Family Law Case Note: Jabbar & Gade [2017] FamCAFC 106 (7 June 2017)

 

Summary

This matter involved four appeals to the Full Court of the Family Court being:

1. An appeal against parenting orders;
2. An appeal against section 68B injunctions;
3. An appeal against dismissal of contravention application;
4. .  The father had applied to the Federal Circuit Court for a copy of the transcript of completed parenting proceedings.  His application had been refused and the father appealed that determination.

The matter for determination also involved an application in an appeal – being an application to adduce further evidence.  The application was refused and the appeals were all dismissed.

The matter also dealt with costs applications where the appellant was wholly unsuccessful and the Court considered that impecuniosity is no barrier to a costs order and costs could be met from the appellant’s property settlement such that the applications for costs were granted.

 

Legislation Cited

Family Law Act 1975 (Cth) ss 68B, 69ZQ(1)(a), 70NAA(1), 70NEA, 94AAA(3), 94AAA(7), 117(1)-(2), 117(2A), 117(5)

Federal Circuit Court of Australia Act 1999 (Cth) ss 17A(2), 42

 

Cases

Caballes & Tallant [2014] FamCAFC 112

CDJ v VAJ (1998) 197 CLR 172

Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513

Jabbar & Gade (No. 3) [2016] FamCAFC 218

Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725

 

Hearing date: 30 May 2017

Judgement of: Ryan J

Date of Judgment: 7 June 2017

Place of Judgment: Sydney

Lower Court Judgment Date: 11 March 2016; 26 July 2016; 23 March 2017 and 20 April 2017

 

 

ORDERS

1. The Four appeals were dismissed.
2. The mother’s application to adduce further evidence in appeals were dismissed.
3. The mother was ordered to pay the fathers costs and ICL’s costs of and incidental to the appeals and the costs are to be paid from the mother’s entitlement as ordered pursuant to section 79 of the Family Law Act 1975 (Cth).

 

 

SUMMARY OF REASONS FOR JUDGMENT

1. The mother and father have two children together, a daughter, X, who was born in 2006 and a son, Y, who was born in 2012.
2. The parties separated in mid-August 2015.
3. The matter went to Court and allegations were made by each party about the other and the risks they said the other posed to the children.
4. On 31 August 2015 Judge Terry made interim parenting orders which included the children to live with their father and spend supervised time with the mother (who had been a stay at home parent) at a contact centre.
5. This involved a significant changes in the childrens lives including no longer living in the family home and because the father needed to work, his parents and other members of his family became involved in the care of the children.
6. The listing before the primary judge for final hearing is due to commence on 7 August 2017 for five days.
7. Judge Ryan said at paragraph 5:

 

“Almost as soon as the ink was dry on the orders of 31 August 2015, an unbelievable array of applications to change the orders, contempt and contravention applications, appeals and associated applications were unleashed. Only a small number of applications were commenced by the father.”

 

8. The mother ultimately sought that the appellate court re-exercise the discretion of the primary judge and make interim orders that she have sole parental responsibility for the children, for the children to live with her and to spend time with the father at a contact centre (essentially a reversal of the current interim orders). Further, the mother wants the father charged with contempt for “providing fake evidence” and the trial be allocated to a different judge in a different registry. Notwithstanding her desire for a different judge, the mother was clear that she does not plan to participate in the final hearing. This is irrespective of constitution of the court.
9. Justice Ryan noted that the appellate court could only re-exercise the discretion of the primary judge if error in the relevant sense was established and the Court was persuaded it is appropriate to re-exercise rather than remit the matter for re-hearing.
10. Justice Ryan also noted that any re-exercise must take into account the expert opinion of Dr A who was retained by the parties (and independent children’s lawyer (“ICL”)) to investigate and report upon the children and the parties. She said,

“Although the report is untested, it is evidence which was given significant weight by the primary judge and which on any re-exercise I too would give significant weight. This is mentioned at the outset because it demonstrates the high hurdles faced by the mother to achieve her desired outcome at this stage.”

11. Dr A opined that it is in the best interest of the children for them to live with the father and to not spend time with the mother. He considered that the mother presents with a severe personality disorder, that is, with narcissistic, borderline and some histrionic personality features [234]. He was concerned about the manner in which she interacted with the children at the contact centre and in observation with him [282] and said that even in a supervised setting or the mother’s conduct involved a “risk of impact on the children’s character development, and disruption of the children’s wellbeing in the context of paternal care, and disruption of the children’s relationship with the father and paternal extended family” [218, 219].
12. At paragraph 12, Justice Ryan said,

 

“Dr A explained that “the children have to work hard at meeting the mother’s emotional needs” [277], and have been exposed to “maternal emotional and physical abuse” [357]. He opined that there “are significant risks to the children in the care of the mother, and no significant risk in the care of the father” [386]. Their life experiences to date put them in need of “better-than-average-parenting” [362] which the father but not the mother could provide.

 

13. There was video footage which involved the mother hitting the daughter and making threats to kill.  The mother was convicted of common assault against her daughter and her conviction was overturned on appeal. The mother’s contended that neither the expert nor a court exercising jurisdiction under the Act could have any regard to the video and/or what took place.
14. Justice Ryan said at paragraph 22,

 

“…When regard is had to the different standards of proof which apply to a charge of common assault and in parenting proceedings and, in particular, Division 12A of Part VIII of the Act, without more, such an approach cannot be sustained.”

 

15. At paragraph 43, Justice Ryan said,

“Dr A’s report was received by the Court on 23 March 2017. The matter was listed that day and the report was released to the parties and ICL. Based on the observations made by the expert, particularly in regards to supervised time and his recommendation that the children spend no time with the mother, the ICL was given leave to make an oral application to immediately “discharge the supervised time order” (Reasons for Judgment, 23 March 2017 at [13]). The primary judge refused to discharge the order but agreed with the submission made by the ICL that the mother’s time with the children should be suspended until the next court date on 19 April 2017. So as to give effect to the restriction on contact a series of injunctions were made pursuant to s 68B which restrained the mother from approaching the children or having contact with them. The injunctions are more comprehensive than those contained in Order 6 of 9 December 2015 but in reality with all orders for time suspended they merely achieved the same outcome.”

Section 69ZQ(1)(a) provides that the Court must decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily. Although the primary judge did not explicitly refer to the subsection, there can be no doubt that her actions were informed by it.

16. The mother as one of grounds to one of the appeals related to an assertion of error as to weight and accordingly in the exercise of discretion as to the risk the father posed to the children.

Justice Ryan said,

“ As to weight, it is well settled by authority that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 520 per Stephen J). This is particularly brought into focus in respect of parenting orders which invariably involve assessments as to the future, including as to risk (CDJ v VAJ (1998) 197 CLR 172 at 218) (“CDJ v VAJ”).

The primary judge specifically addressed the issue of risk at [40], [67], [77] and [82] of the reasons and identified at [34-37] evidence of statements made by the daughter at the contact centre concerning the father and paternal grandparents. Her Honour ultimately came to the view that the children are not at risk of being abused in the father’s care. The mother has not demonstrated that this conclusion was not available.

45. The children had a relationship with their mother up until the orders were made on 31 August 2015. They continued to see her until quite recently. They are not going to lose their relationship with her if they do not see her for the next four months.
46. If the Court determines after a final hearing that it is appropriate that time be resumed then the children are not going to lack any ability to resume that relationship and as I observed during submissions this is not a case where there is compelling evidence at the moment that I should be concerned that if the children do not see the wife for the next four months and are exclusively in the care of their father that there is going to be denigration or undermining behaviour which will cause them to lose their relationship with the wife or have difficulty picking it up again.

 

APPLICATION TO ADDUCE FURTHER EVIDENCE

17. The mother was asked to explain why the documents should be admitted, and she said they would be “helpful”. Without more, the court did not consider that this was a sufficient basis to admit further evidence in an appeal (see CDJ v VAJ).
18. The documents did not go demonstrate the decision made in the particular appeal was erroneous and was the issue of relevance to a re-exercise did not arise.

COSTS

19. Submissions from the parties on the question of the costs of the appeals were sought at that time to save the parties time, trouble and expense of them making those submissions at a later time.
20. Both the father and ICL sought costs in the event that the appeals were unsuccessful.
21. The issue of costs on an appeal is governed by s 117(1) of the Act which provides that each party to proceedings under the Act bear his or her own costs, unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what order (if any) should be made under subsection (2), the court must have regard to the factors in s 117(2A).
22. While the Court could not make specific findings about the financial circumstances of the parties. It was known that the father had fulltime employment and had rental expenses and was meeting the children’s expenses.
23. The mother lives in the family home and has a research position, although it was not clear if this was paid or voluntary.
24. Judge Ryan noted,

“..it is well settled that impecuniosity is no absolute barrier to an order for costs. The mother’s appeals have been wholly unsuccessful and there can be no doubt that the father has incurred expenses unnecessarily. It is appropriate that the mother pays his costs.”

 

 

 

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This article does not represent the views of the firm. It a case note based on a decision made by the Full Court of the Family Court in relation to a family Law Appeal, an Application to Adduce further Evidence, and family law cost applications

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