· 2022-01-18T16:57:25+0000 · 664 posts

Father Challenges Parenting Orders

Bobal & Bobal [2021] FedCFamC1A 97 (22 December 2021)

Parenting orders were made for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial and significant time with the father. The father challenges findings made about his perpetration of family violence against the mother, contending that various factual findings were mistaken causing a miscarriage of discretion. The Court, in deciding this dispute, relied upon the adequacy of the primary judge's decisions.

Facts:

The parties were married in 2013 and their only child was born in 2015. They separated in December 2018, when the mother and child departed the former family home to initially stay in a women’s refuge. The father sought a recovery order in respect of the child. At about the same time, the mother applied to the State Magistrates Court to vary the terms of the family violence order earlier made in her favour against the father during their marriage in February 2018.

Interim consent orders were made for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for him to spend time with the father, with the regime increasing rapidly to “equal time” by May 2019. The mother’s application to vary the family violence order was adjourned for hearing until June 2019 but, at the hearing before the magistrate, the father consented to the variation sought by the mother. The order was therefore extended until 2027 and its terms were expanded. The mother applied to vary the interim parenting orders made some months before in March 2019.

Orders essentially provided for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial and significant time with the father (amounting to three nights each alternate weekend, portions of school holidays, and other special occasions). The two contentious issues at trial were the child’s primary residence and the allocation of parental responsibility for him, which each party wanted. Two factual issues dominated the dispute: first, the mother’s allegations of family violence against the father and the extent to which the parties’ co-operation was thereby compromised; and secondly, the father’s allegation the mother was unwilling to foster or support the child’s relationship with him. The mother’s allegations were sustained, but the father’s were not.

Issue:

Whether or not the appeal should be granted.

Applicable law:

Family Law Act 1975 (Cth) Pt VII, ss 4AB - provides that the statutory definition of “family violence” embraces any “violent, threatening or other” behaviour which “coerces or controls” a family member or “causes the family member to be fearful”, with examples provided to demonstrate the expansive breadth of the concept.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 3, r 12.17(1)(a) - pursuant to which, to avoid the further controversy of a costs assessment, the parties conceded a fixed sum could be prescribed.

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 - provided that the soundness of the findings and the sufficiency of the explanation given for them should be discerned from the entirety of the reasons. To do otherwise would be to wrongly embrace, rather than properly avoid, an unduly pernickety analysis of the reasons.

Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148 - where such reasons are clear and sufficient to explain the outcome, which is all that reasons for judgment need do.

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 - provides that aside from the high hurdle the father must surmount to sustain a complaint about the attribution of inadequate weight to a piece of evidence which he found attractive.

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 - provides that unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor.

Analysis:

The father contends that the factual findings were mistaken. However, the findings actually draw on the father’s admission of apologising to the mother for his conduct, which he confirmed during cross-examination. The father did not respond specifically in his trial affidavit to the mother’s multiple allegations of his conduct amounting to “family violence”. True it is the father’s trial affidavit was filed two days before the mother’s trial affidavit was filed, but that did not deprive him of the opportunity to respond because the mother’s allegations of family violence were not new. She made detailed allegations in statements and affidavits prepared for use in the separate proceedings conducted before the State Magistrates Court, which were concluded in June 2019.

Those statements and affidavits, which were annexed to the mother’s trial affidavit, were furnished to the father long before the trial of the proceedings began in July 2020. Contrary to the father’s submissions, the mother gave detailed evidence-in-chief about various instances of his behaviour after their separation which, if accepted as being reliable, did indeed fall comfortably within the very broad definition of “family violence” in the Act. The mother's case about her inability to deal with the father was principally built upon his alleged coercive and controlling behaviour.

Conclusion:

The Court dismissed the appeal. The appellant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $15,000.

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