Family violence issues given insufficient weight

Family violence issues given insufficient weight

Salah & Salah  [2016] FamCAFC 100 (17 June 2016)

The following is annotated.

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the trial judge failed to give sufficient weight to issues of family violence and failed to have regard to and apply s 61DA(3) of the Family Law Act 1975 (Cth) – Where interim parenting orders providing for the respondent’s time with the children to be supervised had been made by consent shortly before the interim hearing – Where the trial judge made interim orders removing the need for supervision – Whether the trial judge erred in failing to give adequate reasons – Appeal allowed.

Family violence

17. The mother made allegations of family violence against the father. He in turn made allegations against the mother. The trial judge acknowledged a distinction in the nature of the allegations by referring to those of the mother in the following words:
    31. The mother alleges significant family violence of a coercive and controlling nature being perpetrated on her by the father at times in the presence of the children.

32. The father denies any physical violence.

33. He concedes at times heated arguments on infrequent occasions.

(emphasis added)

18. The allegations of the mother concerned a range of behaviour from verbal and emotional abuse to physical abuse in the form of punching her and damaging her property, some of which was said to be in the presence of the children. The father conceded that he had yelled during an argument on occasion but denied ever being physically violent. The father alleged that the parties’ verbal disputes escalated when the mother refused to stop arguing, and he said that she made false allegations against him. He alleged the mother yelled at him and hit him in front of the children, as well as being physically violent to the children when she was frustrated.

THE REASONS OF THE TRIAL JUDGE

23. His Honour discussed the allegations under the heading; “Other Asserted Evidence – subject to conjecture”. Thereafter, from [31] his Honour set out the mother’s allegations. His Honour said:
    31. The mother alleges significant family violence of a coercive and controlling nature being perpetrated on her by the father at times in the presence of the children.

32. The father denies any physical violence.

33. He concedes at times heated arguments on infrequent occasions.

34. The mother sought through the police and [sic] Apprehended Violence Order. This application was dismissed.

…

36. On 7 June 2015, there was an incident whereby the children came into the father’s care and the police became involved. It seems the police imposed a regime on the parents that day regulating their time with the children. The circumstances giving rise to this incident are not agreed, although the police involvement is conceded.
24. His Honour summarised the parties’ positions as the father wanting time with all of the children absent any requirement he be in the presence of any other adult (at [47]) and the mother seeking continuation of the 8 July consent orders with the time the children spend with the father to be supervised rather than to be in the presence of another adult (at [52]).
25. His Honour, under the heading “Determination” returned to the allegations and said:
    58. The evidence lead [sic] as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.
    59. The additional benefit for the older children arising from equal shared parental responsibility is that those children’s involvement with any counsellor will need to be consensual and thereby reportable to both parents.

THE APPEAL

28. By the Amended Notice of Appeal filed 17 November 2015, the mother contends three broad challenges to his Honour’s orders. The first asserts errors of principle in considering the issues of family violence, secondly, that his Honour failed to take into account relevant facts and, as a result, his discretion miscarried and thirdly that his Honour failed to give adequate reasons for his determination.

Error of principle in considering the issues of family violence

69. Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.
70. As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out. It is not needed for the purpose of section 60CC (2)(b).
26. His Honour observed that neither party sought an order for equal time nor had the children experienced that kind of living arrangement.
27. The trial judge at [69] referred to the evidence as “conflicted” and then found that the civil standard of proof had not been met. In our view, apart from applying an incorrect test, such a finding should not have been made as the legislation does not require it.

34. Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean [2009] FamCAFC 206; (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (supra) was emphasised in the decision of Treloar:
    78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. …
35. Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.
36. It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
    68. … the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
37. In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
    18. …that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
38. The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
39. In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
    100. …Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
40. The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH).
41. The difficulty in this case, and one clearly identified by counsel on the appeal, is that his Honour, after correctly observing at [58] that he could not, at that point, make findings on the disputed allegations, continued and said; “…In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.” Simply put, his Honour having determined that he could not make any findings, ignored the allegations and found the presumption of equal shared parental responsibility applied.
42. His Honour’s comment “given no other evidence” suggests that his Honour required corroboration or objective support for the mother’s allegations in proof of them. To so suggest is an error. Family violence often takes place in private in circumstances where no corroboration is available.
43. Further, his Honour’s erroneous treatment of the issue is further demonstrated at [69] where he repeats, again incorrectly, that findings cannot be made as to whether either party perpetrated family violence at an interim stage given conflicted evidence and said; “The civil standard of proof is met by neither”.
44. His Honour’s reference to the civil standard of proof is not only incorrect but entirely inapt in the context of, as he had said, disputed allegations of significant family violence raised in interim proceedings.
45. His Honour was in error in, in effect, failing to pay any heed to allegations which he had earlier regarded as “significant” and in failing to consider those allegations in the context of an interim hearing.
46. In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.
47. The challenge to his Honour’s approach to the resolution of the issues of family violence is made out.

Failure to take into account relevant facts

48. This second challenge to his Honour’s orders contends that his Honour:
    • Erred in making orders which departed from the consent orders of July 2015 absent findings as to a change of circumstances or material facts arising since those orders were made which would warrant a re-consideration of the July orders;
    • Erred in that he failed to take into account the serious, unresolved issues of family violence;
    • Erred in that he failed to take into account that the parties had entered into consent orders with the intention that the terms of the orders would extend beyond the interim hearing; and
    • Erred in that he failed to take into account that the father had consented to an order that the children’s time with him be exercised in the presence of another adult.
49. There was some argument as to what was the mother’s proposal before the trial judge.
50. On appeal, counsel for the father pointed to the transcript of the hearing before his Honour and submitted that the mother had departed from her desire to have the father’s time with the children monitored by his family.
51. The trial judge set out his understanding of the father’s position at [47] and the mother’s position at [47]. His Honour said:
    47. In summary, the father wants time with all of the children absent any requirement he be in the presence of any other adult.

…

52. The mother seeks a continuation of the orders made 8 July 2015, with the time with orders for the father’s time with the children to be “supervised” rather than in the “presence of”.
52. It was submitted for the mother that while her position at trial was that the requirement for the children’s time with the father be in the presence of another adult be changed to that time being supervised, at the conclusion of the hearing the mother’s position was that the July orders should be maintained without change. The following exchange makes this clear:

His Honour: … And the interim parenting orders that your client agitates for are those ones in her initiating application?

Mr Gould: They’re superseded, really, your Honour, by the orders of 8 July.

His Honour: So she wants a retention of those orders

Mr Gould: Retention of those orders, your Honour.

(Transcript 6 August 2015, p. 17, l. 39 – 46)

53. While not exactly as his Honour noted at [47], nothing in the result turns on this discrepancy.
54. The trial judge returned to the allegations of family violence when considering whether to order there be some form of supervision or presence of another adult when the children spent time with the father. At [70], after his Honour considered the times in the past the children had spent time with the father, said:
    70. As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out. It is not needed for the purpose of section 60CC (2)(b).
55. It is clear that the “same reasons” to which his Honour there referred are those to which he referred at [69] that findings could not be made “given the conflicted evidence. The civil standard of proof is met by neither”. That is, there is no reason for the time with the children be monitored because the disputed allegations had not been proven to the civil standard.
56. Section 60CC(2)(b) provides that in determining the best interests of a child, as a primary consideration, the court must consider:

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

57. Clearly then his Honour found not only that the allegations of family violence had not been proven but that there was no risk of family violence necessary to be considered at the interim hearing. We accept the submission of counsel for the mother, that in making the orders he did, and in rejecting the mother’s argument that the father’s time be monitored consistent with his concessions just a month before, his Honour in effect, ignored the allegations of family violence. To do so was to perpetuate the error which has already been established.
58. Senior counsel for the mother submitted that his Honour failed to give sufficient weight to the orders as reflecting a concession by the father that, inter alia, the requirement that another relative be present was in the best interests of the children as the preamble to those orders asserted. Further, it was argued that his Honour failed to take into account those orders, to which both parties agreed made very shortly before the hearing.
59. His Honour said of the consent orders:
    12. Between the date of filing of the Initiating Application and the date of interim hearing, the parties delivered to Chambers a minute of interim parenting orders which was made into orders by consent pending further order on 8 July 2015.
    13. Neither Counsel for either party sought to assert at the interim hearing on 6 August that the Court was precluded from making different interim parenting orders to those made by consent in Chambers o [sic] 8 July 2015 by application of the so called “rule” in Rice v Asplund.
    14. The interim parenting orders fall to be made by consideration of the usual legislative pathway as highlighted in Goode v Goode subject to apply [sic] the “paramountcy principal [sic]” and considering the relevant sections of theFamily Law Act.

(footnotes omitted)

60. His Honour’s reasons reveal that he gave no consideration to either of these matters. His Honour gave no reasons why he effected a change of the position earlier agreed by the parties nor that he considered the father’s concession in Order 5 of those consent orders in any way. Further it was argued, and we accept, that in setting out the terms of the earlier orders, his Honour made no mention of the notation in which the father agreed that the following orders were in the best interests of the children.
61. The facts and circumstances of the making of the recent consent orders, while not determinative of the issue were, in our view important factual background to the issues before his Honour and were worthy of consideration by him. That his Honour did not consider them is, in our view an error.
62. The challenge is made out.

Adequacy of Reasons

63. Senior counsel for the mother submitted that it was difficult to know why the trial judge arrived at the conclusion he did in rejecting the mother’s proposal for some form of supervision.
64. The finding in relation to the presence of other adults must be seen to be a consequence of his Honour’s findings in [58], [69] and [70] to which we have already referred and while we have found his Honour’s approach to be erroneous, his findings in relation to the need for supervision or another adult to be present during the time the children spend with the father are consistent with but redolent of the same error. We accept the contention of counsel for the mother that:
    17. …Whilst the Grounds above agitate from different perspectives, the fundamental error that permeates the entirety is His Honour’s approach to the case seized with the issues of family violence. …
65. Albeit the hearing was truncated, the trial judge was obliged to properly consider the relevant legislation to which we have referred. We are unsure why the mother’s proposal of some modest restriction on the father was rejected in circumstances where there should have been a cautious approach to the family violence allegations and the uncontroversial problems of the child A. In any event, it was incumbent upon his Honour to give reasons for the findings and the orders, and he did not. There was no indication which would allow the mother to understand why he rejected the mother’s proposal that the father’s time be spent in the presence of a relative.
66. This challenge is established, and as the other grounds also have merit, the appeal will thus succeed.