Ferreday & Layh [2019] FamCAFC 98 (13 June 2019)

Last Updated: 13 June 2019

FAMILY COURT OF AUSTRALIA

FERREDAY & LAYH

[2019] FamCAFC 98

FAMILY LAW – APPEAL – PARENTING – Whether the primary judge erred in rejecting the father’s claim of sexual abuse – Where the father has not identified any compelling inferences or evidence that warrants the appellate court to interfere with the findings of the primary judge – Where the orders proposed by the father were premised on the finding of sexual abuse for which he unsuccessfully contended – Whether various injunctions should not have been made – Where the father contends that the injunctions prevent him from monitoring the child in light of alleged sexual abuse – Where the allegations of assault and abuse were not substantiated – Challenges fail. FAMILY LAW – APPEAL – PROPERTY – Superannuation splitting order – Where the father would have preferred to receive a larger portion of the non-superannuation property and give up part of his pension entitlement by way of a splitting order – Where the father did not engage with property proceedings – Where a party cannot complain that a judge failed to consider a particular course when it was not put before the judge – Challenge fails. FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where it is just in all the circumstances that the father pay the costs of the ICL and the mother.

Family Law Act 1975 (Cth) ss 75(2), 96AA Family Law Rules 2004 (Cth) sch 3

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 358 ALR 683; [2018] FCAFC 93 Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

APPELLANT:

Mr Ferreday

RESPONDENT:

Ms Layh

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

122

of

2015

APPEAL NUMBER:

SOA

69

of

2018

DATE DELIVERED:

13 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland, Aldridge & Kent JJ

HEARING DATE:

25 March 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 August 2018

LOWER COURT MNC:

[2018] FamCA 646

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Southern Community Justice Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

ORDERS

(1) The appeal be dismissed.
(2) The Application in an Appeal filed by the respondent on 13 March 2019 be dismissed.
(3) The appellant pay the costs of the respondent fixed in the sum of $15,399.20.
(4) The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $6,654.
(5) The costs as ordered in 3 and 4 hereof are to be paid by 25 September 2019.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferreday & Layh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 69 of 2018
File Number: ADC 122 of 2015

Mr Ferreday

Appellant

And

Ms Layh

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Ferreday (“the father”) appeals against parenting and property settlement orders made on 24 August 2018 by a judge of the Family Court of Australia in proceedings against Ms Layh (“the mother”). The appeal is opposed by the mother and the Independent Children’s Lawyer (“the ICL”).
2. The parties met in 2005 in Country D. The mother moved to Australia in December 2007 and commenced living with the father. They were married in 2008 and separated in June 2014.
3. The parties’ child, X (“the child”) was born in 2008. Up until the time of the orders, she was spending equal time with both parties, alternating between spending three days or four days a week with each parent. However, that time was not spent as a block so 10 changeovers were required each fortnight.
4. The primary judge ordered that the mother have sole parental responsibility for the child who was to live with her. She was to spend time with the father from 10.00 am on Sunday until the commencement of school on Wednesday. Thus, the child was to spend three nights a week with the father, or six nights a fortnight. This was a reduction of only one night per fortnight. Importantly though, the time was to be spent as a block so that only two changeovers a week were required, one of which was at school and did not involve any interaction between the parties.
5. The primary judge restrained each party from participating in school activities or attending the school on the days that the child was in the care of the other party, save for some defined events.
6. The father was restrained from arranging the attendance of the child at a variety of mental health professionals or a general practitioner without the prior written consent of the mother.
7. The father appeals from all of these orders.
8. One ground of appeal was also directed to the property orders which provided for the mother to transfer her interest in a property at C Town to the father in return for a payment of $273,213.
9. The father filed an Application in an Appeal on 12 March 2019 seeking to adduce further evidence in the appeal. It was not pressed and was dismissed.
10. The mother filed an Application in an Appeal on 13 March 2019 seeking summary dismissal of the appeal. We determined that it would be heard with the appeal. As we will dismiss the appeal on its merits, the Application, which otherwise would have carried significant force, will also be dismissed.

THE APPEAL

11. The Amended Notice of Appeal contains 52 discursive grounds which extend over 20 typed pages. Most do not purport to identify error. Many are histrionic and contain frankly abusive and derogatory statements about the mother.
12. The father’s Summary of Argument was simply impossible to follow, and did not assist.
13. At the hearing, the father sought to rely on an affidavit which was, in effect, a further set of submissions. Without objection, we gave him leave to rely on this document in place of his Summary of Argument.
14. Again, it is a difficult document to follow. However, from the written and oral submissions and with the assistance of the father, we are able to determine that the father’s essential complaints were:
    • the primary judge wrongly failed to make a finding that the child had been sexually abused by her older step-brother;
    • the injunctions should not have been made; and
    • a superannuation splitting order should have been made instead of a 10 per cent adjustment in favour of the mother being made to the
      non-superannuation assets pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
15. We shall deal with the appeal under these headings.

Did the primary judge err in rejecting the father’s claims of sexual abuse?

16. This was the principal point of the appeal. The father contended that the child had been sexually abused by Mr Y who was the mother’s adult male child from an earlier relationship. He further alleged that the mother knowingly ignored this abuse or acquiesced in it.
17. Mr Y was born in 1992. He moved to Australia in January 2010 and lived with the parties until he moved to live with his uncle in C Town in March 2014. He moved to Sydney in November 2014 (although the primary judge described this as occurring in March 2014).
18. The father, who is a professional, submitted that the orders that he sought were appropriate because they permitted him to monitor the child for signs of sexual abuse and to deal appropriately with its ramifications. They were described by the primary judge in the following manner:
    12. By Further Amended Initiating Application filed 7 May 2018 the [father] seeks orders with respect to the child. He does not seek or particularise any orders with respect to property settlement. On the final day of hearing he handed up an amended copy of the parenting orders he now seeks. Those orders can be broadly summarised as:-
        1. Sole parental responsibility for the child in particular with “regard for personal and sexual PROTECTION and safety as well as life and developmental decisions relating to her personal development and dual Australian and Country B identity”, and in the event of his death, leave of the court to transfer sole parental responsibility for the “protection functions” to his brother.
        2. That the [father] may monitor, contact, collect or remove the child from situations with “indications of potential Abuse of [the child] with each such action subject to Judicial Review.”
        100. That the [father] may provide “caring support” to the child such as arranging therapy or other “direct actions to assist Mental Health CHILD PROTECTION”.
        4. That the child does not spend more than three consecutive days away from the [father] “until [the child’s] capability beyond this time is confirmed medically and psychologically to [the father]” and that the existing pattern of time spending continue.
        5. That the [mother] may not remove the child from the State of South Australia without “a monitored schedule of conditions signed off by [the father].”
        6. That the [mother] may not take the child overseas except “at the arrangement and security of [the father] and available to [the mother] at reasobale [sic] notification to travel conjointly with [the child] and [the father] with him providing airline tickets for this.”
        7. The implementation of a “protective protocol” prohibiting the child from being alone with [Mr Y] and incorporating a regime of “personal respect” and appreciation of the child. In particular:-
           1. All SEXUAL INTERFERENCE with [the child’s] development is to cease.
           2. PERSONAL RESPECT: Over intimate, over-controlling, grooming and invasive imposition to dominate [the child] and obtain inappropriate compliance is to cease.
        8. A declaration that the child has been subjected to sexual abuse by both the [mother] and [Mr Y].
19. Of course, the need for the orders proposed by the father is contingent on a finding of sexual abuse. The primary judge did not accept that the evidence established that such abuse had taken place and accordingly it is necessary to deal first with the challenge to that finding.
20. The father alleged that on three separate occasions, Mr Y sexually assaulted the child – twice on 29 July 2012 and once in late 2013.
21. In support of this allegation, he relied upon his own evidence, that of his mother, and the evidence of a neighbour.
22. Two incidents were said to have occurred on 29 July 2012. The first was that it was asserted that Mr Y poked the child’s genitals. The second alleged assault was the child being held up in the air by Mr Y with his hand on her genitals.
23. The paternal grandmother was the primary witness to both incidents. Her evidence in chief came from two sources – a statutory declaration and an affidavit.
24. The primary judge recorded that evidence as follows:
    88. The following extract from the Statutory Declaration of 20 August 2014 appears to be the gravamen of the [father’s] concerns:-
        7. I know how it can start innocently and gradually increases.
        8. On July 29^th 2012 from my Crow’s record [Mr Y] and ([the child]) were playing with matchbox cars on the carpet and [the child] had her legs apart to catch the cars as they sent them forth to each other.
        9. As I came from the kitchen area I saw [Mr Y] poke her [the child] in the crutch (sic) with his fingers as part of the game. This was a big warning to me, so I told [the father] and he talked to [Mr Y]. [The child’s] face showed a confused look.

Then as I turned back I was shocked to see [Mr Y] holding [the child] in the crutch (sic) up in the air with his hand in her crutch (sic) and she had the same puzzled look on her face. I also told [the father] about this and he spoke to [Mr Y] about it.

89. In her Affidavit filed 1 September 2017 she describes the incident in the following manner:-
    3. [The child] was 3 years old in July 2012. [The father] and his children were at my house to watch the Crows on TV. While waiting for the match [the father] was in the bathroom and I returned to the lounge area unexpectedly after half an hour in the kitchen. I saw [Mr Y] poking his finger to push on [the child’s] genitals that were covered only by a thin layer of her panties. [The child] was sitting on the floor legs apart in front of him. He was pretending that this was some sort of game and yet he was clearly stepping over the ‘mark.’ This was visible to me and also shown by the shocked and confused expression I saw clearly on [the child’s] face, facing towards me.
90. And at [5]:-

Shortly after this and on the same day I saw [Mr Y] holding [the child] above his head with his hands on her genitals enacting an inappropriate genital invasion during a pretence of an aeroplane game. ...

25. It is obvious that there are significant differences between the statutory declaration and the affidavit. In the first, a game is clearly being played but in the affidavit the alleged assault is pretended to be a game. In one, the toy cars are important but they do not appear in the second. We accept that these are differences of importance.
26. On neither version did the paternal grandmother seek to intervene, and immediately left the room although, according to the statutory declaration, she immediately told the father about each incident.
27. His Honour found that the evidence of the paternal grandmother was internally inconsistent, and inconsistent with the father’s evidence. Her affidavit had been prepared by the father who, in his own words, “coloured it” (Transcript 29 June 2018, p.539 line 26). The primary judge found that she had spoken at great length with the father about the litigation and her evidence. Overall, her evidence was found to be “strongly supportive” of the father’s position and had been “coloured by her obvious acceptance” of the father’s concerns (at [99]).
28. The primary judge recorded the father’s evidence in the following terms:
    60. The principal evidence the [father] presented is that of the paternal grandmother. Whilst I ultimately considered her evidence to be inherently unreliable, she asserted that the [father] was not present at the time of her observations of the alleged sexual assault. The [father] agreed that his initial summary in [52] was incorrect and he did not observe the alleged sexual assault.
    61. It was further alleged that [Mr Y] was playing an aeroplane game with the child which involved him lifting her above his head. The [father] alleges that [Mr Y] used the opportunity to place his hands near or on the child’s genitals.
29. Paragraph 52 of the fathers affidavit filed 16 January 2015 said:

There was an incident, witnessed by my mother and I in mid 2012 in which [Mr Y] was observed poking [the child] in the genitals through her panties with his finger. When I redressed him for doing this at the time, he did not deny the behaviour. He instead angrily declared his right to do these things as a [Nationality B]. I pointed out that such behaviour was not appropriate nor legal in Australia.

30. The father disputed that he made the concession recorded by the primary judge. However, it is clear beyond argument that the concession was made as appears from the following passage of his cross-examination:

[COUNSEL FOR THE ICL]: And Mr [Ferreday], the incident on which you place so much importance, which was the incident whereby your mother says at paragraph 3, she saw [Mr Y] poking [the child] in the genitals, you were not there at all. You didn’t see that happen at all?

[FATHER]: ---No.

(Transcript 29 June 2018, p. 540 lines 22–25)

31. The father did not refer to the second alleged incident of 29 July 2012 in any of his affidavits relied upon at the hearing. It was apparently described in an earlier affidavit which was not relied upon by him as this passage of cross-examination demonstrates:

[COUNSEL FOR THE ICL]: No. And the – what his Honour reluctantly described as the “aeroplane incident”, that occurred in the family room. Correct?

[FATHER]: Yes.

[COUNSEL FOR THE ICL]: And you were not in the family room when that aeroplane incident took place, were you?

[FATHER]: Of course I was.

[COUNSEL FOR THE ICL]: Where were you?

[FATHER]: I was standing by the door, and that was a – yes. I was there. Let’s just keep going.

[COUNSEL FOR THE ICL]: Because your mother is the one that tells us about that incident, not you. Correct?

[FATHER]: Look, I can’t remember what mum said, but didn’t she say that I rescued – she surely would have – well, I rescued her from – from that incident, so she must have described it. I can’t remember what she said.

[COUNSEL FOR THE ICL]: All right. And do I understand the high water mark of your evidence to be that, as [Mr Y] was holding [the child] into the air, playing an aeroplane game, his hand was in the vicinity of her genital region. Is that it?

[FATHER]: His hand was totally disrespecting her genital region, if that’s what you want me to say.

...

[COUNSEL FOR THE ICL]: Are you sure it wasn’t in the vicinity of? The upper thigh, whilst he was playing this aeroplane game?

[FATHER]: I saw his hand on her crutch – genital area.

[COUNSEL FOR THE ICL]: Well, Mr [Ferreday], what you say at paragraph 55.3 of your first affidavit is that, you saw him lift her up by her crutch and hold her in the air. That’s what you said in your very first affidavit. No reference to hands on genitals or poking of genitals. He was just holding her up by her crutch, holding her in the air. That’s what you said. That’s what happened, isn’t it? He was holding her up by her crutch?

[FATHER]: That is what happened.

[COUNSEL FOR THE ICL]: Yes?

[FATHER]: And that does involve a hand being on the genital area, so there’s no disparity.

(Transcript 29 June 2018, p.540 line 27 to p.541 line 42)

32. The primary judge rejected this evidence. He described the father’s evidence as “difficult to understand” and that his answers, at times, were “contrived” (at [80]). He was said to be an unimpressive witness and that the evidence of the mother and Mr Y was to be preferred (at [81]).
33. This led to the following conclusion:
    165. In the present case, I am easily able to find that there is no substance to the evidence presented by the [father] in support of his contention that the child had been the victim of sexual abuse.
    166. The evidence of alleged assault on 26 July 2012 relies entirely on the purported observations of the paternal grandmother. Notwithstanding the [father’s] earlier affidavit that states he observed inappropriate interaction between the child and her brother, that evidence is in conflict with the evidence of the paternal grandmother.
    167. The paternal grandmother’s evidence was entirely unsatisfactory. It is likely that her evidence was either promoted by the [father] or at the very least significantly coloured by his presentation to her.
    168. The [father’s] evidence of the child being placed on the shoulders of her brother with the intention that it would provide some sexual gratification for him or constitute a “grooming” of the child is entirely without foundation.
    169. I do not consider that the [father] has either established on the balance of probabilities that the child was the subject of assault as alleged, or that there is any evidence that would support a finding that the child is at risk, unacceptable or otherwise, from her brother or her mother.
    170. The risk to the child arises from the [father’s] apparent inability to accept that his belief, whilst perhaps genuinely held, is entirely without foundation.
34. These findings posed an immediate difficulty for the father because appellate courts will not interfere with such findings of a primary judge unless they are contrary to incontrovertible evidence or compelling inferences or are “glaringly improbable”: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 128 [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550, 559 [43]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 358 ALR 683, 686 [3].
35. The father has not identified any such matters and this aspect of the appeal must fail.
36. It is also necessary to add that in relation to the reliability of the father’s evidence, his Honour took into account, as he was entitled to do, the answers given by the father to questions on other issues. These led to the overall finding that the father’s evidence was unimpressive.
37. The father’s main submission was essentially that his evidence and that of his mother should have been accepted and that a finding of sexual abuse should have been made. That submission merely states the father’s position and does not identify error.
38. The challenge to the primary judge’s findings as to the events of 29 July 2012 must fail.
39. The third incident is said to have occurred in 2013 when the family was in Country D for a holiday. Mr Y was carrying the child on his shoulders.
40. The father relied on his own evidence as follows (paragraph 82 of his affidavit of 20 April 2018):

...[T]he incident in [Country D] late 2013 is of extreme significance too. This was when [Mr Y] completely breached the Protocol and took [the child] off alone. Yet I was looking and monitoring constantly for [the child] to see him hundreds of metres below down the mountain carrying her the opposite direction to where our taxis waited. It was an hour and two kilometres before I caught him. I called him a ‘bone-head’ to minimize things for [the child] who was extremely pale faced and staring. As well as in breach off alone without saying anything, I said he knew exactly what his neck bone was doing to [the child’s] genitals! He then said, “She wanted it”. I saw ‘red’ at this! He was ‘grooming’ her in this! ...

(As per the original)

41. In cross-examination, the father said the child’s genitals “were banging on the back of [Mr Y’s] neck” (Transcript 28 June 2018, p.430 lines 11–13).
42. Mr Y agreed that he had placed the child on his shoulders but that was just the normal act of carrying a child, and there was no sexual connotation to that manoeuvre.
43. The primary judge preferred Mr Y’s evidence saying:
    113. [Mr Y] was an impressive witness and his denials of any sexual assault or abuse of the child were entirely credible.
    114. I prefer the evidence of this witness where it conflicts with the evidence of the [father] or the paternal grandmother.
44. As there was no other evidence on the issue it is impossible to point to any matter that identifies error with this finding. The father’s insistence that his evidence should have been preferred because it was correct does not do so.
45. Finally, it is necessary to refer to the evidence of the neighbour. She does not describe any incident but records a statement that she says that the child made to her. Her evidence was to the effect that on 16 September 2015 she was assisting the child to have a shower. As she handed a towel to the child she said “[y]ou had better dry yourself down ‘there’ because no-one else can touch you in that place”. The evidence continued that the child replied “[Mr Y] does!!” (Affidavit of Ms O filed on 6 October 2017).
46. The primary judge found that the neighbour was strongly supportive of the father’s position and that “her evidence was coloured by her obvious acceptance of the father’s concern that the child was at risk in the presence of [Mr Y]” (at [99]).
47. At [96] the primary judge recorded that in the October 2017 affidavit the neighbour said:

I provide this affidavit in order to verify the sexual and other abuses of [the child] ...

48. These findings of the primary judge were well open to him. Again, the father was unable to point to any error other than to assert that the neighbour’s evidence should have been accepted.
49. As we have recorded, the orders proposed by the father were premised on the finding of sexual abuse for which he unsuccessfully contended. Thus, the basis for many of them fell away and orders that had their justification in the need for monitoring and protection against sexual abuse were not warranted.
50. There is no merit in this aspect of the matter.

Should the injunctions have been made?

51. It is useful to commence by setting out the injunctions in full:

(8) Each party is restrained and an injunction granted restraining each of them:

(a) From participating in school activities or attending at the child’s school on those days that the child is in the other parent’s care save as to school concerts, parent/teacher interviews, graduation ceremonies or sports days;

(b) From discussing these proceedings or the contents of any documents filed in the proceedings with or in the presence or hearing of the child or permitting any other person to do so.

(9) That the [father] is restrained and an injunction is granted restraining him:-

(a) From arranging or facilitating the attendance of the child upon Dr [D] or any mental health care provider, psychologist, psychiatrist, social worker, counsellor, therapist or other similar health practitioner without the prior written consent of the [mother];

(b) From arranging or facilitating the attendance of the child upon any general medical practitioner or general medical practice without the prior written consent of the [mother].

52. In essence, the father submitted that the orders in (9) had been wrongly made because they prevented the child from receiving beneficial treatment.
53. The evidence disclosed that on two occasions the father had taken the child to a doctor for a genital examination.
54. At the time of the hearing, the child was receiving continuing therapy from a psychologist, Dr D, as arranged by the father. He did not call any evidence from the psychologist and, as his Honour observed, the Court did not know the focus of the therapy.
55. The family consultant said:
    94. It should be noted that whilst the Consultant was left with some concern about the ongoing nature of [the child’s] involvement in therapy and the message this may give [the child] about her mental health, it did appear that [the child] enjoyed her contact with her therapist and wished for it to continue. It also appeared to play a complimentary role of mediating issues between the parties. As such, the Consultant would not oppose this involvement by the parties and child remaining as recommended by the therapist, as agreed by the parties.

(Family report of Ms Z dated 16 May 2018, Annexure “C” to the affidavit of Ms HH filed on 18 May 2018)

56. This led the primary judge to observe:
    139. The family consultant expressed some concern as to the extent of the child’s ongoing therapy with [Dr D], psychologist. The [father] did not call evidence from the psychologist and accordingly the Court does not know the focus of the ongoing therapeutic sessions. If the [father’s] concern relates to his belief that the child has been the subject of sexual abuse, then the therapeutic intervention is both unnecessary and potentially harmful.
57. This in turn led to the following conclusion:
    202. The ICL considers that the [mother] should have sole parental responsibility. This is in response to the evidence of the [father] taking unilateral action in taking the child to a medical practitioner without the [mother’s] knowledge and consent and the continued attendance of the child upon Dr [D].
    203. The determination of parental responsibility is to be considered by reference to the factors in s 60CC in determining what is in the child’s best interests.
    204. The inevitable conclusion from the evidence as presented is that the [father] cannot be trusted to respect the entitlement of the [mother] to be consulted before the [father] engages the child with any health professional.
    205. The real mischief however is that the attendance by the child on health professionals is promoted not as a reaction to the child’s adverse presentation but rather, because the [father] remains fixated on his belief that the child has been sexually abused and the [mother] has either promoted the abuse or has taken no steps to stop it.
    206. In circumstances where a child is being presented for unnecessary medical or other examination and assessment and there remains a risk that unless appropriate orders are put in place the conduct will continue, it seems to me that the [mother’s] application as supported by the ICL has merit.
    207. I propose to order that the [mother] have sole parental responsibility for the child.
    208. It is a necessary consequence of an order for sole parental responsibility in favour of the [mother] that the [father] should be restrained from taking the child to any psychologist or other health professional unless agreed by the parties. I propose to make orders accordingly.
58. The ban on the father taking the child to health professionals was based on a finding that the main reason for the various attendances was the father’s fixed, but mistaken, view that the child has been sexually abused, and the need he perceived for the child to be frequently monitored and supported. We have already rejected the father’s submissions that the primary judge erred in reaching that finding.
59. However, the injunctions were also based on the father’s failure to consult with and obtain the mother’s consent to such treatment because she too was a person with parental responsibility for the child. Thus, any decision to engage such professionals was not one for the father alone.
60. The father’s submissions did not identify any error in this reasoning.
61. In his affidavit, which was treated as his Summary of Argument, the father said:

Further and similar obscuration [of potential forensic data] applies to banning of [the child’s] extremely successful Therapy. This when the Therapy is EXPLICITLY to HELP [the child].

(As per the original)

62. There was no evidence as to why therapy was needed. If, as could be inferred, the father considered it to be necessary because of the sexual abuse, that basis fell away when those allegations were dismissed.
63. Finally, as we have said, there was no ban on therapy, just a ban on the father taking the child to a health professional. The mother, as the person with sole parental responsibility, was free to do so if she considered it desirable.
64. We turn then to the injunction as to attendance at the child’s school.
65. The father’s primary objection to the injunction was that it prevented him from participating in the “Hug A Day Program” at the school. That objection does not identify error unless it can be established that that effect of the injunction was a relevant matter which was not taken into account by the primary judge.
66. His Honour referred to this program as follows:
    75. The [father] spoke of a program that he had developed which had apparently been adopted to some extent by various primary schools called “Hug A Day Program”. The parameters of the program were uncertain, but a reasonable summary is the [father’s] belief that children gain a benefit from being hugged by a safe adult. The [father] acknowledged that the program was effective in healing children who had been the victims of sexual abuse.
    76. He argued that if he was not able to attend the child’s school on periods when the child was not with him, the “Hug A Day Program” would not be as effective.
67. This led to the following conclusions:
    212. I reject absolutely that the [father] should be permitted to attend the child’s school in order to promote and/or facilitate the “Hug A Day Program”. If the program is perceived by the child’s school to have merit, then the [father] is able to deal with them when the child is notionally with him.
    213. I do not consider that I could attach significant weight to the “Hug A Day Program” or any other behavioural program sought to be promoted by the [father].
68. It is important to recognise that the injunction was already in place at the time of the hearing. The father acknowledged that he had attended the school contrary to the order. In addition to his attendance for the Hug A Day Program, he considered it necessary closely to monitor the child because without that “the damage occasioned to the child by the sexual assault perpetrated by [Mr Y], the mother’s failure to protect the child and the environment of aggression and bullying ... without his input he feared the child may turn against her mother” (at [77]).
69. As the allegations of assault and abuse were not substantiated, any need for monitoring falls away and the father’s submission that the injunctions prevented such monitoring cannot succeed.
70. As the primary judge found at [210] the mother wished to attend the child’s school without being confronted by the father.
71. The submissions of the father do not identify error. None is readily apparent to us.
72. In Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 the Full Court of the Federal Court said:
    3. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.

(Citations omitted)

73. We agree. The appeal against the parenting orders fails.

Should there have been a superannuation splitting order made?

74. The father submits that instead of adjusting the non-superannuation property by 10 per cent in favour of the mother, taking into account considerations raised by s 75(2) of the Act, his Honour ought to instead have made a superannuation splitting order.
75. The non-superannuation property consisted of three properties – two held in a company owned by the father and which were treated as effectively being his, and a jointly owned home. The total net value was $683,033.
76. The father had a superannuation interest in a defined benefit scheme. His interest was both commutable and splittable. For the latter purpose, his interest was valued at $646,808.
77. In addition to seeking an order that she receive 30 per cent of the
    non-superannuation property, the mother sought a splitting order that would see her receive 30 per cent of the father’s superannuation. His Honour declined to make that order.
78. The primary judge found that the parties’ contributions to the property and welfare of the family favoured the father 70 per cent to 30 per cent. As we have said, the adjustment under s 75(2) of the Act led to the father receiving 60 per cent of the non-superannuation property and the mother 40 per cent. In making this adjustment, the primary judge took into account the father’s superannuation and the fact that no splitting order was to be made (at [268]).
79. The gravamen of the father’s submission is that he would have preferred to receive a larger portion of the non-superannuation property and give up part of his pension entitlement by way of a splitting order.
80. Whilst this is an approach that could have been taken, the fatal difficulty for the father is that he did not, at any stage, suggest such a course to the primary judge.
81. The father’s Initiating Application filed on 18 January 2015 did not seek any orders relating to property. In her Response, the mother sought an unspecified property division.
82. The father filed a Further Amended Initiating Application on 7 May 2018. It again sought no orders as to property.
83. The Amended Response was filed on 8 June 2018. It sought orders that would see the mother receive 30 per cent of the parties’ net property. She also sought a 30 per cent superannuation splitting order in her favour.
84. At the hearing, the mother contended for the orders set out in her Amended Response.
85. The father did not engage with the property proceedings in that he did not file any application for property orders and did not present any evidence that bore upon this issue. The primary judge recorded that the father acknowledged that he had been given the opportunity but had chosen not to take it up.
86. The only submission that the father made on the issue of property was to remind his Honour that the date of the last member contribution to his superannuation fund was 24 February 2006, which was before the commencement of the relationship.
87. The father did not propose any orders and made no comment on those put forward by the mother.
88. In these circumstances, it is impossible for the father to assert that the primary judge erred. A party cannot complain that a judge failed to follow or to consider a particular course when it was not put before them. It is now too late to raise the issue because had it been raised with the primary judge, the hearing may have taken a different course: Metwally v University of Wollongong (1985) 60 ALR 68; Water Board v Moustakas (1988) 180 CLR 491.

CONCLUSION

89. It follows that the appeal will be dismissed.

COSTS

90. Both the ICL and the mother sought orders that the father pay their costs of $6,654 and $17,399.20, respectively.
91. Each has been calculated at Legal Aid rates or in accordance with the relevant scale under schedule 3 of the Family Law Rules 2004 (Cth).
92. The father’s appeal was wholly unsuccessful. The costs of dealing with the appeal were increased by the manner in which it was presented. It is just, in all of the circumstances, that the father pay the costs of the ICL and the mother.
93. The mother’s costs sought include an amount for the preparation of the Application in an Appeal seeking summary dismissal of the appeal under s 96AA of the Act. Whilst there was force in the substance of the Application, it was filed too late for any benefit to be obtained, even if it was successful.
94. On balance, we consider the costs of its preparation should not be paid by the father as it was prepared too late in the proceedings to be of any utility. The costs of preparing the Application do not appear from the schedule of costs handed up by the mother. The hourly rate that was charged was $350 per hour. Doing the best we can, $2,000 shall be deducted from the mother’s costs to reflect this.
95. There will be orders for costs as sought by the ICL and the mother. The father, without opposition, sought that he have six months from the date of the hearing of the appeal to pay any costs. We will make that order.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 13 June 2019.

Associate:

Date: 13 June 2019