In formulating orders that reflect the child’s best interests, trial judges have a broad discretion concerning the weight they attribute to the parties’ evidence. An argument to the effect that an appellate court would have assessed the weight of the evidence differently may not justify allowing an appeal. The situation may be different, however, when the difference in weight relates to inconsistencies in the trial judge’s factual findings. This was the case in the Full Court decision of Bangi & Belov  FamCAFC 5.
Bangi was an appeal from a decision of the Family Court initiated by the appellant father in relation to his eleven year old son, C. The father appealed against orders providing that C spend substantial and significant time with him and resume living with the mother. At trial, the father applied for orders that the child live with him on the basis that a failure to do so would expose C to an unacceptable risk of harm. The harm related to the mother’s violent behaviours that would typically arise whenever she had consumed alcohol. In response to the father’s application, the mother submitted that C would be exposed to an unacceptable risk of harm whilst in the father’s care. This submission was marshalled in support of orders that the child live with the mother and spend no time with the father. Or at least that was the mother’s case until she revised it during the trial. Her revised case was that the father should spend time with C on alternating Sundays or, in the alternative, each Sunday.
After the parties had separated in 2011, the father had been estranged from C for a period of two years. The trial judge found that the estrangement was a deliberate scheme on the part of the mother. Proceedings were eventually commenced in the Federal Magistrates’ Court for the purpose of re-establishing the relationship between C and the father. As a result of these proceedings, the mother was ordered to attend upon the office of Dr V, a psychologist, for therapy. The mother failed to comply with the court’s orders.
The father’s appeal was fundamentally predicated upon three distinct grounds. Those grounds consist in the following:
The Independent Children’s Lawyer submitted that the first ground of the father’s appeal should be rejected. It was argued that the father’s challenges under the first ground related to the weight to be attached to the evidence underpinning the trial judge’s findings. An appeal cannot succeed if the challenge in question amounts to a claim that the Full Court should attach different weight to the evidence before the trial judge.
The Independent Children’s Lawyer’s submissions were rejected by the Full Court. The first ground was not a challenge amounting to a mere claim that the Full Court should weigh the evidence put before the trial judge differently. Instead, the father had partly based his appeal on a claim that the trial judge either made inconsistent findings or made findings that were not supported by the evidence. Clearly, a claim of this kind is different to the Independent Children’s Lawyer’s characterisation of the father’s argument.
Furthermore, the Full Court accepted the first ground of the father’s appeal. The trial judge found that the mother would not undermine the child’s relationship to the father in the future. This conclusion was not open to the trial judge in view of the evidence and her previous findings. The trial judge had found that the mother had taken extraordinary measures to ensure that the father would spend little to no time with the child.
First, the mother had sought to restrict the father’s access to the child by withholding him from a session with the family consultant. This particular session was meant to assess the child’s relationship with the father, and would therefore require the report writer to observe various father-child interactions. In explaining why the she refused to allow the child to attend the session, the mother failed to provide any compelling reasons.
Second, the mother had made numerous allegations of family violence against the father. These allegations resulted in charges being laid against the father and subjecting him to State family violence orders. In each instance of the mother alleging family violence, the allegations were ultimately dismissed. The trial judge had the benefit of examining the mother’s allegations of family violence and child sexual abuse levelled at the father during the trial. These allegations were ultimate rejected. However, the allegations and lengthy court proceedings involved in clearing the father’s name resulted in him being estranged from the child for a period of two years.
Third, the trial judge had found that the mother was seriously lacking in credibility on account of the numerous, unfounded allegations made against the father. Accordingly, the Full Court held that the trial judge’s finding that the mother would facilitate the father’s relationship with the child could not be reconciled with her findings about the mother’s past conduct and lack of credibility. For these reasons, the court accepted the father’s submission that the trial judge had erred in making either inconsistent findings, or findings unsupported by evidence.
The Full Court had also accepted the second ground of the father’s appeal. The trial judge had accorded undue weight to the family consultant’s recommendations since the family consultant had not reviewed evidence relating to the mother’s conduct. The evidence in question related to the unchallenged findings of a witness, Mr JJ. Mr JJ gave evidence to the effect that:
Given that the family consultant was unaware of the evidence of risk that had emerged from Mr JJ, the recommendations set out in the family report should not have received significant weight. In spite of this, the trial judge made the following findings:
“The Family Consultant’s evidence, to which I attach significant weight having regard to his expertise and consistency with Dr [V’s] evidence, favours final orders along similar lines to the current interim orders, that is, [the child] living with his mother and spending substantial and significant time with his father.”
For these reasons, the Full Court accepted the father’s submission that the trial judge had accorded undue weight to the recommendations set out in the family report. Likewise, the family consultant’s claim that removing the child from his primary attachment figure – i.e., the mother – would cause trauma was not weighed against the need to protect the child from the risks associated current environment.
In view of its findings, the Full Court allowed the father’s appeal and remitted the case for an additional hearing.
Bangi highlights the importance of distinguishing appeals that are based upon issues concerning the weight attached to evidence and seemingly inconsistent or unfounded factual findings of a trial judge. While logical inconsistencies and issues concerning unsupported findings will naturally involve issues pertaining to the weight attached to the evidence, they are by no means limited to that. Only coherent, evidence-based decisions can fulfil the court’s mandate to make parenting orders in accordance with the child’s best interests.