Alkaios & Shams
[2023] FedCFamC1A 212
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Alkaios & Shams [2023] FedCFamC1A 212
Appeal from: Shams & Alkaios [2023] FedCFamC2F 1029 Appeal number: NAA 253 of 2023 File number: MLC 13363 of 2021 Judgment of: SCHONELL J Date of judgment: 30 November 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant contended that the primary erred in failing to accord procedural fairness through relying on extraneous material not in evidence – Where the extraneous material was first referred to in the judgment and the appellant had no opportunity to respond – Where the extraneous material was used to draw adverse inferences – Applicability of s 144 of the Evidence Act 1995 (Cth) – Where the Court cannot conclude that the primary judge would have made the same findings without reference to the extraneous material – Error of law established – Where the appellant contended that the primary judge erred in findings of fact pertaining to family violence perpetrated by the appellant against one of the children – Where the primary judge’s finding that the appellant was the perpetrator of family violence and in rejecting the single expert’s evidence was based on an erroneous finding – Where such erroneous finding of fact informed the primary judge’s conclusions as to the primary considerations – Error established – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to both parties. Legislation: Evidence Act1995 (Cth) s 144
Family Law Act 1975 (Cth) s 60CC
Cases cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Capic v Ford Motor Company of Australia Pty Ltd (2021) 154 ACSR 235; [2021] FCA 715
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Crabman & Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCAFC 146
Director of Public Prosecutions v Gramelis [2010] NSWSC 787
Kent v Wotton & Byrne Pty Ltd (2006) 15 Tas R 264; [2006] TASSC 8
Lamereaux and Noirnot (2008) FLC 93-364; [2008] FamCAFC 22
Prentice v Cummins (No. 5) (2002) 124 FCR 67; [2002] FCA 1503
R v Magoulias [2003] NSWCCA 143
Shell & Armel [2022] FedCFamC1A 83
Number of paragraphs: 45 Date of hearing: 21 November 2023 Place: Sydney Counsel for the Appellant: Ms Mallett KC Solicitor for the Appellant: Westminster Lawyers Counsel for the Respondent: Ms Colla Solicitor for the Respondent: Brendan Rothschild Legal Group ORDERS
NAA 253 of 2023
MLC 13363 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ALKAIOS
Appellant
AND: MS SHAMS
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 3, 4, 5 and 14 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 16 August 2023 are set aside.
3.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.
5.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.
6.The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Alkaios & Shams has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Amended Notice of Appeal filed 16 October 2023, the appellant father Mr Alkaios (“the appellant”) appeals the primary judge’s orders permitting the relocation of the parties’ two children to Queensland to live with the respondent mother, Ms Shams (“the respondent”). The appeal was opposed by the respondent.
The Amended Notice of Appeal contended five separate grounds, two of which had multiple sub-grounds. While there was some overlap and a degree of repetition across the grounds, they fell into four broad categories: error in findings of fact (Ground 1); inadequacy of reasons (Grounds 3 and 4); a failure to accord procedural fairness (Ground 5); and an omnibus ground that contended errors in failing to follow the “legal pathway” and what was described as an error in her Honour’s “approach to the fundamental question before the Court” (Ground 2).
Consistent with authority, where an appeal contends a denial of procedural fairness such ground must be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). Irrespective of the correctness of the result, in the event that the appellant is successful on such ground, a new trial must be ordered.
As their Honours observed in Crabman & Crabman (No 2) (2020) 61 Fam LR 191:
16.Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 at [117]). Unless this is done, the impression created by the defective course remains and undermines public confidence in the administration of justice (Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [28]).
BACKGROUND
The parties commenced cohabitation in or around October 2012. The primary judge found that separation occurred on 7 February 2017 (at [153]).
The parties have two children together, namely X who is 10 years of age and Y who is 7 years of age.
The parties’ relationship is marked by a high degree of parental conflict.
The respondent contended that the appellant was the perpetrator of family violence against her and the children. The appellant largely denied this contention. The primary judge found that that the appellant was controlling as well as physically and verbally abusive towards the respondent and the children (at [42], [48], [58] and [69]).
Following separation, the children lived with the respondent and spent time with the appellant, which eventually progressed to equal time. Both parties and the children lived in Melbourne.
On 29 October 2021, the respondent sought the appellant’s consent to relocate to Queensland with the children and subsequently enrolled the children into a school in Queensland without the appellant’s knowledge or consent.
On 19 November 2021, the appellant indicated to the respondent that he opposed the relocation.
On 1 December 2021, the respondent commenced proceedings seeking orders permitting her to relocate to Queensland with the children.
In December 2022, a Family Report issued that included a recommendation that the children be permitted to relocate with the respondent to Queensland.
In January 2023, the respondent and children travelled to Queensland. On 8 January 2023, being the day that the children were to return to the appellant, the respondent informed the appellant that she would not be returning them.
On 10 January 2023, the appellant filed an Application in a Proceeding seeking the return of the children.
On 15 February 2023, orders were made by a senior judicial registrar that the respondent return the children to Melbourne and, in the event that the respondent did not return to Melbourne, the children live with the appellant and spend time with the respondent.
The children were subsequently returned to Melbourne and the appellant assumed their primary care. The respondent remained living in Queensland and spent time with the children in accordance with the orders of 15 February 2023.
In June 2023, an updated Family Report issued that included a recommendation that the children remain in the appellant’s primary care and not be permitted to relocate.
On 16 August 2023, the primary judge delivered her reasons for judgment and made orders permitting the relocation of the children to Queensland. In reaching her decision, her Honour found that the children’s best interests were met by living with the respondent in Queensland, in part based on her findings of family violence perpetrated by the appellant (at [212]).
THE APPEAL
As stated earlier, where in an appeal a ground contends a denial of procedural fairness such ground must be dealt with first.
GROUND 5
5.The [primary] [j]udge erred in relying upon matters which were not the subject of evidence in the case at paragraphs 51, 63, 64, 147 and 166 of the Reasons for Judgment which individually or collectively amounts to a denial of procedural fairness to the [appellant].
(As per the original)
The relevant paragraphs referred to in the ground are as follows:
51. Even if these incidents are as the [appellant] described, being sent outside is qualitatively different to being sent to one’s room. In any event, there are experts who say the naughty corner approach is not good parenting, and should be confined to a maximum of one minute for each year of a child’s age.
…
63.Of particular concern is the [appellant’s] using the word “faggot”. As we know, it is a particularly derogatory and damaging word. Suicide amongst gay men and teenagers is tragically all too common. The casual use of words such as “faggot” can cause gay men and boys to feel shame and humiliation, which can lead to depression and suicide.
64. It is not known yet if [X] or [Y] are gay. The use of the word “faggot” might have no direct impact on them. However, statistically, at least one person in the school classroom of each of them would be gay. If [X] and [Y] copy [the appellant] and use the word “faggot” at school, not only will they get into trouble with their school, they might also be contributing to one of their friends developing depression and committing suicide. That is obviously not in the best interests of [X] or [Y].
…
147. It is to be expected that, if [X] and [Y] were to relocate to be with the [respondent], they would soon become accustomed to vegan food, and learn of its benefits in relation to climate change, animal welfare and life on Earth generally. That would be especially so if the [appellant] could be child focussed enough to be supportive of the [respondent’s] principles in this regard.
…
166. The [appellant] said, secondly, that the [respondent] could not provide for [X] and [Y’s] needs because she is a vegan and expects them to be as well. It is very well known that vegan diets can be perfectly adequate, and, arguably, are healthier than diets that include red meat.
The appellant submitted that the primary judge relied upon “opinions and evidential sources that were not in evidence” (appellant’s Summary of Argument filed 16 October 2023, p.15, paragraph 5.1) that were not raised with the single expert, and for which it was not possible for the appellant to respond as they were raised for the first time in her Honour’s judgment. The ground, as drafted, contended error by denial of procedural fairness and implicitly asserted error of law by reliance on extraneous material not in evidence. In further support of the appellant’s submission, the appellant’s Summary of Argument also referenced the primary judge’s finding as follows:
106. Neither party provided any evidence to the court about the advisability or otherwise of children having COVID vaccinations. However, a quick Google search indicates that about 38% of children aged five to 11 years have had two doses of the COVID vaccine. There is a general view that COVID is usually very mild in children.
In reply, the respondent submitted:
77. There is no appealable error. It is submitted that the topics arise in the judgment as topics presented in evidence by the parties and not pursued with any real vigour, appropriately so. The comments or observations made by the trial judge may properly be considered either irrelevant comment, ‘common knowledge’ or obiter dicta. The comments do not bring the judgment into appealable error.
(Respondent’s Summary of Argument filed 16 October 2023)
The respondent’s submission clearly raises the application of s 144 of the Evidence Act1995 (Cth) (“the Evidence Act”).
The parties were given no prior notice by the primary judge that she would be informing herself of expert evidence about parenting practices that was not before the Court (at [51]), the causes of suicide and depression in gay men (at [63]), reliance upon statistics that were not before her (at [64]), the benefits of a vegan food in relation to climate change and life on earth generally (at [147]), that vegan diets are healthier than diets that include red meat (at [166]), or in undertaking google searches (at [106]).
If there is no evidence of a particular fact and that fact vitiates the ultimate decision, then there is an error of law, and the appeal must be allowed (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139).
The Full Court observed in Lamereaux and Noirnot (2008) FLC 93-364:
48. The limits placed by law on reliance by a Judge on evidence, other than evidence regularly adduced by the parties to the litigation, are designed to ensure procedural fairness.
A court is entitled to take judicial notice of certain matters that are common knowledge such as asbestos is dangerous, clocks may run at slightly different times and that driving a car carries a degree of risk (see R v Magoulias [2003] NSWCCA 143; Kent v Wotton & Byrne Pty Ltd (2006) 15 Tas R 264; Capic v Ford Motor Companyof Australia Pty Ltd (2021) 154 ACSR 235). The common law position is encapsulated in s 144 of the Evidence Act.
Section 144 of the Evidence Act provides as follows:
144 Matters of common knowledge
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2)The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
Therefore, proof is not required about matters that are not reasonably open to question, of common knowledge in the locality or capable of verification through documents the authenticity of which is not open to question. However, the rider to the use of such evidence is qualified by the proviso in s 144(4). Here, no party was given the opportunity to make submissions about the matters the primary judge relied upon.
In Prentice v Cummins (No. 5) (2002) 124 FCR 67, Sackville J observed that s 144(4) of the Evidence Act:
85.… provides that the judge is to give a party such opportunity to make submissions, and to refer to relevant information as is necessary to ensure that the party is not unfairly prejudiced. If it is impossible to take into account knowledge of the kind referred to in s 144(1) without unfairly prejudicing one of the parties, I would read s 144(4) as authorising the Court to decline to take that knowledge into account, even if the requirements of s 144(1) otherwise appear to be satisfied.
While in Director of Public Prosecutions v Gramelis [2010] NSWSC 787, Price J stated that “[t]he requirements of s 144(4) are directed at ensuring that the parties are accorded procedural fairness where matters of common knowledge are to be acquired or taken into account” (at [51]).
It is questionable whether any of the extraneous matters relied upon by the primary judge could be described as matters of common knowledge. In each instance, the asserted expert opinion, statistics or research were not in evidence. In each instance, the extraneous material was relied upon to draw an inference or buttress a finding adverse to the appellant. There was no capacity for any party to question the admissibility of such opinions or research, test its veracity or determine whether it was even reliably sourced.
It is a fundamental requirement of natural justice that parties be given an opportunity to controvert or comment upon the evidence to be relied upon. Courts do not undertake enquiries or investigations without notice or consent or in secret. It is not in issue that the primary judge failed to bring to the attention of the parties’ legal representatives the extraneous matters she relied upon in the above paragraphs. It is impossible to discern what effect, if any, these matters had upon the primary judge’s determination. In those circumstances, it cannot, as the respondent’s counsel submitted, be categorised as irrelevant to the determination or merely obiter. I cannot safely conclude that the primary judge would have reached the same conclusion had she not had regard to the above matters. While other evidence might have justified the primary judge’s determination, as the Full Court observed in Shell & Armel [2022] FedCFamC1A 83 at [41], that is not to the point.
I am satisfied that the reference by the primary judge to this extraneous material that was not in evidence constitutes appealable error.
GROUND 1
1.The [primary] [j]udge has made erroneous findings with respect to risk and in particular to family violence [AB76 [paragraphs 134 and 135]].
…
(d) The [primary] [j]udge erred in making findings of fact regarding the [appellant] committing “violence towards [Y]” and using punitive parenting that posed a risk.
(As per the original)
Ground 1(d) addressed the primary judge’s finding that the:
48.… [appellant] grabbed [Y’s] clothing near the front of his neck and pressed his fist into [Y’s] throat, which inhibited his breathing. This would have felt to [Y] like being strangled and would have been incredibly frightening.
The primary judge described it as family violence (at [48]). The primary judge’s findings as to family violence informed many of the primary judge’s conclusions.
In dealing with the primary considerations and s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the primary judge found that “[Y] has himself been the victim of family violence when the [appellant] grabbed [Y’s] clothing near his neck and pressed his fist into [Y’s] throat” (at [134]).
The primary judge took the finding into account in her consideration of s 60CC(3)(f) of the Act in assessing the appellant’s capacity to provide for the needs of the children (at [168]). The primary judge also took it into account in rejecting the single expert’s recommendation that the children remain living with the appellant in Melbourne.
The primary judge recorded the following:
207. Based on a misapprehension of the DFFH report, [the single expert] seems to have considered that any violence by the [appellant] was trifling or non-existent. However, as discussed above, I am satisfied that the [appellant] assaulted the [respondent] and [Y], and has perpetrated family violence through verbal attacks on the [respondent].
…
211. All in all, it appears that [the single expert] did not factor into her second set of recommendations the [appellant’s] violence, abuse and control. …
Counsel for the respondent properly conceded that there was no evidence that the appellant had “pressed his fist into [Y’s] throat”, nor was there any evidence that the child’s breathing was inhibited or that the child was frightened.
I am satisfied in light of the above that a part of the primary judge’s reasons for finding that the appellant was violent and a perpetrator of family violence and for rejecting the evidence of the single expert was based on an erroneous finding of fact. In circumstances where that erroneous finding of fact was relied upon in part by the primary judge in informing the second of the primary considerations and in part rejecting the expert evidence, I could not safely conclude that the primary judge would have reached the same conclusion but for such error.
I am satisfied that the errors referred to above have the effect of vitiating the ultimate determination, rendering it unsafe.
In circumstance where an error of law has been established, the appeal will be allowed. As such, it is unnecessary to address the remaining grounds.
COSTS
In the event that the appeal was allowed, both parties sought a costs certificate for the appeal and for the rehearing. In circumstances whereby the appeal has succeeded on a question of law, it is appropriate that costs certificate be granted, and I will order accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 30 November 2023
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