Appellant Opposes Father's Sole Parental Responsibility
Blass & Blass [2022] FedCFamC1A 63 (13 May 2022)
Ms Blass appeals from a parenting order made on 16 July 2021 by the primary judge of the Federal Circuit Court. The primary judge ordered for the respondent to have sole parental responsibility. The Court, in determining whether or not the appeal should be granted, relied upon the Evidence Act 1995 (Cth).
Facts:
The parties commenced a relationship in 2007 and married in 2008. The appellant had two daughters from a previous relationship. She performed the role of primary carer for all the children, including the two born in the marriage between the parties.
In 2015, the parties separated on a final basis and, following contested proceedings before the primary judge, final orders were made on 12 October 2018 providing for equally shared parental responsibility and for the children to live with the appellant and spend weekend and holiday time with the respondent. The primary judge made findings of family violence against the respondent.
The primary judge was confronted by further allegations of family violence against the respondent, with assertions by the appellant that child X was behaving abusively toward the appellant and in a sexually aggressive manner toward child Y (which was described as “problematic harmful sexual behaviour”).
The primary judge was also faced with a history of serious non-compliance with the previous final orders of 12 October 2018 by the appellant. This non-compliance had resulted in the appellant being placed on a bond, a step that did not stop her continued non-compliance in the lead up to the trial. The respondent and the Independent Children’s Lawyer (“ICL”), both sought the reversal of residence that was ordered by the primary judge.
The primary judge concluded that the appellant’s account as to the problematic harmful sexual behaviour was untruthful. In reaching this conclusion, the primary judge relied, in part, upon the failure of the appellant to call either the maternal grandmother or her adult daughter Ms E in support of her descriptions of child X’s behaviour.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Evidence Act 1995 (Cth) s 140 - provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
Federal Proceedings (Costs) Act 1981 (Cth) s 6 - provides that where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
Federal Proceedings (Costs) Act 1981 (Cth) s 8 - where in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial.
Federal Proceedings (Costs) Act 1981 (Cth) s 9 - provides that the certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
ASIC v Hellicar [2012] 247 CLR 345; [2012] HCA 17 - provides that disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led.
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 - provides that it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.
Boensch v Pascoe [2019] 268 CLR 593; [2019] HCA 49 - emphasized the importance of judicial economy in considering whether to deal with grounds that are not dispositive of the appeal.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 - provides that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.
Analysis:
Although the primary judge subsequently identified that she was not satisfied that the appellant had been malicious in doing so, the primary judge treated the appellant’s assertion of sexualised conduct as a fabrication, and thereby abusive of the children, particularly in her engagement of the children in counselling for such and in the labelling of child X as having engaged in such conduct.
While the failure to accept a witness’s evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found. The grave allegation of untruthfulness and its concomitant finding of abuse of child X as essential aspects of the determination of the case constituted, in accordance with s 140 of the Evidence Act 1995 (Cth), a factual conclusion that required persuasion, itself, on the balance of probabilities. It was not established on the mere failure by the appellant to prove that the behaviours had in fact occurred to that same standard.
Conclusion:
The Court allowed the appeal. The orders of the primary judge will be set aside from the point at which a judge of Division 2 of the Federal Circuit and Family Court of Australia makes further orders. The matter is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge. The Court grants to the parties, including the ICL, a costs certificate.