Father Opposes Parenting Orders

Lim & Zong [2022] FedCFamC1A 146 (20 September 2022)

The father filed an appeal from orders allowing no time and no communication of the child with the appellant. The Court, in determining whether the appeal should be granted assessed, patterns of coercive and controlling conduct as well as family violence.

Facts

The parties married in 2006 in Country Q and, in 2007, relocated to City K where the child was born in 2012. The child is now 10 years old. The parties separated in 2012 while on a trip to Country Q. Upon returning to Australia in January 2013, the mother relocated to City P with the child while the father remained in City K.  A divorce order was made in November 2014 and subsequently came into effect in December 2014.

The matter was initially finalised by consent orders on 27 October 2014 for equal shared parental responsibility and for the child to live with the mother, with arrangements for the child to spend time with the father in both cities. The parties’ relationship remained strained and, on 11 July 2017, the child was held over in City K by the father, which necessitated the mother seeking a recovery order for the child to be returned.  A further recovery order was granted in September 2017, after which time orders were made for the child to spend time with the father in City P.  The matter remained before the Court because, in his response to the mother’s application for a recovery order, the father sought new parenting orders. 

On 20 September 2019, following an interim hearing, interim orders were made ceasing the child’s time with the father based on an unacceptable risk. The father successfully appealed those orders in the Full Court, constituted by a single judge, where it was determined that in the context of an interim hearing and absent the testing of the parties’ evidence through the process of cross-examination, it was inappropriate for the primary judge to make findings of fact that the father had engaged in a pattern of family violence primarily by various acts of coercive and controlling behaviour. The mother, in this appeal, contends that the emails attached to the evidence she has submitted for the purpose of those interim proceedings provided ample basis for the primary judge arriving at the findings he made which, it is contended, were justified on the evidence.  

Issue

Whether or not the primary judge’s reliance on the evidence before him at first instance is justified. 

Applicable law

Family Law Act 1975 (Cth) s 117 - provides that each party to proceedings under this Act shall bear his or her own costs. 

de Winter v de Winter (1979) FLC 90-605 - provides that an appellate court will not be concerned with a mistake of fact made by a trial judge that has not affected the final result of the proceedings.

 

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - provides that an appeal court should not interfere with a finding of fact if there was evidence on which that finding could be made; that is, if it was reasonably open on the evidence.

Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 - provides that there is an obligation on an appellant to properly particularise the asserted errors which they contend were made by the primary judge.

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 - provides that appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.

 

Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23 - provides that litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional cost, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules.

 

Stoian v Fiening (Costs) [2014] FamCA 944 - provides that the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available.

 

Whisprun Pty Limited (formerly Northeast Exports Pty Limited v Dixon (2003) 200 ALR 447; [2003] HCA 48 - provides that in delivering reasons for judgment, it is not incumbent upon a trial judge to “mention every fact or argument relied on by the losing party as relevant to an issue”.

Analysis

The father had engaged in a long-term pattern of pervasive, coercive, and controlling conduct directed towards the mother. This campaign of coercive and controlling conduct carried out by the father included sending offensive emails to the mother, extending back to 2014. Those emails are set out in Annexure “YYZ-06” to the mother’s affidavit filed 28 September 2022 and extend over 30 pages, including a series of emails spanning five years in which the father seeks to coerce the mother into taking a particular course of action. Those emails, which the father eventually admitted to sending to the mother, include threats made by the father to self-harm and include highly offensive language. 

It was not contested in the proceedings that the mother was the primary carer of the child and that the child should continue to live with the mother, the primary judge concluded, justifiably, that orders requiring the mother to facilitate the child spending time with and or communicating with the father would have such an adverse psychological impact upon the mother that it would, in turn, vicariously impact upon the child.  In addition to the father’s pattern of sending offensive and coercive and controlling emails to the mother, the primary judge made a finding that the father had engaged in conduct which constituted family violence.

Conclusion 

The appeal is dismissed. Within 14 days, the appellant's father is to pay the costs of the respondent mother in the sum of $4,671.90.  Within 14 days, the appellant father is to pay the costs of the Independent Children’s Lawyer in the sum of $4,671.90.

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