Ressam & Benida (2022) FEDCFAMC1A 203

The matter of Ressam & Benida [2022] FEDCFAMC1A 203 is a parenting appeal. 

The father’s appeal was against Orders granting the mother sole parental responsibility for a child and a no contact Order with the father. 

The focus of the Judgment is to comment on the poor quality of the grounds of appeal.  They are described as a “prolix narrative comprising eight pages”

The appeal was dismissed, and the party party costs of the Respondent were fixed. 

Austin J formed the Court of Appeal on this occasion. 

The case involved a 6-year-old child. The father had commenced proceedings straight after separation in October 2018. 

The Interim Orders were made in March 2019 with the father to spend substantial time with the child and a trial was adjourned part-heard with the parties’ consent permitting the Primary Judge to vary the former Interim Orders to “adjust the amount of substantial time spent by the child with the father”.

In October 2021, a year later, after another three days of hearing, the Judgment was reserved and the Orders of March 2019 which granted the father substantial time were stayed. 

It may be that the Trial Judge intended, but inadvertently failed, to suspend all prior Interim Orders pending Judgment.  That was not, however, achieved and in July 2022, a Judgment was delivered. 

The father’s trial position was inconsistent with the concessions he’d made back in 2019 where the child was to live with the mother and spend substantial time with him. 

The mother’s case and the ICL’s case was a no time case.  

The father’s case appeared to display the same limited insight that was the basis for the mother and the ICL’s position. 

The critical point was this:

“It was not in contest that the child, despite his tender age, engaged in misbehaviour which was horrifying.”

 This “horrifying behaviour” tended to occur upon the child returning from visits to the father.  The mother’s evidence in this regard was accepted.  The physical behaviour engaged in by the child was as follows:

  • Physical assault
  • Punching her in the head and stomach
  • Spitting in her face
  • Trying to strangle her
  • Pulling her hair
  • Pushing her head against a wall
  • Brandishing a knife and threatening to cut her throat

It was accepted that the father had failed to comply with Interim Orders requiring the child to be assessed and to engage in family therapy which were designed to mollify the child’s misbehaviour. 

Importantly, a single expert under cross-examination recommended the child not spend any time with the father “so as to guard against the risk of harm he posed”.  The expert opinion was accepted by the Primary Judge and endorsed by the mother and the ICL. 

The father unsuccessfully brought an application to adduce further evidence. 

The appeal grounds were “incompetent”

The Court said quite generously:

“Rather than peremptorily dismissing the appeal for an absence of any competent ground, an attempt will be made to address the general thrust of the father’s complaints within the Notice of Appeal and the Summary of Argument in the guise of legal, factual or discretionary error.”

The Court made this point:

“The provisions of s 36(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) do not give the father open slather to challenge earlier interim parenting orders from which an appeal could have been brought.”

Importantly, at paragraph 35 the Court said:

“The father had nearly three weeks’ notice that the orders might be made, but did not submit against them, either orally or in writing. The primary judge made it clear on 14 September 2021 that her Honour was inclined, but had not resolved, to make the interim orders. The father failed to file any written submissions to address that issue, despite an invitation to do so. The orders were then not made until 8 October 2021, at which time the father’s counsel accepted it was open to make them and acquiesced to that course.”

The Appeal Court determined there was then no denial of procedural fairness to the father. 

The next ground of the appeal was an allegation that the Primary Judge had lost objectivity. 

The Trial Judge had summarised the essence of the father’s case.  

The Trial Judge expressly preferred the mother’s evidence. 

The Primary Judge “observed how a party’s forbearance from cross-examining a witness reasonably allows an inference to be drawn that the party does not challenge the reliability of the evidence. That was not a “finding” so described, but rather the recognition of orthodox principle”. 

The Court made this comment:

“Even if it is the father’s honest perception, it is not objectively vindicated.”

That sentence was worth reading the case for. 

The father, in another ground of appeal, complained that when the Judge relisted the matter and posed the possibility of re-opening the evidence, the Judge ultimately decided not to.  

The Court assisted us by saying:

“The primary consideration is whether it would cause embarrassment or prejudice to the parties (Smith v NSW Bar Association (No 2) [1992] HCA 36. The father did not submit to the primary judge he would be embarrassed or prejudiced if the evidence was not re-opened.”

Another appeal ground was a complaint about the Primary Judge’s evaluation of evidence given by two witnesses. 

In regard to this ground, the Court reminds us that “evidence does not necessarily carry significant probative weight just because it is relevant”.

When it came to considering Ground 3, the Court says:

“This ground contains three miscellaneous grievances but, in truth, none of them are competent grounds of appeal.”

There was complaint that the child’s behavioural report, a behavioural assessment report, had not been tendered in evidence. The Court said:

“The intentional decision to abstain from tendering the report in evidence at the trial precludes its receipt as evidence in the appeal.”

The next ground of Appeal was dealt with in this way:

“It is impossible to reconcile such expert opinion evidence with the complaint made by the father under the rubric of this ground.”

The next ground is described as “a loose collection of complaints” and eventually, the entire appeal was dismissed for lack of merit.

There are some very useful basic reminders in the management of this appeal as to the limits of an appeal and the requirement to approach an appeal with detailed preparation.