Avila & Hardin
[2023] FedCFamC1A 185
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Avila & Hardin [2023] FedCFamC1A 185
Appeal from: Hardin & Avila [2023] FedCFamC2F 740 Appeal number(s): NAA 207 of 2023 File number(s): SYC 4374 of 2021 Judgment of: ALDRIDGE J Date of judgment: 20 October 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file the digital transcript within time as required – Where the applicant seeks reinstatement of the appeal and relief in relation to the transcript – Delay in bringing the application – Proposed appeal has no reasonable prospects of success – No adequate explanation for the delay given – Not in the interests of justice to reinstate the appeal – Application dismissed. Legislation: Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 69ZT
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
United Nations Convention on the Rights of the Child
Cases cited: De Winter and De Winter (1979) FLC 90-605
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Number of paragraphs: 28 Date of hearing: 20 October 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Petrie Solicitor for the Respondent: Pigdon Norgate Family Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW
(Filed Submitting Notice on 21 August 2023)ORDERS
NAA 207 of 2023
SYC 4374 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR AVILA
Applicant
AND: MS HARDIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
20 OCTOBER 2023
UPON the Application in an Appeal filed on 17 October 2023 AND UPON HEARING Mr Avila and Ms Petrie, counsel for the respondent
IT IS ORDERED THAT:
1.The Application in an Appeal filed 17 October 2023 is dismissed.
2.The applicant pay the respondent’s costs fixed in the sum of $4,936.80 with payment deferred until the finalisation of the parties’ property proceedings.
BY THE COURT
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Avila & Hardin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J
This is an Application in an Appeal for reinstatement of an appeal that has been deemed to be abandoned and, if granted, provision of the transcript in an appeal against parenting orders made by a judge of the Federal Circuit Court and Family Court of Australia (Division 2) on 11 July 2023. The parties have three children who were born in 2006, 2009 and 2014. The eldest child identifies as male, the middle child has an obsessive compulsive disorder, and the youngest child identifies as non-binary. Each of the children has the assistance of a number of health care professionals.
At the time of the hearing the children were living with the applicant father, Mr Avila (“the father”). The orders made by the primary judge were that the parties have equal shared parental responsibility for the eldest child, but the mother, Ms Hardin (“the mother”) have sole parental responsibility for the two younger children. The two younger children were to live with the mother, and indeed there was a moratorium on them spending time with the father for four months after which they are to resume spending time with him. The eldest child was to live with the mother and the father in accordance with his wishes.
For the purpose of this application it is important to note some key dates. As already said, the orders were made on 11 July 2023. The father filed a Notice of Appeal on 8 August 2023. A procedural hearing was conducted by an appeals registrar on 25 August 2023 where the matter was listed for hearing on 3 November 2023.
As part of the directions made by the appeals registrar, the father was to file and serve the transcript of the hearing on or before 22 September 2023. That order was not complied with and pursuant to r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the appeal was deemed to be abandoned.
On 17 October 2023 the present application was filed.
Two other relevant dates to note are 12 September 2023 when the father wrote a long, detailed letter to the solicitors for the mother seeking consent to him contacting the appeal registrar to seek an extension of time in which to file the transcript and asking for the immediate release of $30,000 to him for a number of purposes. I note here that the property issues between the parties await resolution and pending that resolution there are funds being held in a controlled monies account on their behalf. The release of the $30,000 was sought in part to order the digital transcript at a cost of $10,000, with another $4,000 towards enabling him to vacate his current business and residential premises and $16,000 towards a bond and three months rent on new premises. By a letter the following day, the solicitors for the mother agreed to a release of $10,000 to obtain the transcript and enclosed consent orders to give effect to that agreement. The father says he did not receive that letter, but even so, he did not chase the matter up to pursue the release of funds or seek an extension of time as he foreshadowed.
In order to understand the grounds of appeal, it is necessary briefly to refer to the primary judge’s reasons. At [137]–[221] the primary judge addressed the s 60CC factors of the Family Law Act 1975 (Cth) (“Family Law Act”), making conclusions as to each matter as it was discussed. The father takes issue with some of those conclusions. At [197]–[198] the primary judge indicated there is no evidence before the court to support the father’s various assertions that the maternal family posed a risk to the children or that their actions were extremely dangerous. The father agreed before me that there was no evidence the maternal family posed a risk of harm and said the reason for that was that his evidence to that effect had been removed from his affidavit by his lawyers.
At [222]–[224] the primary judge discussed and determined the issue of parental responsibility. The primary judge then, over a number of paragraphs, specifically identified what her Honour considered to be the strengths and weaknesses of each parenting proposal put before the Court, noting at [248] it was a finely balanced case. Her Honour then identified at [251] the particular matters to which she attached greatest weight.
I note that as far as I can see, none of the grounds of appeal challenge any part of the primary judge’s reasoning following from [197].
The father offers as explanation for the delay that he was not able to function, in large part due to becoming aware of a report of the proceedings in a widely circulated newspaper, albeit in an anonymised form but nonetheless detailing very significant factual matters from the proceedings which was published on 20 August 2023, though it seems he learnt about it some days later. He then also became aware of a discussion of that matter and issues of gender dysphoria generally on a commercial radio station. The publication of the discussion was certainly, from the father’s point of view, most unfortunate but nonetheless he was still able to attend the directions hearing and write the letter to which I have already referred.
Much of the submissions made to me by both sides, but particularly by the father, focused on what was said to be the merits or otherwise of the appeal. The Notice of Appeal is somewhat difficult to follow. On one view there are 53 grounds, but the father said he identified 73 grounds due to the extensive errors made by the primary judge. However as accepted by the father in the submissions, the Notice of Appeal is discursive in nature and often very generalised. Indeed he said he intends, in due course, to produce an Amended Notice of Appeal but has not done so yet.
It is then necessary to consider the document on which he relies. It has to be said that a number of the so-called grounds of appeal are simply not competent grounds of appeal at all. For example, Ground 1 is headed “error of discretion” but the accompanying text makes it plain that the complaint is that the primary judge “ought to have applied far greater scrutiny and discretionary powers than was applied”. That simply does not identify appealable error. As another example, Ground 15 simply asserts “errors of evidence” in that evidence was “supressed, redacted, distorted and/or falsified, in breach of the Evidence Act 1995” (as per the original). Again, that does not identify a specific error.
I might add that many of the views expressed in submissions as to the effect of the Evidence Act 1995 (Cth) (“Evidence Act”) do not accord with my understanding of its provisions and need to be looked at with some care as not all of the provisions of the Evidence Act apply to parenting cases (see s 69ZT of the Family Law Act).
The judgment the subject of this application was discretionary. The principles to be applied when considering an appeal from such a judgment are set out by the High Court in House v The King (1936) 55 CLR 499 at 504–505:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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. …
It follows from that that errors of fact may suffice to ground a successful appeal, but only if that error is material to the outcome (De Winter and De Winter (1979) FLC 90-605).
The errors asserted by the father in the Notice of Appeal are either trivial or so broadly stated as to lack meaning and thereby fail to identify error. I will not deal with each ground of appeal, some examples will suffice.
In Ground 4, the error seems to be that the primary judge, in the course of her reasons, said that Ms TT “sought to refer” the middle child to a psychiatrist. Ms TT was, but is no longer, the treating psychologist for the middle child. The point made by the father is that Ms TT could not, as a matter of law, practice and propriety, refer a patient to a psychiatrist. Even if that proposition is correct, that necessarily does not identify error because, for example, Ms TT might have sought to refer the middle child notwithstanding her obligations. However, even if there be an error, it is impossible to see how that error could bear upon the appropriate orders for the care of the children, namely the orders that were in their best interest. The point entirely escapes me. In any event, the complaint is not soundly based because her Honour went on to say the referral to the psychiatrist was in fact made by a family member because Ms TT could not do so. Of course, the father complains extensively about that referral, but again I do not see how that points to error and what orders are in the best interests of the children.
Many of the grounds assert error simply on the basis that the father’s case or contention was not accepted (see for example Grounds 10, 16, 33 and 34). Merely accepting or rejecting one party’s case or contention does not identify error. Indeed it is the essential task of a judge to choose between competing factual scenarios and contentions.
Many of the grounds are simply an unspecified attack on the Independent Children’s Lawyer and his or her independence, the primary judge’s lack of diligence and scrutiny, the incompetence of counsel and solicitors for the father, and the incompetence and mendacity of the single expert. These complaints are broadly based. The father said repeatedly in submissions that his counsel and solicitors refused to follow his instructions and that he was told by them how to run his case. Of course, lawyers acting for a party, and particularly counsel, are not mere mouthpieces for their client. They have an overriding duty to the court in the manner in which they conduct proceedings. There is no material before me that permits me to express a view on their competence or the propriety of their conduct. Merely because the father says it is so does not make it so.
Some of the grounds are misguided in that they assert breaches of the United Nations Convention on the Rights of the Child (“the Convention”) and the Disability Discrimination Act 1992 (Cth) (“Disability Discrimination Act”). Australia’s obligations under the Convention, so far as they are relevant to this matter, are given effect to in the various provisions of the Family Law Act. Its provisions are not overridden by the Disability Discrimination Act. Indeed the Family Law Act directs the court to make orders that are in the best interests of the children regardless of what disabilities their parents might have.
Importantly to my mind, as I have said, none of the grounds appear to challenge the essential reasoning of the primary judge at [222]–[251].
Applications for reinstatement are governed by the general principles set out in Gallo v Dawson (1990) 93 ALR 479. The two general matters that a court takes into account, although it will take into account any relevant matter, are usually an explanation for the delay or non-compliance and the merit of the appeal. Ultimately the question is what order is in the interests of justice.
In Jackamarra v Krakouer (1998) 195 CLR 516 the High Court pointed out that, generally speaking, procedural missteps should not terminate an appeal that has been regularly commenced. However, it was added that if an appeal has no prospects of success it would be futile to reinstate it as the running of a futile appeal is not in the interests of justice.
Ordinarily some care must be taken when assessing the merit of an appeal at an early stage before the relevant material is available. Here I have the benefit of the Appeal Book which I have read, though not of course the transcript.
I am not satisfied that the father has given an adequate explanation for his failure to supply the transcript in light of the agreement with the mother’s solicitors about the provision of funds enabling him to do so, or for delaying a number of weeks and then bringing this application. Whilst he said he had difficulty functioning, which may be accepted to some degree, he has been in the course of treatment which has identified his condition more precisely and he is now being treated effectively. There was no evidence to that effect from the person providing that assistance or to say that during any of the relevant times he was unable whatsoever to attend to his affairs. He was able, as I said, to write to the mother’s solicitors.
Further, I am not satisfied that any of the grounds of appeal have any prospects of success, even taking into account all that has been said to expand each ground in the Notice of Appeal, the father’s affidavit and the father’s submissions today.
Justice is a two way street. The mother’s evidence establishes that she now has the primary care of all three children. It would not be just for her to have to bear the burden of an appeal, either financially or psychologically, which is doomed to fail. It also cannot be that further litigation over the parenting orders for the children would be in their best interests.
Having regard to these matters, I am not persuaded that it is in the interests of justice to reinstate the appeal. The application is dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 27 October 2023
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