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Appealing a family law decision

By February 1, 2019November 1st, 2021No Comments

Appealing a family law decision will only succeed if it’s established that a trial judge made errors of law, not because you’re unhappy with the outcome of your proceedings and want another chance to achieve the result you want. So, what kinds of errors are seen in family law which can result in appeals being successful? One recent appeal heard in the Family Court gives an example of some of the kinds of mistakes that judges can make–and be called out on.

The case of Henny & Penningh [court-ordered pseudonyms] is a parenting dispute involving a couple with two small kids who had moved to an unfamiliar town purely for the father’s career. After separation, the father moved a few times before settling several hours’ drive away from the mother and children. The mother now wished to move to another city where she had friends and where her new partner lived. At first instance, the father successfully opposed this and parenting orders were made reflecting that decision. However, on appeal it was found the judge made numerous errors, and the mother will now be able to have her matter re-heard before a new judge.

The dispute covered a number of issues, including family violence, assessment of risk, and relocation. On each issue, the appeal judges say the primary judge simply got it wrong. The appeal judges said that “the primary judge’s engagement with the facts was cursory”. The mother was “subjected to misleading and confusing questions, improper questions”, had documents in her matter misused in cross-examination, and had the judge mistakenly rely on an unrelated document and then “misstated what it said”.

Mistakes relating to relocation

In relocation cases, courts are concerned with the potential negative consequences for a child’s relationship with their parent if they live a significant distance away from them. In deciding relocation cases, judges have to consider the advantages and disadvantages of a proposal to relocate away from one parent. They consider the parent’s reasons for wanting to move together with any evidence that shows such a desire is based on sound reasons, and they balance it against the “left-behind” parent’s reasons why the children should not be permitted to relocate.

In this case, the appeal judges were at pains to point out that under the law, parents don’t actually have to establish compelling reasons why they want to relocate, and nor is there an onus on the ‘left behind’ parent to prove why the other parent shouldn’t be permitted to move. But, as they note, “it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.” And they ruled that the trial judge had not correctly balanced the competing proposals.

The trial judge was “clearly dissatisfied with the mother’s reasons”, saying he was “disturbed” by the fact that the mother’s new partner did not give evidence and that the mother provided “no evidence of a deep commitment to a relationship with [him]”. The trial judge went on: “Moreover, the mother gave “no evidence of how he could support her and the children in [the destination city]”.

The appeal judges found these comments “surprising and unfair”—and possibly even a little sexist. The mother didn’t expect to rely on the her new partner for financial support: “After all, she is a well-qualified professional who was then earning an income in the vicinity of $180,000 per annum and was supporting herself and the children without financial assistance from anyone.“

Similarly, the trial judge was dismissive of the mother’s employment prospects despite her evidence otherwise.

Rather than balance the competing proposals, the judge had “unfairly critiqued” the mother and ignored her “very strong case for relocation”. The judge had also ignored the “obvious” disadvantages of not permitting the relocation.

Mistakes on the issue of family violence

Family violence had been a factor in the trial, requiring assessment of whether the father posed a risk to the children. There were mistakes made on this issue, too, with the appeal judges stating “the fact finding concerning family violence is seriously flawed”.

One of the problems is that the trial judge seemingly formed his views based partly on whether or not the mother sought assistance from authorities in every instance, and whether she had provided full comprehensive initial disclosure to authorities.

“A theme developed that because the mother did not seek assistance from the Department or police for [one of her children], she was either a bad parent or her account of the relationship with the father was a lie.”

But the appeal judges say the judge misunderstood the nuances of the mother’s case in finding that she had “stepped back from and abandoned allegations of family violence”.

They say that the trial judge’s “binary view of family violence is outmoded and has no place in modern family law”. Instead, sometimes victims of family violence seek to preserve the family unit and try to protect their children without the involvement of welfare agencies. This can be particularly the case if (as with this mother) they themselves had had a difficult childhood history of contact with agencies.

The appeal judges also took the primary judge to task over comments made in regard to a road rage incident perpetrated by the father towards the mother and children. The primary judge had said:

“This was an astonishing event, made even more astonishing because these parents are high achievers and should be able to exercise executive function decision-making by thinking through the possible results of actions they may take. Such applies to both parents…”

But the appeal judges said they were shocked by these remarks.

“Applying the language used in the trial reasons, what is astonishing is that the primary judge found the mother in some way responsible, presumably equally responsible, for what happened…The primary judge should have found that the father was solely responsible for this dangerous incident of family violence and that it provided considerable support to the mother’s evidence of family violence and her concerns about his capacity to care for the children for longer periods of time than was proposed by her.”

Regarding disclosures of family violence incidents, the appeal judges noted that beyond initial claims, disclosures made by the mother at a later time were “viewed with suspicion”.  What’s more, where there was any inconsistency found, then all the evidence regarding family violence was deemed unreliable, and the trial judge did not try to establish if there was a core consistency in the mother’s disclosures.

“This approach fails to recognise how hard it is for victims of violence inflicted by a family member, who is often someone they love or on whom they rely for sustenance, to speak about what has happened. The subject matter is distressing and giving voice to what has occurred can be traumatic in itself. We cannot say strongly enough that those involved in cases such as this must bear in mind that in this setting, disclosure is a process that often requires time before a complete picture emerges.”

The case can be read in full here.

If you need assistance with a relocation or other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

You may wish to read our previous blog on building your case for parental relocation.


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