Artan & Shaheen
[2023] FedCFamC1A 221
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Artan & Shaheen [2023] FedCFamC1A 221
Appeal from: Shaheen & Artan [2023] FCWA 166 Appeal number: NAA 231 of 2023 File number: PTW 1114 of 2019 Judgment of: TREE, HOWARD & BRASCH JJ Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where appellant sought to adduce evidence that was reasonably available at time of trial or otherwise amounted to subjective commentary on the conduct of the trial – Where court provided transcript for 2022 part of trial but appellant declined to acquire the 2023 tranche of transcript – Application in an Appeal dismissed.
FAMILY LAW – APPEAL – PARENTING AND PROPERTY – Appeal against parenting and property orders – Where grounds of appeal and Summary of Argument are dense, repetitious and difficult to discern – Where grounds of appeal and Summary of Argument descend into social commentary and a multitude of complaints about matters and people beyond the primary judge’s reasons and orders – Where no ground of appeal is made good – Appeal dismissed – Appellant ordered to pay respondent’s costs in a fixed sum.
Legislation: Evidence Act 1995 (Cth) s 13
Family Law Act 1975 (Cth) ss 60CC(3)(a), 60CD, 62G, 68L(5), 68LA(5)(b), 69ZX(3), 79, 93A (repealed), 117(2A)(e)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Marriage Act 1961 (Cth)
United Nations Convention on the Rights of the Child (1989)
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) No 2 (2010) FLC 93-435; [2010] FamCAFC 64
Douglas and Douglas (2006) FLC 93-300; [2006] FamCA 1291
G & C [2006] FamCA 994
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mayne v Mayne (2011) FLC 93-479; [2011] FamCAFC 192
Minister for Immigration and BorderProtection v Eden (2016) 240 FCR 158; [2016] FCAFC 28
Saltern & Mink [2020] FamCAFC 320
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 138 Date of hearing: 21 November 2023 Place: Brisbane (via video-link) Solicitor for the Appellant: Litigant in person Counsel for the Respondent: Ms Anderson Solicitor for the Respondent: Hartrey Legal Counsel for the Independent Children's Lawyer: Mr Rice Solicitor for the Independent Children's Lawyer: Griffith Rice & Co ORDERS
NAA 231 of 2023
PTW 1114 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ARTAN
Appellant
AND: MS SHAHEEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE, HOWARD & BRASCH JJ
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 14 November 2023 is dismissed.
2.The appeal is dismissed.
3.Within 60 days of the date of these orders, the appellant father is to pay the costs of the respondent mother fixed in the amount of $20,000.
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 Artan & Shaheen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, HOWARD & BRASCH JJ:
INTRODUCTION
This is an appeal from parenting and property orders made by a judge of the Family Court of Western Australia on 16 August 2023 in proceedings between the father, Mr Artan (“the appellant”), the mother, Ms Shaheen (“the respondent”), and the Independent Children’s Lawyer (“the ICL”).
The parents have two children, X (“X”) now 20 years of age, and Y (“Y”) now 11 years old (“the children”). As X had turned 18 years by the time of trial, it therefore only concerned the parenting arrangements for Y (“the child”).
The parenting orders of the primary judge provided that Y live with the respondent and have no time and no communication with the appellant. Provisions were made for the appellant to receive some educational information about the child, and to send her cards, gifts or letters on three specified times a year.
The primary judge’s property orders provided that the appellant transfer the former matrimonial home at Suburb B and a motor vehicle (“the motor vehicle”) to the respondent. Otherwise, the parties kept their respective assets and liabilities, resulting in an entitlement of 65 per cent to the respondent and 35 per cent to the appellant.
By a Notice of Appeal filed 21 September 2023, the appellant appeals the entirety of the parenting and property orders, save for the orders about the motor vehicle and the return of the appellant’s personal items.
If the appeal is upheld, the appellant seeks the following orders:
1. I am requesting the full parental responsibility of my daughter, Miss [Y].
2. Weekly shared time for the other party with my daughter as per my agreement.
3. Proper calculation for splitting the assets, considering a reasonable cut off date for this marriage, and proper calculations to establish fairness, as I suggested within the attached pages.
(Notice of Appeal filed 21 September 2023, p.4)
He supplemented that list in his Summary of Argument filed 18 October 2023 with:
2) My requests as follows: I am requesting full parental responsibility of my daughter Miss [Y], and shared time with the OP (other party). In unfortunate case of the judges disagreeing, I would like to have shared parental responsibility and time with my daughter.
3) Regarding wealth distribution; I request keeping ownership of the house with the condition for the OP to live in that house forever by paying me for the bills (land tax & water / council bills around $6000 annually). If this is not acceptable, then, I suggest for the OP to receive 60% of the sum of the house sale price after costs.
(Summary of Argument filed 18 October 2023, paragraphs 2–3)
The respondent and the ICL both sought orders that the appeal be dismissed.
BACKGROUND
The appellant father was born in 1970 and the respondent mother born in 1979.
The parties were married in Country C in 2001 and migrated to Australia in 2002.
X was born in 2003 and Y in 2012. The parties lived in a range of locations including Country C, Sydney, Brisbane, City M, Perth, Adelaide and Country D, with the appellant also travelling to work in Country E and Country F, the latter between 2014 to 2018.
The parties physically separated in October 2018 when the police were called and directed the appellant to leave the parties’ home.
The children have seen very little of the appellant since separation. Pursuant to court orders, the parties engaged in family therapy and alongside this, Y had six supervised visits with the appellant in 2021. The supervision was cancelled by the service provider due to Y’s distress. The Family Therapist also cancelled the therapeutic process and recommended each parent address their own psychological needs and reduce the levels of personal conflict.
The respondent commenced proceedings on 13 February 2019 seeking property and spouse maintenance orders. The appellant joined issue with that by filing his Response on 3 April 2019, and added parenting. The respondent filed a Reply to the parenting issues on 21 May 2019.
The matter came on for trial for four days in September 2022 and four days in May 2023.
At first instance, the respondent and the ICL proposed, in short, that the respondent have sole parental responsibility for Y, who would live with the respondent and only spend time with the appellant if agreed by the respondent. A number of injunctions were sought restraining the appellant from accessing information directly from Y’s school and restraining the appellant from removing her from school and the respondent’s care.
The appellant sought orders for sole parental responsibility. Despite seeking an order to test Y’s paternity via DNA, the appellant proposed she live with him and spend time with the respondent supervised by him. He proposed such time “only be upon my written approval”. He also sought an injunction preventing Y from leaving Australia.
The appellant sought a range of other orders, including:
…the discharge of the Family Consultant "over her insults and harassment", referral of the ICL and the [respondent’s] solicitor "for their reckless and unlawful acts against my children's best interest (sic)", the docketed magistrate be "discharged without honour…for …purposefully crafted harmful acts", an order banning the supervisor "from working in the courts industries (sic)", dismissal of the Family Therapist "from the Family Court system and her professional titles" and “appropriate financial remedy to health the children’s trauma (sic)”
(At [13] and Minute of Orders sought by the father filed 5 September 2022, p.1-2).
He also had some three pages calculating costs and apportioning expenses incurred by the respondent going back to at least 2009.
The primary judge delivered reasons and orders on 16 August 2023. The primary judge’s orders largely followed those proposed by the respondent and the ICL.
APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides the Court with a wide discretion to admit further evidence on appeal. The High Court considered the principles relevant to the discretion to admit evidence on an appeal in respect of the earlier relevant section, s 93A of the Family Law Act 1975 (Cth) (“the Act”), in CDJ v VAJ (1998) 197 CLR 172. It is a well-known and often cited authority.
On 14 November 2023, the appellant filed an Application in an Appeal, supported by an affidavit of his own and another from a witness in his case at first instance, Mr G. The gravamen of the application was that we receive Mr G’s more expansive affidavit in the appeal.
The appellant’s affidavit complained that at trial, Mr G was cut off explaining something in cross-examination and that the appellant did not get to cross examine his own witness. Mr G must have given evidence in the May 2023 part of the trial. We infer that because the Court provided the parties with the 2022 transcript when the matter went part-heard and Mr G was not the subject of cross-examination in that part of the trial.
The appellant declined to acquire the 2023 transcript. Thus, when the appellant said the witness was cut off, we could not identify where and how this occurred, much less whether the witness was answering responsively. The lack of the 2023 transcript made it hard for the appellant to demonstrate error on the part of the primary judge in so far as conduct is concerned. But that was a consequence of his choice.
That said, when the appellant complained in his Notice of Appeal at paragraph 1.9 that the primary judge “disallowed me to cross examine the witness [Mr G]”, the lack of transcript is not an impediment. Mr G was a witness in the appellant’s case; if the trial judge did not allow the appellant to cross-examine his own witness, then that was entirely appropriate. There was no suggestion that Mr G was a hostile witness.
The affidavit of Mr G recounted his view of how the trial was run. However, his subjective commentary neither advances the application, nor the appeal. The balance of the affidavit concerned historical observations, which were plainly available at the time of trial, along with many other paragraphs that were scandalous and/or irrelevant.
The Application in an Appeal is misconceived and will be dismissed.
THE APPEAL
Both the property and parenting orders arise from the primary judge’s exercise of discretion, which means the appellant must point to the type of errors long recognised in House v The King (1936) 55 CLR 499 at 504–505:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The appellant bears the onus of not only demonstrating error, but that a different result might have flowed had the error not occurred (Allesch v Maunz (2000) 203 CLR 172; Saltern & Mink [2020] FamCAFC 320).
It is also well settled that a trial judge does not need to mention every single piece of evidence and every single submission; see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62] per Gleeson CJ, McHugh and Gummow JJ, and, Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386 per Mahoney JA who said this:
… It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
The grounds of appeal
The appellant’s Notice of Appeal contained five grounds of appeal albeit running to some 45 closely typed pages. The headings to the grounds were:
(1)The judge acted on a wrong principle;
(2)The judge allowed extraneous or irrelevant matters to guide or affect her;
(3)The judge mistakes the facts;
(4)The judge does not take into account some material consideration;
(5)The orders are unreasonable or plainly unjust.
Each of these grounds contained a raft of subparagraphs, which did not necessarily marry up with the headings nor evince proper grounds of appeal. For example, in subparagraphs of the Notice of Appeal relevant to Ground 1 (wrong principle), it was said (amongst other things):
Ground for appeal: It is an act of crime to call someone abusive, where there are opposing facts available. My case and name are recorded and seen by many. This story and the outcome of the court has and will be given to the public. I seek the leave of the appeal court to use Defamation Act 2005 Devision 3 for my family court trial affidavit to be considered for claiming damages.
…
Ground for appeal: I wonder how many of you heard the recordings of the sercrative meetings in between […] (the alledged victim of rape) with the media figures and Labor members of parliament. If you haven’t then my point is proven, as most likely in your mind you still believe […] a perpetrator.
…
Grounds for appeal: The Duluth model follows a sexist indoctrination, which is widely used within the family court systems by the magistrates, judges, their so-called experts and the rest of the family court related organisations…
…
1.12. I’m not sure if it is within the field of the court of appeal to consider that I have received Land Tax bill on a house that I was booted out from and can’t get back in.
(As per the original)
Similarly, Grounds 2 to 5 contained innumerable sub-grounds which do not speak to appellable error by the primary judge, including but not limited to:
2.2 … Ground for appeal: The other party had secret video recordings of me, which she produced to the Magistrates court trial judge…
…
2.4 ... Ground for appeal: During one of the supervised visitation, my daughter mentioned that the other party told her that if she come to live with me, she won’t be able to see her mother and brother. Similar lies being told to a child is mental torture and child abuse to say such a thing to a child, and untruthful, as that was never my intention…
…
3.3 … Ground for the appeal: The other party has been raising many allegations and always had the habit of blaming everyone else for her personal issues…
…
4.1 ... Ground for appeal: The judge had my mother in her court room. She could ask her directly about this experience [the appellant alleging the respondent bit the paternal grandmother in or about 2007], which she did not…
4.2 ... Ground for appeal: Within my family court trial affidavit, I named few of those men whom I had the possibility to know about, which visited my children in the house during my absence…
…
4.9 The role of media in changing the Australian society’s perception, which a judge can’t be psychologically and mentally separated from, combined with the natural judgmental thoughts towards men, to protect women are of factors I would like to draw your attention to…
…
5.3 ... Ground for appeal: We are social creatures for a reason. Because the most important protection for a human is the family and relatives. That’s how we have survived till today…
(As per the original)
In his Summary of Argument filed 18 October 2023 the appellant set out 73 paragraphs culminating in the submission the primary judge “erred on all accounts by the end result of the orders”. Some of the contentions in the Summary are impermissibly new, as they were not raised in the Notice of Appeal, for example, that the primary judge erred in not making orders for DNA testing and for the production of the Country C marriage certificate by the respondent to the appellant. Other grounds are the same or similar to those in the Notice of Appeal.
However, like the Notice of Appeal, the paragraphs in the Summary of Argument are dense, repetitious and their meaning often difficult to discern. They often ventured into social commentary about matters irrelevant to the appeal and cited various authorities and legislation as oracular pronouncements without context or point. The criticisms also extended beyond the primary judge’s reasons and orders to include a litany of lament and complaints about the ICL, the Single Expert and an earlier decision of a Magistrate, whose reasons are not the subject of appeal.
We will not entertain those arguments, commentary or contentions which do not fall within a ground of appeal.
By the time of oral submissions, the appellant confirmed that his grounds could be encapsulated as follows:
(a)The primary judge erred because she found the appellant had committed acts of family violence when the respondent had not complained to doctors;
(b)The primary judge did not place sufficient weight on the appellant’s good relationship with the children;
(c)The primary judge erred in not mentioning his witnesses, Mr and Mrs H, “in the index”;
(d)The primary judge erred in giving limited weight to the appellant’s witnesses but gave some weight to the supervisor’s report;
(e)The primary judge erred by not giving the appellant “control” over the children’s medication and education;
(f)The primary judge’s findings were not open on the evidence;
(g)The primary judge erred in not allowing the appellant to cross-examine his own witness;
(h)The primary judge erred by not using the date of a separation in 2009 to strike the Balance Sheet;
(i)The primary judge erred in giving too much weight to some evidence and not enough to other evidence;
(j)The primary judge acted on wrong principle by the children being involved in the proceedings and thereby caused them distress;
(k)The primary judge should have found the respondent acted with animus towards to the appellant;
(l)The end result of the children having no contact with the appellant was plainly unreasonable;
(m)The primary judge gave insufficient weight to the proceedings in the Magistrates Court;
(n)The primary judge failed to mention the respondent’s other relationships and her attitude to the appellant; and
(o)The primary judge may have had “an ideology”.
It is convenient to adopt that ordering, and we will deal with those matters in turn.
The primary judge erred because she found the appellant had committed acts of family violence when the respondent had not complained to doctors
Critically, the primary judge found at [188]:
(a) The [appellant] has behaved in a physically violent manner towards the [respondent], including striking her, consistent with the [respondent evidence, and corroborated by the statements of both [X] and [Y] to the Single Expert Witness.
(b) Both parents have behaved in a verbally and emotionally abusive manner towards one another, to which the children were exposed.
(c) The [appellant] has hit and physically disciplined [X] and [Y], consistent with their disclosures to various third parties, including Mr [J], the ICL and Ms [K].
(d) The [appellant] has behaved in an emotionally abusive manner towards the children. He has denigrated the [respondent] to [X] and [Y]. He has directly involved [Y] in adult disputes, as demonstrated by his conduct during family therapy, and supervised visits.
(e) The [appellant] has behaved in a financially controlling manner since separation. He has withdrawn significant cash sums, failed to make adequate financial provision for the support of the [respondent] and the children, in the knowledge that they were entirely reliant upon him to do so.
That said, the primary judge did not accept all the respondent’s allegations and rejected the respondent’s suggestion in the Magistrates Court that the appellant had not provided her with financial support. The primary judge considered that “was untrue” (at [24]).
The appellant’s submissions were that the respondent went to doctors “at will” and did not complain about family violence. He thought it markedly inconsistent that the respondent alleged family violence but had not told medical providers. Therefore, he said the primary judge’s findings of family violence were not open to her Honour.
But the respondent did complain to doctors, and the primary judge referred to this at [67].
Pages 160–161 of Exhibit 20 is a record of the respondent attending a doctor at the Suburb B Medical Centre in early 2018:
Disclosed history of DV, reports [appellant] has also been violent towards eldest child and his own sister in past [respondent] planning to leave marriage, is in the process of arranging appts with women’s support counselling for assistance & support with exit strategy
States is currently safe – [appellant] overseas
Lengthy discussion about safety and increased risk surrounding time of exit from marriage – information provided re: safety netting, emergency bag packing, copying important documents, crisis support phone numbers, etc.
...
Of note, [respondent] tells me that she has a history of domestic violence within her marriage, including violence from her husband towards her eldest child. Her husband has been working in [Country F] for the last four years so life at home has been greatly improved, but she recently discovered that he has resigned and will be returning to Australia. This news has prompted [the respondent] to start considering divorce – she plans to see a women’s support counsellor in the near future to start planning her exit from the marriage. I have provided her today with some advice regarding safety-netting and exit planning.
Reasons for contact:
...
Domestic Violence – victim
Depression
(Exhibit 20, p.160–161) (Underline emphasis added)
The respondent clearly said enough in her history of family violence for the doctor to describe her as “Domestic Violence - victim”.
Page 176 of Exhibit 20 is a record from a psychiatrist at a medical clinic, who wrote on 26 June 2018:
…
[The respondent] is a 38 year old married [Country C] migrant. She has two children aged 15 years and 6 years of age. [The respondent] described a history of marital discord with verbal and physical abuse from her husband dating back to the first year into their marriage (15 years ago). [The respondent] also described her husband being verbally abusive towards their eldest son, [X] and on a number of occasions, hitting him resulting in pain but no obvious physical injury. [X] was refusing to attend school last year and was referred to a paediatrician and has been diagnosed with Autism (and ? learning difficulties). [X] has also been seeing a clinical Psychologist to help with his emotional difficulties and [the respondent] reports that these professionals are aware of the family issues and history of abuse.
…
... [The respondent] stated that she has met with a counsellor at a domestic violence support organisation and had contacted Department of Child Protection to advise them of her circumstances and her choice to end her relationship. ....
(Exhibit 20, p.176) (Emphasis added)
The premise of this ground is misconceived; the respondent did complain to medical professionals.
It may be the appellant was arguing that the respondent did not complain earlier. There could be many reasons why family violence victims/survivors may not contemporaneously complain. In this case, the respondent said the appellant attended many medical appointments with her, spoke about her to the doctors, chose a doctor for her, but also that her English “wasn’t that good” (Transcript 20 September 2022, p.228 line 27 to p.230 line 7 and Transcript 21 September 2022, p.335 lines 24–48).
In any event, the primary judge’s findings, as extracted above, were well open on the evidence.
In his Notice of Appeal at paragraph 3.1, the appellant further submitted:
Quoting from the family court’s reasons for the order “158 The [appellant] acknowledged he had physically disciplined [X].”.
Ground for appeal: The judge erred. I never made such a wrong statement!!! I repeatedly verbally / in writing denied the allegations as I never did wrong. I wonder how such huge mistakes could be made…
On a proper reading of the reasons at [155]–[167], the primary judge was summarising the evidence given by the Family Therapist. The source of this evidence is the Therapist’s report as confirmed in cross-examination:
Yes, and – yes. In the – the [appellant], you say – and this is – if I could ask you to turn to page 2 of your report, this is your report of 7 July – that – at paragraph 8, the [appellant] admitted to you that there was physical discipline of [X]?---Minor.
Did he say what – did he say what?---Just minor discipline of – physical discipline of [X], but not of [Y].
You didn’t go into that in detail?---No.
(Transcript 19 September 2022, p.44 lines 25–34)
Relevantly, the primary judge found at [188]:
(c) The [appellant] has hit and physically disciplined [X] and [Y], consistent with their disclosures to various third parties, including Mr [J], the ICL and Ms [K].
That is, the primary judge made her findings on what the children had said and not what the Family Therapist said the appellant had acknowledged.
This ground fails.
The primary judge did not place sufficient weight on the appellant’s good relationship with the children
The case law in respect of a weight challenge is also well settled. As Justice Stephen said in Gronow v Gronow (1979) 144 CLR 513 at [10]:
10. The constant emphasis of the cases is that before reversal an Appellate Court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of judicial discretion. Whilst authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an Appellate Court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify a reversal can be due to little else but a difference of view as to weight: It follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the Trial Judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the Trial Judge can do, an Appellate Court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Both before the primary judge and before this Court, the appellant was at pains to highlight he had a good relationship with Y. Further, he did not consider a change of residence would cause any trauma much less stress to her.
However, Y has had a limited relationship with the appellant since 2018; that is almost half her life at the time of trial. Her supervised time with the appellant in 2021 ended after six sessions because of her distress.
We have no doubt the appellant believes he had and still has a good relationship with Y, but the evidence before the primary judge was that for her, the idea of time with the appellant, even supervised, was one that caused her distress and anxiety. Time with the appellant was also something contrary to her wishes.
This ground amplified the appellant’s position before the primary judge and this Court – he had a fixed view of his relationship with Y and could not countenance she did not share that. This ground also confirmed the primary judge’s findings about the appellant’s lack of insight and rigid thinking.
Accepting for a moment Y had a good relationship with the appellant prior to 2018 (albeit with the appellant’s long absences in Country F between 2014 to 2018), the primary judge’s focus was a prospective one (G & C [2006] FamCA 994 at [72]) focused on asking whether a relationship with the appellant going forward would be healthy, beneficial and, most importantly, safe for Y.
The primary judge carefully and thoroughly assessed and weighed the evidence before her. The primary judge was well alert to the fact that the appellant “loves the children dearly and is distressed by the breakdown of his relationship with [Y] and [X]. He desperately wants to be part of the children’s lives, and to ensure that [Y] has a meaningful relationship with him, and his extended paternal family” (at [25]).
However, the task for the primary judge was not to meet what the appellant wanted, but to do what was in Y’s best interests.
The primary judge accepted that Y did have a good relationship with the appellant when younger, but that meaningful relationship no longer existed (at [186]). At [187] the primary judge determined it was in Y’s best interests to have a meaningful relationship with the appellant, but at [228]–[233] determined that was outweighed by the risk of harm he posed to her. The primary judge’s findings on harm are summarised at [193]; they are detailed, thorough, reasoned and well open on the evidence.
In those circumstances, whilst the primary judge accepted there had been a good relationship between Y and the appellant in the past, her Honour found that no longer existed. The primary judge ultimately did what the legislation requires – namely, balanced the prospect of a meaningful relationship against protection from harm. The primary judge determined the balance fell in favour of the latter, which cannot be said to be plainly wrong.
This ground fails.
The primary judge erred in not mentioning his witnesses, Mr and Mrs H, in the index
This ground can be disposed of quickly. It is irrelevant whether Mr and Mrs H were mentioned in an index. What matters is that the primary judge was aware of their affidavits and said this at [31] and [35]:
31. [Mrs H] is a friend of the [appellant], whose affidavit was supportive of the [appellant]. [Mrs H] deposed to having been friends with the family since 2012, and held concerns for each parent and the children. [Mrs H] described the [appellant’s] parenting of the children prior to separation in positive terms, including the [appellant’s] efforts to support the family financially. [Mrs H] did not observe the [appellant] behaving in an abusive manner towards the [respondent]. [Mrs H] has had no contact with the children since 2018. In circumstances where [Mrs H] was required for cross-examination, and did not attend the trial, I have attached limited weight to his evidence.
...
35. [Mr H] is a friend of the [appellant], and is strongly supportive of him. I accept that Mr [H] and his family shared a close relationship with the family during the marriage and saw each other between three to four times each year, between 2012 and 2018. He remains on close terms with the [appellant]. He has not had any contact with the children or the [respondent] since separation.
The primary judge was plainly aware of their affidavits. Nothing turns on the appellant’s complaint about the index.
This ground fails.
The primary judge erred in giving limited weight to the appellant’s witnesses but gave some weight to the supervisor’s report
We have already referred to the principles relating to weight challenges above.
Under this ground, the appellant contrasted the weight given to the affidavit of his witness Mrs H, with the author of the supervision reports. As extracted above, the primary judge gave limited weight to Mrs H’s evidence as the witness was not available for cross-examination. The author of the supervision reports had left the service provider and could not be found; she too could not be cross-examined.
There is an obvious difference between these witnesses. The appellant’s witness is partisan, whereas the author of the supervision reports is independent of the parties and worked in a professional capacity for a supervision service provider.
The primary judge’s approach to the Mrs H affidavit was entirely orthodox. Indeed, the primary judge would have been entitled to reject its reception into evidence. As for the author of the supervision report, the primary judge said this at [154]:
154. The individual supervisor no longer works for [supervision service], and as a result, the ICL was unable to issue a subpoena, for her to attend trial. While the [appellant] has raised a number of complaints and criticisms of the supervision report, it is independent evidence upon which I attach weight, acknowledging it was untested.
(Emphasis added)
Thus, the primary judge was well aware the reports were untested, but they were produced from a source independent of the parents. In those circumstances, it cannot be said that approach to or the findings arising from the reports were plainly wrong.
This ground fails.
The primary judge erred by not giving the appellant “control” over the children’s medication and education
In oral submissions, the appellant specifically said he should have control of X’s medication. X however has reached the age of majority and the primary judge had no jurisdiction to make any orders about him.
We gained little assistance about this ground in oral submissions or in the appellant’s Notice of Appeal. In his Summary of Argument, the appellant submitted:
8)Her honour erred by orders against my natural rights as a citizen and a father, No 6 & No 43 of Kioa v West [1985] HCA81.html & FAI Insurances v Winneke [1982] HCA26, severely avoiding me to influence education, health, recreation and mental development of my child.
(Summary of Argument filed 18 October 2023, paragraph 8)
The submission, respectfully, is misconceived for focusing on the appellant’s apparent rights. Rather, the primary judge focused on Y’s best interests and considered parental responsibility at [223]–[224]. It is clear the primary judge reached those decisions based on all of the findings that came before it.
We see no error in the primary judge dealing with parental responsibility as she did.
This ground fails.
The primary judge’s findings were not open on the evidence
As the appellant cited in his Notice of Appeal at paragraph 1.1:
1.1. …
35 A finding is open and hence immune from appellate challenge if it is either premised upon or permissibly inferred from foundational evidence (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307).
(Emphasis in original)
It is unclear which findings the appellant said were not open on the evidence. We did not gain much assistance with particulars for this ground from the Notice of Appeal, Summary of Argument or oral submissions.
Doing the best we can, the primary judge made findings from foundational evidence in both the property and parenting proceedings. The primary judge’s reasons are detailed and her chain of reasoning from evidence to findings is readily exposed.
We have already and will later refer to more specific complaints by the appellant in these reasons and will not repeat those here, for example the primary judge’s findings about family violence, harm, the child’s previous and current relationship with the appellant, the child’s views, the Balance Sheet and various challenges about weight.
This ground fails.
The primary judge erred in not allowing the appellant to cross-examine his own witness
We have earlier referred to the appellant’s complaint under the reasons concerning the Application in an Appeal.
What the primary judge did (not that the appellant provided the transcript) was entirely orthodox.
This ground fails.
The primary judge erred by not using the date of a separation in 2009 to strike the Balance Sheet
The reasons at [264]–[265] reveal the parties agreed on the values for most items on the Balance Sheet.
Yet, the appellant submitted the primary judge should have used a 2009 separation date to strike the Balance Sheet, even though the parties finally separated in 2018. The appellant said:
1.7.I personally only see one fair and legal scenario for consideration of cut-off date and calculating the family wealth and splitting, which is the last separation date of 13 July 2009 as the cut off date for financial splitting calculations. Back then the house’s mortgage was not paid in full yet...
(Notice of Appeal filed 21 September 2023, paragraph 1.7).
This would have the effect of: (a) excluding a property at Suburb L which the appellant bought post-separation and was only discovered through the cross-examination of a witness; (b) exclude any market increases in the value of the former matrimonial home at Suburb B; (c) include the mortgage secured against the Suburb B property even though it had long been discharged by time of trial; (d) ignore the fact that at and around separation, the appellant had taken over $350,000 for his unilateral benefit and without plausible or reliable explanation (at [255]–[261]); and, (e) deflect attention from the appellant’s lack of financial disclosure.
Excluding, say, the Suburb L property would have offended s 79 of the Act which provides for making orders with respect to the property of the parties to the marriage “or either of them”:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them —altering the interests of the parties to the marriage in the property; or…
(Emphasis added)
The appellant demonstrated his self-interested calculations of using earlier values and excluding the Suburb L property as follows:
1.7.…The house evaluation done for the family court trial rated the house at $620k. There was nothing else to be added calculations as the other party agreed to split without selling, also the two vehicles, which the other party agreed to take one. So, the total asset would be less that the house value, and 50% of that $620 would be around $310k, whilst there are costs that I would like to be looked at, which would be reducing the other party’s entitlement. Bearing in mind that she walked into my life with nothing but two suitcases of her clothing and refused to work for income, assisted me with cooking and cleaning at some level and constantly fought me over saving plans to pay off the mortgage, asking for furniture to be replaced every few years, just like her father.
The worst and unfair cutoff date that anyone could think of in their wildest dreams, even lawyers, was using the day that I was removed from the house by false allegations as the cut-off date for financial splitting calculations. By then the house mortgage was paid off and I had around $350K savings. 50% of all that would be around $450K.
(Notice of Appeal filed 21 September 2023, paragraph 1.7).
Had the primary judge used the appellant’s asserted values nine years before the parties separated, then she would have been led into appellable error by the appellant. Instead, the primary judge used values closest to trial, which is entirely consistent with authorities such as Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39]:
39.… That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing…
(Emphasis added)
That is what the primary judge did. The primary judge determined the joint net assets and superannuation entitlements to be $979,746 and divided them 65 per cent to the respondent and 35 per cent to the appellant. The primary judge included the Suburb L property and its mortgage.
The appellant also agitated that the costs of proceedings in Country C and a whole host of expenditure during the relationship and other costs ought have been brought to account. His Minute of Order for trial had several pages devoted to many items and calculations that he wanted the primary judge to allocate between the parties. For example at [242]–[243]:
242. …
• $140,040 which he calculated as a "debt to my mother due to expenses after age of 18 until I worked to become financially independent. 8 years (yearly cost of living for a person $17,505 as per Australian statistics.”
• $72,800 as another debt to his mother "due to unpaid rent in [Country C]" asserting the property had been occupied by the family for 14 years, from 1988 to 2002.
• $50,000 for "Direct loss of income due to travel ban imposed by magistrate […] (sic) from December 2019 for one year. Loss of future opportunities unknown".
• An unquantified amount for the "mental stress on me and my relatives and friends for not seeing my children and disturbance and suffering since leaving the house in Oct 2018 due to false allegations for 4 years and beyond to present myself in two courts".
• $28,000 for "providing 7 years of education for [the respondent] without any return to the family".
• Reimbursement of various expenses met on behalf of the mother during the marriage.
• $30,000 for the "cost of my 2 future travels to [Country C] for filing the divorce application…once to commence the process and a second travel to finalise the legal process. Loss of income unknown!".
• $402,615 for the "economic cost of raising children whom apparently I have no right to protect $17,505 per year".
243.With respect to the [appellant], they are not orders which the Court can make by way of alteration of property interests.
We agree. It has long been the case that the Court will not conduct an audit on how the parties lived their financial lives when together (Mayne v Mayne (2011) FLC 93-479 at [78] per May J). It is also not for this Court to conduct something analogous to a personal injuries’ claim for compensation when engaging with s 79 of the Act (Douglas and Douglas (2006) FLC 93-300 at [43] per Warnick J with whom Finn and May JJ agreed).
This ground fails.
The primary judge erred in giving too much weight to some evidence and not enough on other evidence
This ground is primarily a repeat of what the appellant said about his unavailable witness, and, the supervision report author who could not be found. We have already dealt with that.
Ground 3.4 in the Notice of Appeal said, “There’s no evidence supporting Y being harmed by meeting me”. An argument was then developed, some of which touches on weight:
[The primary judge] repeatedly erred in giving weight to the court’s instruments statements, as self representation and providing facts are my legal rights and exercising my legal rights isn’t supposed to be considered as being in conflict or negative, but a challenge to the false narratives. My defense is not supposed to be misused by the court’s instruments to gather there’s a conflict, for then misuse it for calling it a risk to the children, and for keeping the children away from one side of the family.
(As per original) (Notice of Appeal filed 21 September 2023, p.33)
We cannot discern what the complaint is, much less how this submission supported a ground of appeal with any specificity.
This ground fails.
The primary judge acted on wrong principle by the children being involved in the proceedings and thereby causing them distress
The appellant submitted in oral submissions that it was wrong and stressful to the children by them being involved in the proceedings. In his Summary of Argument he said:
38)EVIDENCE ACT 1995 “Sect 13: a person is not competent to give evidence about a fact if, for any reason (including intellectual disability”. Her honour erred allowing my child to be interviewed, where I disagreed at all times, and there was not reasonable cause nor facts for investigations. This has been against the child’s psychology and act of duress Para 30 of Thorne v Kennedy [2017] HCA 49.
(As per the original) (Summary of Argument filed 18 October 2023, paragraph 38)
Y was not giving evidence; s 13 of the Evidence Act 1995 (Cth) has no application. Rather, her views were ascertained and reported to the Court via the evidence of the Family Consultant, the Single Expert Witness, the ICL’s solicitor and the Family Therapist.
Australia is a signatory to the United Nations Convention on the Rights of the Child (1989), wherein a key principle is the right of a child to have their voice heard. The tenets of the Convention find their way into the Act, by requiring the Court to consider “any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views” (s 60CC(3)(a) of the Act). Other provisions of the Act also speak to the Court hearing the voices of children, for example, ss 60CD, 62G, 68L(5) and 68LA(5)(b).
The ICL did as usually occurs – spoke to the children and told the Court their views. That was a matter for the ICL’s professional judgment. The ICL had an employee attend that discussion, file an affidavit and the appellant cross-examined her. The ICL speaking to the children does not impugn the primary judge’s orders or reasons in any way.
As for distress, the preponderance of evidence before the Court, which the primary judge accepted, was that Y’s distress did not come from having a voice in the proceedings, but from “spending time with the [appellant], including the suggestion of spending supervised time with him” (at [213]).
Y needed to have a voice, whatever it might have been. It would have been an appellable error for the primary judge to not consider her views.
This ground fails.
The primary judge should have found the respondent acted with animus towards to the appellant
The primary judge found there was a high level of animosity between the parties and each parent had a poor view of the other.
Even if the primary judge elevated the respondent’s views of and conduct towards the appellant as animus, it is not clear how that would have caused a different outcome in the circumstances of this case.
This ground fails.
The end result of the children having no contact with the appellant was plainly unreasonable
Undoubtedly, the appellant thinks, from his perspective, that the no contact orders were plainly unjust. However, that is about him. What the primary judge did – and was required to do – was to make a decision about what was in Y’s best interests.
We have already referred to the findings made by the primary judge about harm to Y, and the balancing act she undertook to determine that the risk of harm posed by the appellant outweighed her having a meaningful relationship with him. Appropriately, the primary judge took the relevant additional considerations into account, including but not limited to Y’s clear views about not seeing the appellant, the appellant’s lack of capacity to meet her psychological and emotional needs (see for example, at [212]), and his poor attitude to the respondent. The primary judge had “no confidence” the appellant would shield Y from his views (at [217]).
“Plainly unreasonable” will cover decisions which, by reference to the scope and purpose of the statutory power, may be described as “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” and “obviously disproportionate” (Minister for Immigration and BorderProtection v Eden (2016) 240 FCR 158 at [65]).
We have no doubt the appellant would use all of those descriptors for the orders made and reasons given, but again, that is from his perspective. Conversely, on the totality of the evidence before the primary judge it is hard to see any other outcome in the matter. Accordingly, it cannot be said the orders are plainly unreasonable from the required perspective of the best interests of the child.
This ground fails.
The primary judge gave insufficient weight to the proceedings in the Magistrates Court
We have previously detailed that weight challenges are hard to make out. In his Summary of Argument, the appellant submitted:
34) …Her honour erred in not accepting the Magistrates court’s results, transcripts and orders.
(As per the original) (Summary of Argument filed 18 October 2023, paragraph 34)
The primary judge was aware of the earlier proceedings and that, “[t]he presiding Magistrate determined it was proper to make a FVRO in favour of each parent, but did not include the children” (at [115]). Further, the primary judge did not accept the respondent’s allegations in that court about financial abuse.
Section 69ZX(3) of the Act gives a judge wide latitude with respect to evidence in and orders of other courts. But the best interests of the child remain the paramount consideration.
This ground misunderstands the trial process and the different tests that apply in the Magistrates Court, as opposed to the Family Court. Similarly, if the primary judge, a judicial officer of a superior court of record, had slavishly followed the Magistrate’s “results” and orders, then that may itself have been an appellable error.
This ground fails.
The primary judge failed to mention the respondent’s other relationships and her attitude to the appellant
The appellant submitted that the primary judge:
57) …made error of the law to consider the trial date as the financial settlement date on the ground of the marriage was void years prior by fidelity and record of Centrelink shown in index #14 of my affidavit. Besides: MARRIAGE ACT 1961 - SECT 23B “Grounds on which marriages are void (1) (b) the parties are within a prohibited relationship”.
(Emphasis in original) (Summary of Argument filed 18 October 2023, paragraph 57)
We have earlier noted that, since 1975, Australia has had a no-fault separation system. Whether the respondent had relationships outside her marriage to the appellant is irrelevant. “Infidelity” does not render marriages void in Australia. Having a relationship outside of marriage (irrespective of whether the respondent actually did in this matter) does not constitute a prohibited relationship under the Marriage Act 1961 (Cth).
The primary judge was clear about the respondent’s attitude to the appellant, finding animosity between the two parents and a lack of trust.
This ground fails.
The primary judge may have had an ideology
On one view, perhaps the appellant raises this as a claim of bias. However, the appeal grounds do not raise any such complaint, nor did the appellant make any application over the eight days of trial for the primary judge to recuse herself.
In his Notice of Appeal and Summary of Argument, the appellant also made subjective commentary about the media and men as family violence aggressors. None of this impugns the primary judge’s chain of reasoning.
This ground fails.
DNA testing
Whilst not a ground articulated before us in oral submissions, it is clear the appellant is agitated about the child’s paternity. He sought an order at trial for paternity testing (and for the child to live with him) and complained in his Summary of Argument that the order was not made:
4)Her honour erred disallowing DNA testing of me and my child. This is very important to me if I’m given zero contact and my legal right. Otherwise, paying child support is not justified.
(Summary of Argument filed 18 October 2023, paragraph 4)
The primary judge dealt with the matter in this way at [193]:
193. …
…
• Despite the [appellant’s] proposals for [Y] to live with him, the [appellant] questions whether he is [Y’s] father, and seeks an order for paternity testing. In light of the difficulties in [Y’s] relationship with the [appellant], if [Y] were aware that the [appellant] questions her paternity, that is likely to further damage their relationship. It also has the potential to cause [Y] further distress. I accept Mr [J’s] evidence, that the [appellant’s] request for such testing, demonstrates a lack of insight into [Y’s] needs.
Whilst the appellant concentrated on why paternity testing was important to him, the primary judge took a child focused approach explaining simply and clearly why she would not make such an order.
We cannot see any error in the approach taken by the primary judge.
Even though the appellant’s complaint about DNA testing is not articulated in the Notice of Appeal, we have included observations about it for the appellant’s benefit.
DISPOSITION
The appellant has not made good on any of his grounds and the appeal will be dismissed.
COSTS
If the appeal failed, the respondent sought her costs and filed a schedule of costs totalling $22,000, with $13,200 attributed to counsel’s work and $8,800 attributed to her lawyer’s work. The ICL did not seek costs.
The appellant opposed a costs order being made against him if the appeal was dismissed. He made submissions that he should “not pay anything” and the “law needs to be available to everybody”. As to the quantum, he submitted that $22,000 “does not benefit the children”.
As the appellant has been wholly unsuccessful (s 117(2A)(e)), the respondent will have her costs. The evidence before this Court is that the appellant earns $150,000 per year and was able to purchase the property at Suburb L. Even if his financial circumstances have changed, impecuniosity or poor financial circumstances is no bar to an award of costs being made (D & D (Costs) No 2 (2010) FLC 93-435).
We will fix the costs at $20,000 which is a slight discount on what was sought, but we take account of the legal representatives' involvement in the matter at trial and therefore familiarity with the subject matter.
We will set the timing for payment at 60 days, which is long enough for the appellant to cash flow the amount, but not so long as to practically deprive the respondent of her costs.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Howard, Brasch. Associate:
Dated: 8 December 2023
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