Annesley & Pembleton
[2022] FedCFamC1A 8
•7 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Annesley & Pembleton [2022] FedCFamC1A 8
Appeal from: Pembleton & Annesley [2021] FCCA 535 Appeal number(s): EAA 55 of 2021 File number(s): NCC 1307 of 2019 Judgment of: MCCLELLAND DCJ, BERMAN & HARPER JJ Date of judgment: 7 February 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders – Where the child is to continue living with the father and spend time with the mother – Where the parties are to have equal shared parental responsibility – Where the primary judge dismissed applications for recusal – Apprehended bias – Actual bias – Where there is no error in dismissing the recusal applications – Admissibility of evidence – Where the appellant alleges the primary judge erred in failing to grant leave to rely upon an affidavit – Where the primary judge considered the relevance and probative value of the evidence and no error is identified – Whether the primary judge gave proper consideration to evidence of family violence and the evidence of the family consultant – Where the evidence was properly considered and there is no error – Insufficient or inadequate reasons – Where proper consideration and reasons were given – Appeal dismissed – Costs ordered. Legislation: Evidence Act 1995 (Cth) ss 55, 56, 135, 136
Family Law Act 1975 (Cth) ss 60CC(2), 61DA, 69ZN, 69ZP, 69ZQ, 69ZR, 69ZT, 69ZX, 117, 117(2A)
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 3
Federal Circuit Court Rules 2001 (Cth) r 15.29
Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bartlett & Bartlett (1994) FLC 92-455; [1994] FamCA 7
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ellis v The Queen [2015] NSWCCA 262
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liq) (1999) 160 ALR 588; [1999] HCA 3Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 119 Date of hearing: 2 November 2021 Place: Sydney (via video link) Counsel for the Applicant: Mr Kelly Solicitor for the Applicant: Duncan MacLean & Associates Counsel for the Respondent: Mr Boyd Solicitor for the Respondent: LBK Solicitors ORDERS
EAA 55 of 2021
NCC 1307 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ANNESLEY
Appellant
AND: MR PEMBLETON
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, BERMAN & HARPER JJ
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Appeal EAA 55 of 2021 is dismissed.
2.The appellant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of THREE THOUSAND NINE HUNDRED AND SIXTY DOLLARS ($3,960).
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 Annesley & Pembleton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, BERMAN & HARPER JJ
INTRODUCTION
Ms Annesley (“the mother”) appeals against the orders made by a judge of the Federal Circuit Court of Australia (as it then was) on 12 May 2021 which dismissed her application for sole parental responsibility and primary care of child X, born in 2016 (“the child”).
Her Honour published reasons for judgment on 12 May 2021. The orders provided that, inter alia, Mr Pembleton (“the father”) have equal shared parental responsibility with the mother and that the child live with him and spend time with the mother summarised as follows:
(1)Until the child commences school in 2022:
(a)In week one, on a fortnightly basis each alternate week during school terms from 4.00 pm Friday until 9.00 am Monday or until 9.00 am on Tuesday if Monday is a public holiday;
(b)In week two, on a fortnightly basis each alternate week during school terms from 4.00 pm on Wednesday until 4.00 pm on Friday;
(c)During the term one, two and three school holidays from 4.00 pm on the second Monday of the holidays until 9.00 am on the following Friday;
(d)During the 2021/2022 Christmas school holidays from 4.00 pm on the third Monday of the holiday period until 4.00 pm on the following Saturday and continuing each alternate week thereafter until the resumption of school in term one, 2022.
(2)Upon the child commencing school in 2022:
(a)Each alternate weekend during school terms from the conclusion of school on Thursday until the commencement of school on Monday;
(b)For one half of the holidays at the end of terms one, two and three.
(3)Until the child reaches 8 years of age, each alternate week during the Christmas school holidays.
(4)Upon the child reaching 8 years of age, for one half of the Christmas school holidays.
Her Honour’s orders provided for the mother’s time to increase from term three 2022 by the addition of a further night in the intervening week.
By reference to the Further Amended Notice of Appeal filed 22 October 2021, the mother seeks that should the appeal be allowed, the matter be remitted for rehearing.
BACKGROUND
It was uncontentious that the mother was the primary carer for the child until a life threatening illness required an extended period of hospitalisation for the mother. The child was about 20 months old at the time.
The primary judge correctly understood that, consequent upon the mother’s recovery and her regaining adequate health, she expected the child to be returned to her care. The period of the mother’s hospitalisation was about ten months.
Notwithstanding the mother’s apparent recovery, the father contended that there was now a close attachment with the child and it was not in the child’s best interests that the mother should resume primary care. Rather, the father proposed that given his assessment that the parties would be able to reach consensus in respect of parenting arrangements, as and from 2022, the child should live with him and spend each alternate weekend, from Thursday to Monday, and half of the school holidays with the mother.
It appears that whilst the mother was initially prepared to consider a shared care arrangement, her proposal at trial was that the child should return to her primary care and spend each alternate weekend and half of the school holidays with the father.
The parties were not able to agree on parental responsibility. The father sought equal shared parental responsibility whereas the mother considered that she was not easily able to stand up to the father and, as such, she sought sole parental responsibility.
THE REASONS OF THE PRIMARY JUDGE
After referring to the history of the litigation between the parties, the relevant background and the parties’ current circumstances, the primary judge concluded that:
200.However one consideration has not changed, and that is whether there would be any benefit to [the child] in making a major change to his care arrangements.
201.It is clear from the way the mother’s counsel conducted her case that she is still fixated on what she considers to be the unfairness of the orders which were made on 10 May 2019. Her counsel referred during submissions to an alleged agreement by the father to return [the child] to her primary care.
202.There is no evidence that was ever such an agreement and even if there had been, nothing in the evidence I have heard suggests that it would be in [the child’s] best interests to make a radical change to his care arrangements.
203.[The child] had to endure a radical change to his living arrangements when the mother went into hospital and he adapted that change, but that is not a reason to make a further radical change when nothing in the evidence suggests that it is necessary to ensure [the child’s] health and safety, to ensure that he receives proper parenting or to ensure that he has a strong relationship with both of his parents.
The primary judge placed significant weight on the recommendation of the family consultant that the child continue to live in the primary care of the father. As is apparent from the following extract, the primary judge was not persuaded by the counsel for the mother’s criticism that the report was “a very shallow glance”:[1]
204. There is force in the following passage in the family report:
If the father’s proposal is implemented, then the child will remain in his primary care which the child has been in for the past 12 months. He will also continue to have ongoing and consistent time with the mother weekly which will maintain their relationship. The child is not at risk of harm in the father’s care, is developing appropriately, is happy and confident and appears to be managing the current arrangement well. He has a well-developed and secure relationship with the father and continuing to live with him and have consistent time with the mother will ensure that the mother and child have an opportunity to develop their relationship further while not placing the child under undue stress.
(Footnote omitted)
[1] Transcript 2 February 2021, p.370 lines 9–10.
The primary judge did not find that there had been family violence or abuse, and in the absence of evidence that the presumption pursuant to s 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) should be rebutted, the presumption should apply.
The primary judge considered counsel for the mother’s submission that there existed a power imbalance between the parties which could only be addressed by the mother having sole parental responsibility.
The primary judge did not consider that sole parental responsibility would be in the child’s best interests and observed that:
177.… They were able to parent [the child] co-operatively prior to the mother going to hospital, they reached many agreements while she was in hospital and they have been able to be flexible about some matters since then.
178.This is not a case in which one parent pervasively denigrates the other nor am I satisfied is it a case where one parent has used coercion and control to get their own way.
…
181.[The child] has two valuable parents and I intend to make an order that the parties have equal shared parental responsibility for [the child].
THE APPEAL
The Further Amended Notice of Appeal contains 14 grounds of appeal, all of which are pressed.
Ground 1 concerns a challenge to the determination of the primary judge that the evidence of Ms M (“the father’s previous partner”), contained in her affidavit filed 15 May 2020, would not be received.
Grounds 2 and 3 contend that the primary judge failed to recuse herself on the ground of apprehended bias, consequent upon two failed applications made during the course of the hearing that her Honour disqualify herself.
Grounds 4, 5, 6 and 7 complain that the primary judge fell into error by concluding that she could not find, on the balance of probabilities, that the father had perpetrated family violence by reason of his coercive, controlling, or otherwise violent behaviour.
A further basis for the appellants’ complaint that the primary judge failed to properly consider family violence arises from the primary judge’s reliance upon the opinion of the family consultant in circumstances where it is asserted that she failed to highlight or consider the potential relevance arising from an incident wherein the mother alleges she was left by the side of the road in 2016.
Grounds 8 and 9 assert that the primary judge was not sufficiently alive to the shortcomings inherent in the family report and evidence of the family consultant and, as such, this evidence should have been given little or no weight by her Honour.
Grounds 10 and 11 complain that the primary judge did not make orders restraining the paternal step-grandmother from spending unsupervised time with the child, and that no order was made restraining child N, the child of the father and his previous partner, from coming into contact with the subject child.
Grounds 12 and 13 assert that the primary judge exceeded the reasonable ambit of the exercise of her discretion, although the target of complaint is not obvious, nor is it readily apparent as to which aspect or area of the primary judge’s determination it is asserted that she failed to give proper reasons.
Ground 14 is of narrow compass and is a complaint that the primary judge did not give adequate reasons for the inclusion of Order 12 in the final orders made 12 May 2021, namely that if the mother is required to leave City C to attend medical appointments and the child is in her care, then she is to inform the father and the child will remain with him during her absence.
JUDICIAL PREJUDICE
The High Court, in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117], observed that challenges on the basis of bias ought to be dealt with ahead of other substantive challenges to the orders because if the ground of bias is made out, the remedy would be a retrial.
Whilst not clear from counsel for the mother’s summary of argument, it became apparent during his submissions that Grounds 2 and 3 were not limited to the dismissal of two applications made during the course of the proceedings that the primary judge recuse herself for apprehended bias. The mother’s counsel submitted that the primary judge had not conducted a fair trial, that relevant evidence had been excluded without good reason and that, in some way, the primary judge had disregarded evidence that the father had previously misled the Court in respect of the determination of an interim application. He asserted that there was actual bias arising from the appearance that the primary judge “had already made a ruling that [the father] was a suitable parent and he appeared to just float lightly through his case as though no one was going to touch him. And that’s the impression that the mother gained”.[2]
[2] Transcript 7 October 2020, p.252 lines 34–37.
In final submissions to the primary judge, the mother’s counsel did not renew or press a further recusal application.
When an appellant has not raised the issue of bias before the trial judge or sought disqualification on the basis of bias, the appellant is restricted in the ability to raise the issue on appeal (see Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”)). We accept that there is support for the approach that the principles in Vakauta may not be applied as stringently in parenting proceedings. In Bartlett & Bartlett (1994) FLC 92-455 at 80,712, the Full Court observed:
… that the decisions of the Full Court in Re P, supra, and in Stiffle, supra, support the proposition that in the context of a custody case, strict rules such as those laid down in Vakauta’s case, may not apply. We would generally have difficulty with the proposition that a decision as to the welfare of a child must be determined by the manner in which the child’s parents or their counsel conduct their respective cases.
The case on appeal is however different, in that applications for the primary judge to recuse herself on the basis of apprehended bias were made on day one and day three of the proceedings.
The first application was founded upon two issues, the first being the treatment by the primary judge of the admission of annexure “A” to the mother’s trial affidavit which comprises of an offer from the father’s solicitors to the mother’s solicitors. The primary judge inquired of the father’s counsel whether he took an objection to the document remaining as part of the mother’s trial affidavit. No objection was taken. For reasons that are not entirely clear, in circumstances where it is only the father who might suffer prejudice, counsel for the mother considered the lack of objection by the father’s counsel to have significance. It does not.
The second issue concerns the refusal by the primary judge to grant leave for the mother to rely upon the affidavit of the father’s previous partner, Ms M.
The argument in respect of the status of the father’s previous partner’s affidavit was heard and determined by the primary judge as a preliminary matter in the proceedings.
Counsel for the mother argued that the primary judge fell into error by not granting leave for the mother to rely upon the father’s previous partner’s affidavit and, as such, that and what was submitted by the mother’s counsel to be the appearance given by the primary judge that the father was afforded “great leeway”[3] in the conduct of his case, invited a finding of apprehended bias.
[3] Transcript 20 May 2020, p.81 line 30.
The gravamen of the counsel for the mother’s submission appears as follows in the transcript:
Every step of the way your Honour is giving the father great leeway, he’s evasive in his answers, but your Honour will, in my submission, and the mother’s perception, giving the father the benefit each and every time, and a moment ago, your Honour telegraphed to the father that this was 12 months ago, so maybe he – if he can’t remember, he should just say he can’t remember it because it was a long time ago. That wasn’t an appropriate thing to say to the witness.
Now, the test for this – and, your Honour, the test as to whether or not such an application would be successful or not – and your Honour is aware of these cases as well as – as well as I – it’s a reasonably informed observer in the back of the court, whether or not they would have a perception of – not actual bias, but a perception – perception of bias. Now, my submission is if such a person sitting in the back of this room, or perhaps on Teams in the modern era, at the stage we’re doing this now through ‘21, would have that perception for all the reasons I’ve stated before.
(Transcript 20 May 2020, p.81 lines 30–43.)
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality pointed out the following:
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Counsel for the mother was challenged on appeal with the proposition that an assertion that the primary judge gave the father impermissible leeway in receiving his evidence, and that she had impermissibly assisted the father in the giving of his evidence, is a complaint of actual bias rather than apprehended bias. The mother’s counsel conceded that whilst the grounds of appeal were drafted in terms of apprehended bias, the manner in which it is alleged that the primary judge assisted the father was redolent of actual bias.
A complaint of actual bias requires the complainant to demonstrate that the decision maker’s mind is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“MIMA v Jia Legeng”) at [72]. It requires the complainant “to establish … the subjective motives, attitudes, predilections or purposes of the decision-maker” (MIMA v Jia Legeng at [111].) It is rare that actual bias can be demonstrated.
Counsel for the mother failed to establish that the primary judge did not attend to the proceedings with an open mind, nor that she had an ulterior motive or was not capable of being able to carefully consider the evidence.
The primary judge dismissed the first recusal application. She was correct to do so.
The second application was made on day three of the proceedings. Counsel for the mother asserted the following:
·That the primary judge had engaged in excessive judicial questioning such that unfairness was created to the father requiring that the judgment be set aside;
·That the primary judge might not be impartial and bring an open mind to issues requiring determination; and
·By reference to the decision of Ellis v The Queen [2015] NSWCCA 262 that:
65.Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case…
(Citations omitted)
Inherent in counsel for the mother’s presentation is an assertion that, in addition to apprehended bias, the primary judge’s conduct amounted to actual bias.
Counsel for the mother seized upon an answer given by the father as to whether he considered there were any difficulties in his home leading to behavioural issues displayed by child N. The father’s answer was that her Honour had made a finding that the problems with child N emanated from her mother’s household.
The reference by counsel was in respect of separate proceedings between the father and the father’s previous partner, apparently presided over by the primary judge. It was as a consequence of the father’s response that the mother considered the primary judge had already made a determination of the substantive issue, namely the retention by the father of primary care of the child.
The basis for counsel for the mother’s assertion is contained within pages 252–254 of the transcript of 7 October 2020, which can be summarised as follows:
·In cross-examination, the father’s assessment of whether his household may have provided an explanation for the purported behavioural difficulties of child N was informed by his understanding of the remarks of the primary judge in proceedings involving the father and the father’s previous partner;
·An impression gained by the mother that the father was unchallenged by the primary judge;
·That the father did not take child N to the family report assessment, thereby creating the impression that “there’s this whole body of evidence, whole case, someone sitting at the back of this court would see that we don’t know and we’re not exposed to that”;[4]
·That the primary judge did not allow cross-examination of the father in respect of allegations that, as a child, he had been the subject of sexual abuse by the paternal step-grandmother;
·That the primary judge did not have proper regard to an assertion that the father misled the Court in respect of an affidavit filed by him in support of interim orders made on 10 May 2019; and
·That the primary judge was unnecessarily critical of the manner in which counsel for the mother cross-examined the father and his witnesses.
[4] Transcript 7 October 2020, p.252 lines 45–47.
The contention was amplified by counsel for the mother referring to the primary judge challenging the utility of a question put to Ms D concerning her relationship with the father. The complaint was that counsel for the father did not object to the line of questioning because of an asserted agreement between the father’s counsel and the primary judge that he would not object. The mother’s counsel did not suggest that there had been “any back room discussions”,[5] but that there appeared to be some understanding as to the manner in which counsel for the father would conduct himself.
[5] Transcript 7 October 2020, p.254 line 34.
The submission of counsel for the mother is not supported by the following exchange:
[MR KELLY]:So did you – and you were aware, weren’t you, that [child N] has had some history of a number of years of self-harming? --- At that point, no. I am now.
[MR KELLY]:Do you think it was wise to continue on a relationship with a student’s father given the circumstances?--- Yes. I put in practical place requirements around it. Yes.
[MR KELLY]:Did you reflect that it perhaps wouldn’t have been in [child N’s] interests for you to continue a relationship with [Mr Pembleton?] --- I considered at the time how – am I able to give further detail, your Honour? I’m not certain.
HER HONOUR: Well, I notice ---
MR KELLY:No. That’s – it’s easier if I ask the questions and you answer them.
HER HONOUR: --- that it is easier, Mr Kelly, but my case is about [the child] and Mr Boyd isn’t objecting which causes me a little bit of surprise to be honest. What’s the relevance of the question, Mr Kelly? You’re asking this witness about her choices in a relationship. You’re not asking the father about them. You’re asking this witness about her choices in connection with a different child. Can you please explain to me how this is going to assist me to make a decision about [the child].
MR KELLY:Your Honour, it’s this witness is in a relationship from March of ʼ20 – 2020 to September of 2020 and she’s taking it upon herself two months into a relationship to write a report favourable for [the child] to continue to live with [Mr Pembleton] based on her observations of [Mr Pembleton’s] household and [Mr Pembleton’s] household consists of child N four days a fortnight or five days a fortnight. Nothing mentioned in here about that.
HER HONOUR: Mr Kelly, if you want to ask her about that, you can. What you asked her though was whether she felt she was wise to enter into the relationship and what I’m struggling with is the relevance of that. If you want to ask questions on the other topic, then please do so, but you will have to convince me of the relevance of that. Now, Mr Kelly, I know Mr Boyd hasn’t objected and I don’t like jumping in when people don’t object. I don’t like doing it but I have an obligation to control the length of proceedings, Mr Kelly. There are people banging on this door wanting their matters heard. I’ve got an obligation to keep trials on track. So I ---
MR BOYD:Your Honour, I thought we had an agreement – well, that’s an inappropriate word – I would refrain from interjecting on relevance because of the time things were taking. If I’m now released from that embargo, I will object if I see something irrelevant, your Honour.
HER HONOUR: Yes.
MR KELLY: Yes.
HER HONOUR: Mr Boyd, I don’t want to encourage objections but on the other hand that was said in a specific context when we were nearing the end of [Mr Pembleton’s] cross-examination and it seemed the most prudent course but I didn’t intend that to be a blanket restraint on people objecting. It’s important that relevance is kept in mind in these cases. So, yes, Mr Kelly, what do you want to say about that?
MR KELLY:It’s inappropriate for Mr Boyd to consider that yourself and he had an agreement that excludes me or any other party to these proceedings.
HER HONOUR: Mr Kelly, that’s unfair. What Mr Boyd was referring to was a statement I made towards the end of your cross-examination of [Mr Pembleton] and I indicated at that stage when Mr Boyd did object that it was preferable that we conclude that cross-examination. There’s no agreement between me and Mr Boyd. I was referring to the exchange in open court, Mr Kelly. …
(Transcript 6 October 2020, p.178 line 15 to p.179 line 28.)
Counsel for the mother did not pursue the question put to Ms D.
There is no basis for counsel for the mother’s submission that there was some tacit or implicit agreement between the father’s counsel and the primary judge. The primary judge’s conduct was transparent and submissions of counsel for the mother do not accord with her Honour’s transcribed remarks.
Counsel for the mother’s submissions in asserting either apprehended bias or actual bias impermissibly conflate the mother’s assessment of the proceedings with the test to be applied, namely “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]).
The primary judge did not fall into error in dismissing the second application and, accordingly, no error has been shown in respect of Grounds 2 and 3.
GROUND 1 – EXCLUSION OF THE EVIDENCE OF THE FATHER’S PREVIOUS PARTNER
On the first day of trial, the primary judge raised with counsel the question of whether leave should be granted to the mother to rely upon the affidavit of the father’s previous partner (“the Ms M affidavit”), who is the mother of child N. The mother sought to rely upon the Ms M affidavit.
The primary judge raised with both counsel that the content of the affidavit appeared to concern the conflict between the father and the father’s previous partner, with the implication that it had little relevance to the current proceedings.
Counsel for the father indicated his intention to object to the Ms M affidavit being received into evidence on the basis that “[l]arge swathes of it relate to her daughter who is not the subject child. It struck me she is trying to run her own family law case in this case”.[6]
[6] Transcript 20 May 2020, p.5 lines 14–15.
It appears from the remarks of the primary judge that she harboured the same concerns as the father’s counsel.[7]
[7] Transcript 20 May 2020, p.5 line 17.
The further objection by the father’s counsel was that, whilst neither party strictly complied with the trial directions requiring affidavits to be filed by 20 April 2020, the delivery of the Ms M affidavit on 15 May 2020 did not allow counsel to take instructions from the father.
Counsel for the mother submitted that the Ms M affidavit was relevant, although its focus may be better revealed after the cross-examination of each of the parties.
Counsel for the mother further submitted that the Ms M affidavit was relevant to the circumstances in the father’s household and, in particular, an assertion that his home environment may have been the cause for child N’s maladjustment and behavioural difficulties and, as such, was a relevant consideration for the primary judge to consider when determining parenting orders in the best interests of the child.
The primary judge dismissed what was in reality an application for leave to rely upon the Ms M affidavit on the basis that the affidavit:
·was lengthy and voluminous;
·extensively canvassed a dispute between the father and the father’s previous partner;
·relied on the hearsay evidence of child N and therefore was unlikely to be given significant weight;
·was directed to the ongoing parenting dispute between the father and the father’s previous partner; and
·if received into evidence, was likely to exponentially increase the length of the trial in circumstances where the primary judge was not persuaded that she would be assisted by it in determining the separate parenting proposals of the parties.
On appeal, counsel for the mother submitted that if the evidence of the father’s previous partner was accepted, it was evidence not only of family violence to child N, but also, according to her, violence involving the subject child.
The submission was further amplified by a focus that child N was a significant person in the father’s household and given that there was broad acceptance of the proposition that child N had mental health issues and presumably may represent a risk to the child, the Ms M affidavit was relevant to an understanding of the circumstances in the father’s home that may have created an environment that caused, or at the very least exacerbated, child N’s mental health issues and the consequent oppositional behaviour.
Whether evidence is or is not admissible is determined by the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”), but in particular ss 55 and 56, which provide:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
The High Court in IMM v The Queen (2016) 257 CLR 300 considered the scope of ss 55 and 56 of the Evidence Act as follows:
38.… There can be no doubt that the reference to the effect that the evidence “could” have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its “rational” effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.
39.…
40.Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, “probative”. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.
(Bold emphasis added and footnotes omitted)
The Full Court in Britt & Britt (2017) FLC 93-764 (“Britt”) summarised the position as follows at 77,105:
31.Thus, evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value.
The primary judge did not consider that the Ms M affidavit contained evidence that was relevant to an issue in the proceedings, in this case, the alleged circumstances in the father’s home. The remarks of the primary judge expressed a concern that there was “a very strong flavour in that affidavit [of] Ms M running her own parenting case within it”.[8] The remarks are indicative of the primary judge questioning the relevance, and therefore the probative value of the Ms M affidavit.
[8] Transcript 20 May 2020, p.7 lines 35–36.
The Ms M affidavit ran for 28 pages, including annexures, and contained 331 paragraphs. No attempt was made by counsel for the mother to identify paragraphs that should be considered as relevant to the current proceedings.
Paragraph 39 of counsel for the mother’s summary of argument on appeal identifies paragraphs that he considers would have assisted the primary judge in determining whether the father perpetrated family violence.
Whilst it is questionable that the highlighted paragraphs would have assisted the primary judge, the mother’s case at first instance was not predicated upon a finding that the father perpetrated family violence. The purported relevance of the father’s previous partner’s evidence was to support the mother’s submission that the father had a poor record of co-parenting with his previous partner and she did not want the same to occur with the father in respect of the subject child.
The high watermark of the relevance of the father’s previous partner’s evidence was to establish that child N’s medical records “will demonstrate that the father has emotionally abused [child N]”.[9] The mother also concedes that any difficulties in the co-parenting relationship between the father and his previous partner may well have been caused by both of them being difficult.
[9] Mother’s Case Outline filed 17 May 2020, paragraph 50.
The primary judge also considered that, whilst the mother sought an order for sole parental responsibility and that the child live with her and spend significant and substantial time with the father, the mother’s proposal was not predicated upon family violence but rather a concern that the father would not willingly co-parent with her.
The principles for conducting child related proceedings are as set out in Div 12A of Pt VII of the Act.
Section 69ZN of the Act requires that the Court must give effect to the principles as contained in ss 69ZN(3) to (7). Of relevance is the second principle as set out in s 69ZN(4), namely that “the court is to actively direct, control and manage the conduct of the proceedings”, and the fifth principle as set out in s 69ZN(7) that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.”
Section 69ZQ of the Act sets out the general duties that need to be considered in giving effect to the principles in s 69ZN.
Section 69ZR of the Act provides the power to make determinations, findings and orders at any stage of the proceedings. The note to s 69ZR(1) is in the following terms:
For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
Section 69ZT of the Act identifies the provisions of the Evidence Act which do not apply to child related proceedings.
Sections 135 and 136 of the Evidence Act are not excluded. They provide:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
Section 69ZX of the Act provides for the Court’s general duties and powers relating to evidence. In giving effect to the principles in s 69ZN, the Court may give direction as to the following matters outlined s 69ZX(1):
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
…
The provisions of Div 12A of the Act provide for an enhanced focus on case management practices to require the Court and the parties to focus on what is in the best interests of a child and allow for a more inquisitorial approach to be adopted by the Court.
The revised explanatory memorandum that underpins s 69ZP of the Act reinforces the focus and importance of appropriate case management:
361.New section 69ZP provides that the court may exercise a power under Division 12A either on the court’s own initiative or at the request of a party to the proceedings. This gives the court flexibility in discharging its obligation to actively manage cases in a way that encourages parents to focus on their child and on their ongoing relationship as parents and without undue delay or formality. It ensures a more inquisitorial approach by courts to resolving children’s issues. This is appropriate given that decisions must be made in the best interests of the child not just on the position put to the court by the parties.
(Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth))
Rule 15.29 of the Federal Circuit Court Rules 2001 (Cth)[10] provides for objectionable material to be struck out as follows:
[10] Repealed as a consequence of the repeal of the Federal Circuit Court of Australia Act 1999 (Cth) by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 3.
(1)The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a)is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
…
Whilst a determination of the relevance of evidence early in a trial should be approached cautiously (see Britt at [43]–[44]), the primary judge had the advantage of the trial affidavits of each of the parties and what is a considerable quantity of documents upon which each of the parties sought to rely. The primary judge also had the opportunity of considering the content of the Ms M affidavit although, as discussed, she was not assisted by counsel in identifying which paragraphs, if any, were to be relied upon by the mother as relevant and supportive of the orders sought by her.
The reasons of the primary judge indicate that she considered the relevance and probative value of the Ms M affidavit. She considered that, in circumstances where the affidavit was filed late, purportedly relevant paragraphs were not identified, significant portions of the evidence had no relevance to the proceedings, the deponent was reporting statements of child N and where the evidence was likely to be more prejudicial than probative, the affidavit was not relevant. No error is identified in her Honour’s refusal to grant leave for the mother to rely upon the evidence of the father’s previous partner.
Ground 1 of the appeal should fail.
GROUNDS 4, 5, 6 AND 7 – WHETHER THE PRIMARY JUDGE PROPERLY CONSIDERED FAMILY VIOLENCE
The challenge was that the primary judge did not give proper consideration to the evidence of family violence in respect of the following:
·The consideration of s 60CC(2) of the Act;
·The evidence of family violence perpetrated by the father towards the mother and the child;
·The purported evidence of the father’s coercive and controlling behaviour towards the mother; and
·The failure to properly consider the evidence of the family violence within the father’s home and the risk posed to the child by other members of the father’s household.
This submission is without merit.
At [96], the primary judge found that “[the child] has a meaningful relationship with both of his parents and there is nothing to suggest that either parent is engaging in behaviour which is likely to undermine his relationship with the other parent.”
The primary judge considered the need to protect the child from physical or psychological harm and found as follows:
98.[The child] is not at risk of being subjected to or exposed to abuse, neglect or family violence in the care of either parent. The mother made some allegations about family violence which I will assess later but she did not suggest that [the child] was likely to be exposed to abuse, neglect or family violence in the father’s care. The highest her case went was that [the child] might be exposed to emotional harm if he remained with the father and that issue is better considered in the context of assessing the father’s parenting capacity.
Specifically, at [142] of the reasons for judgment, the primary judge highlighted that she “must consider any family violence involving the child or a member of the child’s family.”
The primary judge noted the allegations of the mother concerning coercive and controlling behaviour by the father, and following a comprehensive consideration of the mother’s various allegations, at [148] her Honour found that “[i]t is not possible for me to make findings on the balance of probabilities that the father has behaved in a coercive, controlling or otherwise violent way.” Moreover, at [151], the following appears:
… It is one party’s word against the others, as are the other allegations the mother made about financial abuse, and with all these allegations as well there is a risk that the mother has either consciously or unconsciously tailored her evidence to bolster her case that [the child] should return to her primary care.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liq) (1999) 160 ALR 588, Kirby J considered the peculiar advantage of a trial judge and said:
90.The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. …
(Footnotes omitted)
The primary judge was alive to the mother’s contention that the father had perpetrated family violence in various forms. The primary judge properly considered the mother’s evidence and was not able to make a determination as sought by her.
Accordingly, Grounds 4, 5, 6 and 7 should fail.
GROUND 8 – WHETHER THE PRIMARY JUDGE ERRED BY FAILING TO CONSIDER THE SHORTCOMINGS IN EVIDENCE OF THE FAMILY CONSULTANT
The extent of the mother’s challenge was that the family consultant did not include and give weight in her report to the mother’s statement that she believed she was tricked by the father to get into his car so that, at a later time, he could force her out.
The family consultant properly considered the separate proposals of the parties and recorded that, whilst the father denied the mother’s allegations of family violence and abuse, the high watermark of those allegations “related to controlling and emotionally abusive behaviour perpetrated by the father”.[11]
[11] Family Report dated 3 October 2019, paragraph 49.
The family consultant determined at paragraph 105 of their report that:
… The child is not at risk of harm in the father’s care, is developing appropriately, is happy and confident and appears to be managing the current arrangement well. He has a well-developed and secure relationship with the father and continuing to live with him and have consistent time with the mother will ensure that the mother and child have an opportunity to develop their relationship further while not placing the child under undue stress.
The primary judge gave detailed consideration to the content of the family report, specifically at [182]–[190] of the reasons and, whilst her Honour made the following findings:
191.The recommendations the family consultant made were based on a careful analysis of the situation against a backdrop of her showing considerable insight into the mother’s situation and an understanding of her position.
192.The recommendations in a well-prepared report such as this deserve respect, made as they are by an experienced clinical psychologist who has been a Regulation 7 Family consultant for seven years and who had the advantage of seeing the child as well as the parties.
she considered that the evidence of the family consultant as contained in the report was but one piece of the evidential matrix.
The primary judge gave adequate and critical consideration to the evidence of the family consultant.
No error was demonstrated on the part of the primary judge in bringing to account the evidence of the family consultant. This ground should fail.
GROUND 9 – FAILURE TO ALLOW THE TENDER OF THE FAMILY CONSULTANT’S NOTES
The utility of this challenge is not readily apparent. The notes of the family consultant were produced and presumably assisted counsel for the mother in cross-examination. The primary judge declined to permit the tender of the bundle of the handwritten notes consisting of 48 pages. She was entitled to do so given that it would have been impermissible for the primary judge to be influenced by the contents of the notes which were not the subject of cross-examination.
The primary judge did not fall into error and this ground should fail.
GROUNDS 10 AND 11 – FAILURE TO MAKE ORDERS RESTRAINING THE CHILD FROM HAVING ANY CONTACT WITH THE PATERNAL STEP-GRANDMOTHER
The mother considered that the paternal step-grandmother presented as a risk to the child due to an allegation that the father may have been sexually assaulted by the paternal step-grandmother and that, hence, the child may be at risk of similar abuse.
The primary judge did not ignore the issue but rather properly considered the evidence and found that an order of restraint was not necessary in circumstances where the father was properly protective of the child.
No error was demonstrated in the consideration and treatment of the evidence by the primary judge.
This ground should fail.
GROUNDS 12 AND 13 – THE PRIMARY JUDGE ERRED BY GIVING INSUFFICIENT OR INADEQUATE REASONS
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (“Soulemezis”) at 279, McHugh J considered that:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
Soulemezis, along with a series of other cases in the New South Wales Court of Appeal, were considered and cited with approval in Bennett & Bennett (1991) FLC 92-191 (“Bennett”). At 78,267, the Full Court considered that:
… the inadequacy of her Honour’s reasons … might well amount to [an error capable of vitiating the proceedings]. At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
The challenge by the mother is as to a general claim that the primary judge’s exercise of discretion was unreasonable and unjust and that she did not give proper reasons.
There is no particularity or context provided. Accordingly, there is no cogent challenge and these grounds should fail.
GROUND 14 – WHETHER THE TRIAL JUDGE ERRED IN FAILING TO GIVE PROPER REASONS FOR THE INCLUSION OF ORDER 12 OF THE ORDERS MADE 12 MAY 2021
The challenge was that a consideration of the judgment does not reveal reasons for the following order to be made:
12.If the mother needs to leave [City C] for medical appointments and is unable to arrange that appointment for a day when the child is not in her care, she shall inform the father that she will be unavailable to care for the child and the child will remain with the father while the mother attends such appointments.
The order is however not without foundation, as is self-evident from the following exchange extracted from the transcript:
HER HONOUR: Mr Boyd, I’m sorry, but I just want to go back to an issue you raised about the mother leaving [the child] with her mother when she went to [City U].
MR BOYD:Yes.
HER HONOUR: And she said she hadn’t done that since the matter has been in court. The reason she hasn’t done that since the matter has been in court, Mr Boyd, is because there was an order made on 10 May 2019 that if the mother left [City C] for a medical appointment and she was unable to arrange that appointment for a day [the child] wasn’t in her care, then [the child] was to remain with the father while the mother went to [City U] or [City DD] for her appointment.
[Ms Annesley], are you willing for me to continue that order in the future? --- Yes. At present, I make sure that my appointments aren’t on days that I have [the child.]
MR KELLY:Your Honour, could I be heard on that with the mother being – negotiating her position from the witness box. Given her health, there would be no impediment for her driving to a medical appointment, collecting her mother on the way, or whatever it may be. There is no need for that into the future, given her current health.
HER HONOUR: Well I won’t hold ---
MR KELLY:And if she ---
HER HONOUR: Alright. Mr Kelly, I won’t hold the mother to her answer and we will have a discussion about that in submissions. But I just wanted to make it clear that that’s why that hasn’t happened since the proceedings have been on foot, because there’s an order about it. And I will have to consider as part of the case, depending on what I do, whether that order should continue, Mr Kelly. So I’m just putting it out there for people. Yes, Mr Boyd.
(Transcript 7 October 2020, p.210 lines 16–46.)
The comments of Kirby J in AMS v AIF (1999) 199 CLR 160 are apposite:
150.… an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
(Footnotes omitted)
At [216] of the reasons for judgment, the primary judge considered the use of cannabis by the maternal grandmother and found that “there could be occasions when she is not fit to care for the child because she would not be focussed on him, able to respond to an emergency or able to ensure that he was properly supervised.”
The inclusion of Order 12 in the final orders arises from the concession by the mother that such an order was necessary, and that the mother would arrange for her medical appointments to occur on days that she does not have the care of the child.
The order made by the primary judge was not without proper consideration and reasons, and as such the primary judge did not err. Accordingly, this ground should fail.
DISPOSITION
The appeal should be dismissed.
COSTS
At the conclusion of the hearing of the appeal, each party made submissions in relation to the costs of the appeal.
If the appeal was successful, the mother sought scale costs from the father in the sum of $16,937.92 or, in the alternative, that there should be a provision of a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
On behalf of the father, it was submitted that if the appeal was successful then it would be appropriate for the provision of costs certificates to each party.
If the appeal was unsuccessful, the father sought scale costs in the sum of $3,960.
Section 117 of the Act provides that each party to proceedings under the Act shall bear their own costs unless there are circumstances that justify the making of an order consequent upon a consideration of s 117(2A) of the Act.
The mother has been wholly unsuccessful. Whilst it is accepted that the mother’s financial circumstances are poor, impecuniosity is not in itself a barrier or a bar to the making of a costs order. In the current circumstances, the quantum of costs as sought by the father is modest and an order should be made in terms of his costs schedule.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Berman and Harper. Associate:
Dated: 7 February 2022
2
11
5