Friseal & Friseal [2025] FedCFamC1A 102 (4 June 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Friseal & Friseal has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an appeal against final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 January 2025. The appellant is the mother. The father is the respondent to the appeal. He did not file a Summary of Argument as directed. The interests of the children were represented at the trial by an Independent Children's Lawyer ("ICL"). While the orders sought by the ICL at trial mirrored those of the appellant, the ICL was not funded to participate in the appeal.
2. This case has an unfortunate history. The primary judge twice requested that the state child welfare authority intervene, pursuant to s 91B of the Family Law Act 1975 (Cth) ("the Act"). They declined and instead brought proceedings in the state court. After the trial before the primary judge had commenced they reversed that decision and various employees of the state child welfare authority gave evidence and were cross-examined. The state child welfare authority formally intervened in the proceedings before the primary judge and is a party to this appeal.
3. On the first day of the hearing the principal practice manager at the state child welfare authority gave oral evidence as follows (Transcript 11 June 2024, p. 12 lines 4-8):

This is a matter where harm has already occurred at many, many levels. One of the ...fears that family violence services, police and others, including Child Safety, hold is that if there are any interventions, then Mr [Friseal] may well seriously harm himself, the children or Ms [Friseal] or even kill them.

1. It is uncontroversial that this evidence had not previously been before the Court. Ultimately, the single expert gave evidence to the effect that, in his view, the father was at risk of self-harm but that the research which would allow him to predict whether the father poses a high risk of rare behaviour (homicide, inclusive of filicide) was insufficient. He was not able to confirm that, in his professional opinion, the father posed the serious risk of potential homicide identified by the state child welfare authority. It may be that this debate about the risk of lethal violence obscured a proper consideration of the evidence about the less serious but still significant risk issues which were supported by the evidence.
2. It being an agreed fact that the father entered guilty pleas in respect of charges of common assault and breach of an apprehended domestic violence order involving the appellant; this appeal turns on whether, prior to the incidents with which the father was charged, he engaged in a course of conduct which meets the definition of family violence in the Act (s 4AB). The primary judge found that he had not. The appellant and the intervener submit that finding, and the manner in which it was made, constitute error.
3. The final orders relate to the parties' three children:

(1) X born 2008;

(2) Y born 2009 ("the older two children"); and

(3) Z born 2015 ("the youngest child").

1. The chief contest at trial was whether the older two children would live with the father or mother and not the primary residence of the youngest child, who it was accepted would live with the mother. Accordingly, the focus of the appeal is on whether the orders which provided that the youngest child spend time with the father are infected by error.
2. The appeal squarely raises issues about the manner in which the primary judge applied the statutory definition of family violence to conclusions about the children's safety (in particular that of the youngest child) and whether the fact finding was adequate in the context of the manner in which the parties had framed the issues for trial.
3. In mid-2023 the father entered guilty pleas in respect of the following:

(a) Common assault ("grabbing [the mother] by the hair and pulling and pushing her outside" in mid-2022);

(b) Common assault ("backhanding [the mother] twice" in late 2022);

(c) Common assault ("punching [the mother] twice to the arms, and throwing the contents of a drink on her" in late 2022); and

(d) Breaches of a family violence order.

1. In respect of a number of further charges of common assault the police did not tender evidence and the charges were dismissed. The father was fined and no conviction was recorded in respect of the matters where guilty pleas were entered.
2. The mother, ICL and intervenor all framed their case before the primary judge as being one in which future risk of harm to the children was premised on finding that:

(a) The father had been physically violent to the mother;

(b) The father had behaved in a manner which was coercive and controlling of the mother involving a pattern of violent conduct and myriad other behaviours over an extended period;

(c) The father's conduct in failing to facilitate the older children's relationship with the mother was itself coercive and controlling; and

(d) A pattern of coercion and control by the father poses a future risk of physical and psychological harm to the parties' children.

1. The primary judge had evidence from a single expert psychiatrist and a court child expert. The court child expert gave evidence that because the father had not developed insight, because he largely had not reflected on his own behaviour and its impact on the children, consequently the expert held concerns about the children's exposure to ongoing coercion and control dynamics which may be directed towards them by the father. The single expert psychiatrist said that the father's use of physical violence and lack of candour was indicative of a willingness to use force to get what he wants with a risk of him doing so in the future in respect of the mother or the children.
2. At the time of trial the youngest child was living with the mother and spending no time with the father. The older two children were living with the father and had spent negligible time with the mother (notwithstanding an order). The effect was that there was also minimal time occurring between the siblings. All parents and children were living in the same state. The mother proposed that she be permitted to change the children's place of residence to another state where she had the support of family.
3. The primary judge said at [67]:

As the father does not oppose the youngest child living with the mother, there is no need to focus on findings about what is in her best interests...

1. The primary judge made the (uncontroversial) order that the youngest child live with the mother but also made an order that she spend time with the father on a supervised basis for six months, after which time her time with the father would be unsupervised on alternate Saturdays and for blocks of five days in the short school holidays and seven days in the long school holidays.
2. Somewhat inconsistently with the above orders, the primary judge also made orders which provided only for unsupervised block holiday time between the youngest child and the father under a heading "Spend time arrangements for the children if the mother and [Z] live in Western Australia".

1. Late in the day, prior to the hearing of the appeal, the mother, the father and the intervenor filed joint submissions and a proposed Minute of Order seeking that the appeal be allowed, various of the primary judge's orders be discharged and the matter remitted for re-hearing before a judge other than the primary judge.
2. Notwithstanding the parties' agreement that the appeal ought be allowed, the Court must be satisfied there has been error before allowing the appeal (Bhatnagar & Riju [2018] FamCAFC 144 at [3]-[7]).
3. The joint submissions filed on behalf of the mother, father and intervenor argue error has been established in the terms of Ground 7 of the appellant's Amended Notice of Appeal which provides:

The reasons of the primary Judge are inadequate in that:

(a) It is not possible to discern the path of reasoning as to the making of the parenting orders;

(b) It is not possible to discern the path of reasoning to establish the finding that the Respondent is not a risk of further family violence;

(c) It is not possible to discern with clarity why supervised time for the Father with the child, [Z], is in her best interest;

(d) It is not possible to discern any adequate reason why the Father's time with the child, [Z], should progress to unsupervised time or the basis of any reasoning around six months being an appropriate time or that it is in the child's best interests.

(e) It is not possible to ascertain why the primary judge rejected the position the father was a perpetrator of longstanding family violence, including through a concerted pattern of coercion and control.

1. I agree that there has been error and accept the appeal should be allowed in predominant reliance on the matters set out in Ground 3 as set out below:

The Trial Judge whilst acknowledging the centrality of family and domestic violence erred in assessing whether the Father had engaged in family violence including behaviour that coerces or controls a family member by failing to:

(a) Properly identify the behaviour about which complaint is made;

(b) Identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;

(c) Identify the impact of the behaviour on the alleged victim;

(d) Make all relevant factual findings; and

(e) Explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or a pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.

1. I am conscious that, ideally, intermediate appellate courts should deal with all grounds of appeal: Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12]. However, in this case I have determined that there is some significant overlap such that it is appropriate that I dispose of the appeal by considering Ground 3. I am confident that the principles discussed at [7]-[8] of Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 approved by this Court in Cantrell v North [2020] FamCAFC 175; (2020) FLC 93-976 at [128]- [130] are applicable.
2. In the reasons for judgment the primary judge set out the allegations of family violence which the mother had detailed in her evidence (at [39]). They were many and varied and were said to have taken place between 2006 and 2023. It is useful to set them out in full:

(a) In 2006, the father punched the top of a washing machine and cracked it;

(b) In or around 2007, the father smashed a wooden chair to pieces and stabbed the kitchen bench with a knife, which cracked it;

(c) In 2008, the father kicked her legs out from underneath her on three separate occasions and on one of these occasions, the bruising was such that she could not walk;

(d) In 2009, the father was verbally abusive and denigrated her by telling her she "has no class" and is "a bogan";

(e) In early 2014, the father told her to address him as "Mr [Friseal]" and he addressed her as "bitch" and other derogatory names;

(f) Between 2014 and 2022 the father destroyed her personal possessions, including teacups, clothes, toiletries, framed photographs and reading glasses, by burning, throwing or cutting them;

(g) In or around 2017, the father began pressuring her to initiate contact with other men;

(h) The father increased his assaults of her in 2019, including throwing her out of the house on numerous occasions, either by use of physical force, pulling her hair, verbally abusing her and insisting she leave, or throwing her belongings out the door;

(i) The father's verbal abuse of her escalated between 2019 and 2022, and involved standing over or cornering her, shouting insults or yelling in the car nonstop for an hour;

(j) The father frequently slapped her across the head between 2020 and 2022;

(k) In early 2021, the father threw her phone away and destroyed the replacement phone she bought such that she was unable to use it;

(l) The father insisted she eat regardless of whether she was hungry with the aim of making her put on weight and made her milkshakes that he told her he had crushed antidepressants into;

(m) She locked herself in the bathroom and the father hit the door with an axe, yelling at her to open it and then slapping her after she did so;

(n) The father made her stay in a hotel alone for a week to do "self-improvement";

(o) During 2021 and 2022, the father punched her if she did something that upset him and would specifically punch her in the same spot;

(p) The father threatened to call the RSPCA about the animals or call child safety about her parenting;

(q) In February 2022 the father told her she was making him suicidal and that he felt like killing himself, and said this in front of the children. Further, between January and March 2022 he grabbed her by the hair and threw her to the ground, and repeatedly punched her thighs; and

(r) In 2023 the father manipulated the events relating to the family [pet's death], effectively causing coercion or control of the mother and the children.

1. The primary judge recorded that "[t]he father admitted some of the allegations but denied others, or in effect stated that the mother had embellished things said or done by him to portray them in a threatening or violent manner" at [40].
2. In Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230 ("Pickford") their Honours Aldridge & Carew JJ (with whom McClelland DCJ at [36]) agreed) said at [48]:

When determining an allegation that a person has engaged in behaviour that coerces or controls a family member, a trial judge will undertake a forensic examination of all relevant evidence to:

(a) identify the behaviour about which complaint is made;

(b) identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;

(c) identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient);

(d) make all relevant factual findings; and

(e) explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.

1. In making reference to these guidelines I also acknowledge and endorse that a trial judge may not be obliged to resolve all disputed allegations of historical violence between parties, where the resolution of such disputes could not bear on the ultimate disposition: Pickford per Austin & Williams JJ at [80]. However, in this matter the resolution of disputed allegations was central to the conclusion about whether the resulting orders would promote the safety (including the safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of both Z and the mother.
2. In that regard I note that the primary judge may have been misdirected by a submission from the ICL to the effect that it was not "possible or necessary to make findings about each of the historical allegations made by the mother" (at [49]). I agree that it will not always be possible for a trial judge to make findings and a trial judge is permitted to reach that conclusion. However, when the allegations of violence relate to objectively serious incidents over an extended period and resolution of the dispute is central to the case advanced by a party, the ICL and the intervenor, the determination of the dispute becomes an essential element of disposition of the competing applications.
3. In the reasons for judgment the primary judge lists the mother's allegations and then says (at [41]): "[i]n relation to the mother's many allegations of family violence perpetrated by the father prior to 2022, I am not persuaded of then [sic] on the balance of probabilities...". I accept that the primary judge continued the reasons by setting out the reasons for rejecting the mother's evidence. However, the approach taken by the primary judge was to wholesale reject all allegations which were not the subject of an admission. This approach leaves the reader of the reasons for judgment unclear as to whether the primary judge considered the specific individual incidents about which the mother gave evidence and rejected them. I accept that the primary judge was not required to mention all evidence and all concessions but having listed the mother's allegations, the circumstances of this case made it necessary for the primary judge to have regard to the evidence which squarely supported those contentions.
4. The principles outlined by the High Court in Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43] have application:

A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.

1. In respect of some of the incidents which the mother alleged and which the primary judge detailed, the evidence permitted a finding. The following are examples:

(a) The father told the single expert that in July/August 2022 he hit the mother on the leg and called her an "idiot".

(b) On the occasion in September 2022 the father accepted he had thrown his coffee mug at the side of the house and it had smashed. The father's evidence also confirmed he had on this occasion said words to the effect that he "was so mad I could kill you." There was corroborative evidence of bruising to the mother's right forehead, right side of her neck, left side of her neck, left upper arm and right upper arm from medical professionals. Each of these pieces of evidence creates a more fulsome and objectively concerning picture than is conveyed by the father's plea of guilty to common assault "punching her twice and throwing contents of a drink on her".

(c) The mother gave evidence that the father had referred to her as a "bitch" and required that she address him as "Mr [Friseal]". The father agreed in cross-examination that he had referred to the mother as "my bitch" but contended that she liked it. Similarly, the primary judge did not consider the father's concession that he had required his wife to refer to him as "Mr [Friseal]".

(d) The mother gave evidence that the father had made her stay in a motel for a week to do "self improvement", a matter the primary judge records at [39]. The father accepted in cross-examination this had occurred in a context where he accepted he had asserted to the mother that he was better educated than her, more self-aware than her and that she should stay in a motel to do some self-improvement which he described as "cleaning out the basement."

(e) The mother alleged the father had pulled her by the hair. The father agreed in cross-examination he had pulled the mother into the hallway by her ponytail. He had then put his hands behind her back over her shoulder blades and walked her out the door. According to the father's plea this occurred in August 2022.

(f) The mother says that the father routinely threw her personal belongings out of the house. In cross-examination the father conceded having done so on one occasion.

(g) The mother says the father placed pressure on her to have sex with him daily. Notwithstanding the father's evidence that the couple did have sex on more days than not each week he described the mother to the single expert as "inhibited". In cross-examination the father accepted that he had said to the mother that she was neglectful of him sexually and he would say to her when she did not want to have sex words to the effect "we're married aren't we that is what married people do."

(h) The mother alleged the father had smashed a wooden kitchen chair in 2007. The father accepted in cross-examination about this incident that he had broken a chair once.

(i) The maternal grandmother gave unchallenged evidence that Y had reported to her in 2021 that his father had hit the bathroom door with a hammer or axe.

(j) Z told the state child welfare authority that she had seen her father pull her mother's hair, smash the coffee cup against the wall, had seen the bruises on her mother's arms legs and shoulders and had been told by her father that he "was doing this to protect the children" from their mother. This firsthand account by the child, entirely consistent with the mother's report on medical examination, (Exhibit "A9") required consideration.

(k) The father accepted that he had slapped the mother in the car (but only once) inconsistently with his having pled guilty to administering two "backhanders". It is not plain whether this is on the occasion on which the father agreed he had slapped the mother on the shoulder in the car.

1. The father's criminal history included multiple state intervention orders in 1998 and 1999 (one of which was identified as being personal not domestic). The father dismissed the existence of previous orders as being limited to a dispute his parents had with a neighbour. This appears inconsistent with the documents in evidence.
2. It is also problematic to dismiss serious allegations of family violence globally. It is one thing to indicate that you prefer the evidence of one witness over another in respect of a specific allegation, it is quite another to reject the mother's allegations in respect of serious assaults spanning more than a decade in apparent reliance on her demeanour.
3. The rejection of the mother's evidence by the primary judge must be seen in light of the conclusions expressed in the reasons at [32]:

The mother presented and behaved since separation with a high level of organisation and planning which demonstrated assertiveness and confidence not entirely consistent with the demeanour one would reasonably expect of a chronically coerced and controlled individual. While her presentation was somewhat at odds with what would be expected of a victim of coercion or control arising from physical and verbal abuse as alleged, I find this likely, in part, explained by the opinion of Dr [G] of improved mental health and personal development leading to improved views of herself. However, the mother's presentation and evidence overall caused me to conclude that she was diminishing her contributions to the conflict during the period the relationship was breaking down.

(Footnotes omitted)

1. The primary judge cited as authority for the conclusion in the final sentence of that paragraph a number of appellate authorities from this Court and paragraph [31] of Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 ("Fox v Percy"). I interpret [31] of Fox v Percy as inconsistent with the generalised conclusion in the final sentence of the passage from the primary judge set out above. Those observations also sit uneasily with the evidence of the single expert that:

The more dependent someone is, the less likely they are to do anything that will threaten the relationship that they're... in. So your people who are very dependent are likely to tolerate high levels of violence within a relationship, and they...won't speak of it because they have a psychological need to be in that relationship. (Transcript 13 June 2024, p. 155, lines 37-41)

1. The single expert's observations about the mother's presentation confirm the problematic nature of fact finding in reliance upon an expectation that those who have experienced family violence will behave or present in a certain way, as the Australian Institute of Judicial Administration National Domestic Violence Benchbook notes "[v]ictims and their circumstances are as diverse as in the broader population".
2. I acknowledge that the primary judge relied, in part, on an assessment of the credibility of the mother and father in reaching the conclusion that she preferred the evidence of the father and it is therefore, conscious of the dicta in Fox v Percy, that I approach the disposition of this appeal. Having regard to the matters canvassed above, and in particular the admissions, concessions and confirmation provided by the father's oral evidence I consider that the evidence did establish a pattern of conduct by the father such that the primary judge's conclusion that the father was not and would not be "in the future...a pervasive, long-standing and chronic perpetrator of family violence" was contrary to incontrovertible facts.
3. In this regard the observations of Atkin LJ in Société d'Advances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana') (1924) 20 Ll L Rep 140 at [152] would appear apposite:

... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

Here the primary judge had available, from a number of sources, evidence which was corroborative of the mother's narrative.

1. It followed, from the primary judge's finding that time with the father did not pose an unacceptable risk, that the reasons for judgment did not squarely address the safety of youngest child from exposure to either physical violence or emotional manipulation in the unsupervised care of the father as is required by consideration of the matters set out in ss 60B(a), 60CC(2)(a), 60CC(2A), and 60CG of the Act. In fact, as the parties' joint submission accepts, there was no discussion of the role and function of supervision and accordingly of the reasons why it would be initially imposed and what would be required in order for it to cease, I therefore see that there was merit in some of the matters raised by the appellant and intervenor in support of Grounds 1, 2 and 7.
2. In the above outlined circumstances I propose to permit the appeal, vacate the orders which provide for time between the father and the youngest child, and remit the matter for rehearing.

1. No party filed a costs schedule in accordance with the orders of the Court. That order directed any party intending to seek costs to file such a schedule. The proposed Minute of Order filed by the parties sought that certificates issue in favour of each party pursuant to s 9 of the Federal Proceedings (Costs) Act 1981. A certificate is only available to the appellant pursuant to that section.
2. I consider that, notwithstanding the failure to file a costs schedule, it is appropriate that a certificate issue as, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to this appeal.
3. The father, not having filed submissions and not having made a formal application for costs and not having filed a costs schedule; I do not otherwise propose to make any order as to costs.

NOTE:

These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Chief Justice Alstergren and Justices Kari and Christie.