other. The father asserted that the mother suffers from mental health issues that compromise her capacity as a parent.
Orders were made by a judge of the Federal Circuit Court of Australia (as the Court was then known) on 14 September 2020 providing for the mother solely to exercise parental responsibility for the children, for the children to live with her and for the father to spend no time with the children, that the children will spend no time with the father are buttressed by injunctions that prevent him, in general terms, from approaching or contacting the children or the mother, subject to the mother providing her consent otherwise in writing.
By Further Amended Notice of Appeal filed 30 June 2021 the appellant father asks that these parenting orders be set aside and that the proceedings be remitted for rehearing. The property orders which provided for a 75/25 split of the property and superannuation interests of the parties in favour of the mother are not challenged by the father unless the parenting proceedings are remitted for rehearing, in which circumstance the father seeks that the property proceedings also be remitted. By Amended Notice of Cross-Appeal filed 9 July 2021, the respondent mother seeks that orders compelling the sale of a property to satisfy the judgment payment to the father be set aside and, in the re-exercise of discretion, that alternate orders be made providing for the payment to be made to the father.
The orders are such that the father will receive a cash payment of about $5,000. They mandate the sale of an investment property held in the name of the mother in order to make this payment. It is the sale of the investment property as the primary mechanism of payment that the mother seeks to avoid by her cross-appeal. The father has applied for further evidence to be received on the appeal, with the mother filing evidence responsive to such.
The central aspects of the father’s evidence are that it shows that the elder child has previously run away and is presently in the care of the State welfare authority as a result of the escalation of his behaviour following the making of the orders.
Issue:
I. Whether or not the primary judge took into account irrelevant considerations
II. Whether or not the primary judge made a mistake as to the facts.
III. Whether or not the injunction under s 68B of the Family Law Act 1975 (Cth) is affected by error of law.
IV. Whether or not the effect of the orders is manifestly unjust or unreasonable
Applicable law:
(b) the nature of the subject-matter of the proceeding; and,
(a) identify the statutory power under which the order was made (to avoid a construction leading to invalidity);
(b) address the language used, to identify a plain meaning if one is available;
(c) if latent ambiguity is alleged, refer to the reasons for judgment and the application to which the order responded;
(d) in the event of ambiguity (or other uncertainty), not resolved by reference to the reasons for judgment and the terms of the application, look to the submissions and (possibly) other material before the judicial officer on the application.
Analysis:
I. Whether or not the primary judge took into account irrelevant considerations
II. Whether or not the primary judge made a mistake as to the facts.
III. Whether or not the injunction under s 68B of the Family Law Act 1975 (Cth) is affected by error of law.
IV. Whether or not the effect of the orders is manifestly unjust or unreasonable
What preceded the calling of Dr L was the father’s tender in the proceedings of three earlier reports prepared by Dr L which he had annexed to his affidavit filed 24 July 2019. While the father may not have anticipated the calling of Dr L until the hearing commenced, the evidence and relevance of Dr L was a live matter at the proceedings at the instigation of the father. The father was afforded notice within the proceedings of the opportunity to cross-examine Dr L. Dr L did not give evidence until the second day of the trial. This ameliorated the effect of the granting of permission to call Dr L as a witness at the commencement of the hearing, as it provided some opportunity to the father to prepare any cross-examination.
The father argued that both the injunctions and the PPO are beyond power, falling outside s 68B of the Act by virtue of their indefinite length, extending them into the children’s adulthood, and by the lack of a mechanism for discharge. Despite the description in the notes, the PPO does not reflect the various injunctions imposed at Orders 9–10 as it incorporates additional restraints upon the father. Hence, whatever the PPO might be, it does not meet the description contained in the notations, and is not a document evidencing the terms of the injunctions.
In terms of specific complaint about Dr L, the father, in his Summary of Argument, submitted that as opinion evidence it was required that there be adequate disclosure of how Dr L had reached various conclusions. It was asserted that there was a lack of clarity that would bear upon the admissibility of Dr L’s evidence. The weight assigned to a consideration arising out of the evidence is not a recognised basis for appeal. Even if these challenges, questioning how Dr L came to various conclusions, are taken as going to the relevance of Dr L’s evidence rather than the weight attributed to it, they are not ultimately matters that render the evidence irrelevant.
Conclusion:
The Court dismissed the appellant’s Application to Adduce Further Evidence filed 16 June 2021. The document entitled “Final Personal Protection Order” which is annexed to and referred to in Notation A of the orders made by the Federal Circuit Court of Australia on 14 September 2020 is set aside ab initio. An error of law in relation to the Personal Protection Order was established. Order 24 of the orders of 14 September 2020 is discharged. The balance of the appeal contained in the Further Amended Notice of Appeal filed 30 June 2021 is dismissed. The cross-appellant’s cross-appeal contained in the Amended Notice of Cross-Appeal filed 9 July 2021 is allowed. Orders 17, 18 and 19 of the orders of 14 September 2020 are discharged.
