BAKAHSH & BAKAHSH
[2013] FamCAFC 122
FAMILY COURT OF AUSTRALIA
| BAKAHSH & BAKAHSH | [2013] FamCAFC 122 |
| FAMILY LAW ─ APPEAL ─ CHILDREN – PROPERTY – Where the father appealed against parenting and property orders of the Federal Magistrate – Where the father’s principal complaint was that he was denied procedural fairness by the Federal Magistrate regarding the Federal Magistrate’s treatment of the affidavits of members of the father’s family, an affidavit of the father, the availability of the father’s new partner to give evidence, and the late availability of a second expert report and the Federal Magistrate’s apparent refusal to grant an adjournment because of the late availability of that report – Where the father also alleged “bias” which the Full Court considered in the context of the father’s procedural fairness complaints – Where consideration of the transcript of the hearing before the Federal Magistrate revealed that the father was not afforded procedural fairness – Appeal allowed – Remitted for re-hearing. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act1981 (Cth) |
| Stead v State Government Insurance Commission (1986) 161 CLR 141 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Bakahsh |
| RESPONDENT: | Ms Bakahsh |
| APPEAL NUMBER: | EA | 93 | of | 2011 |
| FILE NUMBER: | PAC | 5135 | of | 2009 |
| DATE DELIVERED: | 19 August 2013 |
| PLACE DELIVERED: | Sydney |
| HEARING DATE: | 8 February 2013 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Ainslie-Wallace & Stevenson JJ |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 July 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1042 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Bakahsh in person |
| FOR THE RESPONDENT: | Ms Bakahsh in person |
Orders
The appeal against the orders made by Federal Magistrate Henderson (as she then was) on 13 July 2011 be allowed.
The orders made by Federal Magistrate Henderson (as she then was) on 13 July 2011 be set aside.
The proceedings be remitted to the Federal Circuit Court for re-hearing before a Judge other than Judge Henderson.
Pending further order:
(a)The Children A Bakahsh born 1997, B Bakahsh born 1998, C Bakahsh born 1999, D Bakahsh born 2003, and E Bakahsh born 2007 live with the Mother.
(b) The Mother have sole parental responsibility for the Children.
(c) The children spend no time with the father.
(d)The Father is injuncted and restrained from approaching the Children’s home, place of extra curricular activity or school or place of education that they may attend from time to time.
There be no order for costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakahsh & Bakahsh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 93 of 2011
File Number: PAC 5135 of 2009
| Mr Bakahsh |
Appellant
And
| Ms Bakahsh |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Bakahsh (“the father”) against orders made by Henderson FM (as she then was) in property and children’s proceedings between the father and Ms Bakahsh (“the mother”) on 13 July 2011. The mother opposes the appeal and seeks to maintain the Federal Magistrate’s orders.
Both the father and mother appeared for themselves at the hearing of the appeal.
The mother attended the hearing by telephone and the proceedings were interpreted for her by an interpreter who was in the courtroom.
The father had prepared and filed appeal books in the appeal and had served those together with a further amended notice of appeal on the mother’s former solicitor. The mother indicated to the Appeals Registrar some time before the hearing of the appeal that she did not intend to file a summary of argument or list of authorities. At the hearing before us, the mother said that she had received neither the appeal books nor the further amended notice of appeal.
To ensure that the mother was not disadvantaged, we ordered that a transcript of the appeal hearing be taken out at the court’s expense and copies of the appeal books be obtained and delivered to her. We directed that any submissions she wished to make in addition to her submissions made at the hearing of the appeal be given in writing within 14 days of receiving those documents. No submissions have been received from the mother.
We observe that while the mother was assisted by an interpreter in these appeal proceedings and required him to interpret every word said in the appeal hearing, in the hearing before the Federal Magistrate she was represented by a solicitor and gave her evidence and was cross-examined in English without the assistance of an interpreter. Our reading of the transcript does not reveal any request by her or on her behalf for the assistance of an interpreter or any apparent difficulty in understanding English.
Given that the mother had not received the father’s further amended notice of appeal, we confined the appeal to the amended notice of appeal filed by him on 15 November 2011 and which the mother said she had received.
Background
The father (who had been living in Australia since he was a child) and mother married in 1995 in Lebanon and the mother moved to Australia in that year. They separated in October 2009. They have five children, A (born
in 1997), B (born in 1998), C (born in 1999), D (born in 2003) and E (born in 2005).
After separation the children variously moved between both parents (as is explained by the Federal Magistrate at [27] to [52] of her reasons.) By the time the matter came on for hearing before the Federal Magistrate in May 2011 they had moved to live with the mother. The circumstances behind the change of residence are not without controversy. Both parties had sought and obtained domestic violence orders against the other and each had complained to the police about the other.
By the time the matter came on for hearing before the Federal Magistrate, the father had formed another relationship and had moved to live in Melbourne with his partner, Ms N and her daughter.
Although both parties had sought orders that the children live with him or her, at the commencement of the hearing the position had changed. The father conceded that the children should live with the mother and she should have sole parental responsibility. The issues to be determined by the Federal Magistrate were: how much time the father would spend with the children and whether any time spent with the children would be subject to their wishes; whether the Federal Magistrate would make an injunction restraining the father from going to the children’s schools or places of extra curricular activities; and the property settlement.
As to the parenting proceedings, the Federal Magistrate made orders that all children live with the mother, and that she have sole parental responsibility for them. The Federal Magistrate enjoined the father from approaching the children’s home, place of extra curricular activity or place of education. Her Honour made no order that the children spend time with him.
So far as the property proceedings are concerned, at the time of the hearing before the Federal Magistrate, the parties’ home had been sold and the proceeds, about $152,274, were held in an account pending resolution of the proceedings. The father was a member of a superannuation fund and had an interest of $55,000 at the date of hearing. Money drawn down by the father from the mortgage over the property after separation was notionally added back to the pool of assets for division between the parties. The Federal Magistrate found that the pool of assets for division between the parties was $317,334. Her Honour ordered the mother to have 72 per cent of that pool, amounting to $228,650. Her Honour further gave the mother leave to reopen the case and seek further orders if the father is successful in his proposed wrongful dismissal suit against his previous employer.
The Federal Magistrate’s reasons for judgment
The Federal Magistrate observed early in her reasons that while initially, the issue between the parties had concerned with whom the children would live, that issue had been resolved. Her Honour said:
6.The competing applications for “live with” orders had effectively resolved by the date of the final hearing. The Father conceded at the commencement of the hearing that the children will be living with their Mother. He conceded sole parental responsibility to the Mother, that changeover take place at [a] Police Station, that the Airport Watch List order be maintained, the parents would not denigrate either parent in front of the children and stop other people so doing, the parents were not to discuss the court proceedings with the children and each were injuncted and restrained from physically disciplining the children. Ultimately orders were made by consent in those terms.
We note that the appeal book contains an engrossment of orders stated to have been made on 16 May 2011 (which was the first day of the trial) and which contain an order stated to be made by consent providing that the children should live with the mother. However, we also note that in the engrossment of the orders made on 13 July 2011 which gave effect to her Honour’s reasons delivered on that day, the order for the children to live with the mother is not stated to be made by consent.
The Federal Magistrate then identified in [7] the remaining issues for determination, being: whether the time the children spent with the father was to be in accordance with their wishes and whether the father should be restrained from approaching their school and where they had extracurricular activities or educational activities. Her Honour observed at [7] - [8] that the father sought orders that the children spend time with him by agreement once per month. He also wished to be able to approach their schools and be involved in their education.
In identifying the evidence before her, the Federal Magistrate referred to the expert report of Dr W who had prepared two reports, the first on 19 July 2010 and an updated report of 16 May 2011. Her Honour said:
21.The Father did not attend at the second interview with Dr [W] and the children were seen with their Mother only. This was despite the Father having been advised to attend by Dr [W]’s office, as well as by the Independent Children’s Lawyer. Part of the Father’s failure to attend may have been his move to Melbourne and his refusal to tell the Court or any one else his new address. The Father was however well aware an updated report had been ordered due the children’s return to their Mother’s care and he did not make any enquiries when this was likely to occur.
Her Honour made extensive reference to the reports of Dr W, concluding:
127.In Dr [W]’s opinion it was not enough protection for the boys that they spend time with their Dad in accordance with their wishes. Contact with him needs to be suspended.
128.With such clear and cogent evidence from an Expert of many years experience the question for me is really, what is the benefit to these boys of having a relationship with their Father, or is to do so perpetrating further harm upon them?
129.Dr [W] said it was inconceivable the Father could change sufficiently to allow the children to forgive him for his past treatment of them. Dr [W] repeated on many occasions he believed the boys were abused by their Father physically and emotionally and that he and his partner are a significant risk to them.
As is apparent, the Federal Magistrate had the benefit of two reports from the appointed expert. For the purposes of this appeal, it is unnecessary for us to make extensive reference to them other than to observe that the second report was based on interview only with the mother and the children and did not include the father or his partner, Ms N. Why the father was not interviewed is contentious but it is not necessary to resolve that here. We observe that it was in the second, updating report of the expert that an issue about the father’s partner arose. Dr W noted complaints about the father’s partner made by the children, such that she would not let them eat, that child A had to move out of his room to give accommodation to Ms N’s daughter and that the children were not allowed to open the refrigerator after 8:00 pm.
The Federal Magistrate concluded:
141.The Father has no capacity to promote the best interests of the children either educationally, psychologically or emotionally. He is fixated and focussed on himself, his own needs and nothing else.
142.
I find the Father and his partner to be a danger to the children.
Dr [W] was clear in his condemnation of Mr [Bakahsh] and that he is a risk to the children. In those circumstances I would be derelict in my obligation and duty to these children to protect them from harm if I made any order for them to spend time with him. When the children are grown they may decide that issue for themselves.
...
144.Having found that there is no benefit to the children spending any time with their Father, rather a significant risk of harm to them if they do, I agree with the parents’ decision to rebut the presumption of equal shared parental responsibility. The Father lives in Melbourne. He has no interest in the children. He will make life as difficult as he can for the Mother, as he has always done. These children need decisions to be made quickly and in their best interests. It is not practical or realistic that the parents can share responsibilities.
Because, for reasons which will later emerge, we will not determine the appeal against the property orders, we need only here refer to what has already been said in [13] concerning the Federal Magistrate’s decision in relation to property matters.
The orders made at trial are as follows:
(1)That the Children [A. Bakahsh] born … 1997, [B. Bakahsh] born … 1998, [C. Bakahsh] born … 1999, [D. Bakahsh] born … 2003, and [E. Bakahsh] born … 2007 live with the Mother
(2)That the Mother has sole parental responsibility for the Children.
(3)Discharge all or any previous orders made for the Children to spend time with the Father.
(4)The Father is injuncted and restrained from approaching the Children’s home, place of extra curricular activity or school or place of education that they may attend from time to time.
(5)The parties pay the cost of Dr [W]’s updating report and court attendance in the sum of $2,200, such payment to be made from funds held in trust on behalf of the parties by the Mother’s solicitors, [law firm L], thereafter the Mother be entitled to the proceeds of that trust account.
(6)The Husband is to repay to the Wife the sum of $1,100, being his one half share of Dr [W]’s report, such sum to be paid within
28 days of today’s date.(7)Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
(8)That all principal and interest of the surplus of funds paid into the NSW Supreme Court by way of Summons following the sale of the former matrimonial home at … in the State of New South Wales be distributed to the Wife entirely.
(9)That the Wife be entitled to the entirety of the monies standing in [law firm L’s] Trust Account.
(10)That a base amount of $55,000 out of the Husband’s interest in the [Superannuation Fund F] be allocated to the Wife.
(11)Pursuant to Section 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable from the interest of the Husband in the fund, the Trustee shall pay to the Wife all her executors, administrators, beneficiaries, assigns or heirs the entitlement calculated in accordance with Part 6 of the Family Law Superannuation Regulations and there shall be a corresponding reduction in the entitlement the Husband would otherwise have held in that fund but for these orders.
(12)This order binds the Trustee of the [Superannuation Fund F]
(13)That the Wife be permitted to sign in the name of the Husband all documents necessary to transfer the Ford Falcon motor vehicle currently registered in his name to her absolute, thereafter the Husband and Wife be entitled all assets in their name.
(14)In the event the Wife forms a view that the Husband has received monies pursuant to a claim by him for unfair dismissal the Wife has liberty to reopen these property proceedings and such application shall be listed before Federal Magistrate Henderson as soon as is possible.
(15)All outstanding applications are dismissed and the proceedings removed from the list of cases awaiting hearing.
The appeal
The father’s amended notice of appeal raises nine grounds of appeal in challenge to the Federal Magistrate’s decision. He contends a further four grounds to support leave to appeal. This is an appeal brought as of right and the father does not need leave to appeal; however we will treat the four grounds asserted in relation to the leave issue as being grounds of appeal, although in respect of some of the leave grounds they are repeated in the grounds of appeal.
It is fair to say that the principal complaint which emerges from the father’s grounds of appeal (or grounds seeking leave to appeal) is that he was denied procedural fairness by the Federal Magistrate, particularly in relation to the following four matters:
1.her Honour’s refusal to consider the affidavits of various members of his family;
2.her Honour’s refusal to consider his own affidavit of 12 May 2011 in which he had conceded that the children should live with the mother;
3.her Honour’s criticism of the fact that the father’s new partner was not available to give evidence and her Honour’s apparent unwillingness to permit arrangements to be made for that lady to give evidence; and
4.the late availability of the second report of the expert,
Dr W (on which her Honour ultimately placed substantial weight) and her Honour’s apparent refusal to grant the father an adjournment because of the late availability of that report.
We can say at this stage that we agree with the father’s complaints that he was denied procedural fairness in relation to each of these matters. We accept that it is not every breach of the rules of procedural fairness which will justify appellate interference (Stead v State Government Insurance Commission (1986) 161 CLR 141). However, as will be seen when we consider the grounds of appeal which raise procedural fairness issues, and particularly when regard is had to the passages of transcript on which the father relies in support of these grounds, the overall interests of justice require that we should not permit her Honour’s orders to stand, and that the entire proceedings between the parties should be re-heard by another Judge.
In one of his grounds seeking leave to appeal (Leave Ground 2) the father also claimed that there had been “bias” against him, apparently because of the “rejection” of his affidavit, although his written summary of argument ([89]) suggests that there may be wider grounds for making a claim of “bias”. But however that may be, and particularly having regard to what can be termed the technicalities involved in establishing a claim of “bias” in the strict legal sense, we consider that the allegations of “bias” can best be considered in the context of the father’s complaints about procedural fairness.
The father’s amended notice of appeal states that he only appeals Order 4 (being the injunction restraining him from approaching the children’s home, school, or place of extra-curricular activity) and Orders 8, 9 and 10 (which provide for the monies and superannuation interest which the mother is to receive by way of property settlement). However, given the basis on which we are allowing the appeal (being a range of instances of significant procedural unfairness to the father), we consider we must set aside all orders made by her Honour. But we make it very clear that that approach by us does not prevent the parties reaching agreement between themselves to re-instate by way of consent orders any of the orders of her Honour which are apparently uncontentious in the sense either that the father has not appealed them, or they have been the subject of a previous consent order.
We would also explain that because we are allowing the appeal and ordering a new trial on the basis of the procedural unfairness grounds, we regard this as one of the exceptional cases in which it is unnecessary for us to consider all the grounds of appeal. Indeed, given that a new Judge will have to determine the proceedings between the parties, it may well be undesirable that we comment on a number of the complaints made by the father against her Honour’s exercise of discretion, particularly in relation to the property settlement.
Appeal Grounds 1 (Leave Ground 1) and 4
The matters raised in Ground 1 (Leave Ground 1) are also relevant to a consideration of Ground 4 and hence we will consider them together. These grounds provided:
1.The father’s key witnesses and their affidavits were dismissed constituting lack of procedural fairness.
4.The hearing was scheduled for 4 days (16, 17, 18 & 20 May 2011). My partner [Ms N] agreed to provide an affidavit and present as witness on short notice on Friday 20/5/2011. This was rejected as the 20/5/2011 was cancelled by the magistrate. Additionally this constitutes a lack of procedural fairness
The father’s summary of argument addresses these challenges thus:
84.The father’s witnesses were dismissed as irrelevant to the proceedings despite the fact that they would have been helpful in providing evidence in relation to contact of the children with the father and property settlement. They would have been able to provide evidence to the court in relation to the mother’s manipulative power as opposed to that of the fathers.
85.The father’s core affidavit sworn on 12/5/2011 was not read by FM Henderson nor made reference to in any of the proceedings or judgment.
We will deal first with the issue of the father’s affidavit, then with the evidence of his new partner, and then with the affidavits of his family. We will deal with the procedural fairness issues in relation to Dr W’s evidence under a later ground.
The father’s affidavit
It is clear from the transcript that the father had filed an affidavit on 12 May 2011 and the Federal Magistrate was aware of it because she appears to have made mention of it (Transcript, 16/05/2011 page 33). However, in her reasons at [17], the Federal Magistrate sets out in detail the affidavits which were relied on by the father and the father’s affidavit of 12 May is not there mentioned; nor is it apparently referred to elsewhere in her reasons. We accept the father’s submission that the Federal Magistrate (apparently) failed to take his most recent affidavit into account. This was an important affidavit because in it the father conceded that the children could live with the mother. However, this oversight on her Honour’s part might not of itself warrant our interference with her decision (particularly when it is clear both from the transcript of the trial and from her Honour’s reasons that she was well aware of the father’s concession concerning the residence of the children); but it is a matter which adds weight to our concerns about permitting her Honour’s decision to stand.
The father’s partner
Early on the first day of the hearing before the Federal Magistrate, the following exchange occurred:
HER HONOUR: …Now, the next thing is, Mr [Bakahsh], all these witnesses you want to call, because I will tell you the one affidavit I would really like to see: the affidavit from your wife.
MR [BAKAHSH]: Yes. I’ve actually spoken to her, and she’s happy to produce one. My wife?
HER HONOUR: Yes.
MR [BAKAHSH]: What wife?
HER HONOUR: Well, your Indonesian wife, the woman you live with.
MR [BAKAHSH]: What makes you think I’ve got a wife – an Indonesian wife?
HER HONOUR: Well, the – I’m not saying you’re married to her, but the woman that you live with that the children---
MR [BAKAHSH]: Yes, yes. Yes, she will---
HER HONOUR: The person who has been caring for the children, the person that they talk about in the family report who has got the ---
MR [BAKAHSH]: Yes. We will actually –she will be happy to---
HER HONOUR: That is the one affidavit I wanted to see, because the people that live with parents and assist in the care of the children are the people I like to hear from.
...
HER HONOUR: But what I do want to hear is an affidavit of the woman you’re living with – what’s her name?
MR [BAKAHSH]: Her name is [Ms N]. She’s in Melbourne at the moment.
HER HONOUR: Okay. And you’re not married, you’re just living together—
MR [BAKAHSH]: Correct, your Honour
HER HONOUR: ---as a de facto couple.
MR [BAKAHSH]: Yes, your Honour, and---
HER HONOUR: Now, and you’ve been together since, what, about May, is it?
MR [BAKAHSH]: No, no, no.
HER HONOUR: When have you been living---
MR [BAKAHSH]: Probably around September last year.
HER HONOUR: September 2010.
MR [BAKAHSH]: Yes.
HER HONOUR: Now, I want an affidavit from her, but she’s going to have to be here.
MR [BAKAHSH]: Can you please pay for the costs of the flight.
HER HONOUR: No. No, doesn’t have to
MR [BAKAHSH]: Well, we will do a phone interview then.
HER HONOUR: No, it’s up to me. You don’t make those decisions. I make that decision.
MR [BAKAHSH]: Sorry, okay. I’m not a lawyer, your Honour
HER HONOUR: This is a lady who, if the children spend time with you, will be helping to care for them, because your children have made complaint about her.
MR [BAKAHSH]: I understand that.
HER HONOUR: So it’s not good enough she’s on the telephone. This is not someone it’s good enough she’s on the telephone. She has got to be here in the flesh.
(Transcript 16/05/2011 page 18 line 46, page 19 lines 1-47 and page
20 lines 1-35)
The father protested that, being unemployed, he could not afford the cost. The Federal Magistrate then turned to the representatives of the other parties and the following exchange occurred:
HER HONOUR: Yes, I could ask someone to pay for the costs of the flight, but it would come back to you. Mr Morley and Ms Carr, will you think about whether you want this lady up here in person? I may be able to arrange for a video link – I don’t know – from the Melbourne registry with the video link here. I might be able to do that. But do you think you two could discuss that, Mr Morley and Ms Carr, whether you want this lady up here ‑ ‑ ‑
MR MORLEY: Yes, your Honour.
HER HONOUR: ‑ ‑ ‑ or a video link, because I’m happy to accommodate if I can. But when can you have her affidavit filed?
MR [BAKAHSH]: Probably – she’s coming to a wedding this week, so I can have that filed by Monday of next week.
HER HONOUR: Mr [Bakahsh], you’ve only got – there’s only these days we’ve got for hearing. This is it.
(Transcript 16/05/2011 page 20 lines 45-47, page 21 lines 1-14)
We will return shortly to that last observation by her Honour.
After some further discussion about the father’s other witnesses, her Honour returned to the issue of the father’s partner:
HER HONOUR: And I want an affidavit from your wife, or your common law wife – de facto wife, as we call it. So when can you get that done”
Is she going to be up here?
MR [BAKAHSH]: As I said, next week on Monday.
HER HONOUR: No, well, that’s no good, because I’m not here and I’ve got lots of other matters to hear.
MR [BAKAHSH]: We need an adjournment then, your Honour
HER HONOUR: No, I don’t think I’m going to give you an adjournment. You’ve had plenty of time to do this. If I don’t have her affidavit, so be it, I will do the best I can under the circumstances I’ve got. …
(Transcript 16/05/2011 page 33 lines 21-33)
In this context it is important to record that on 14 October 2010, her Honour’s Associate had written to the father and the other parties informing them:
…this matter was listed before Federal Magistrate Henderson for Final Hearing for four (4) days on 16, 17, 18 and 19 May 2011 at 10am.
Due to changes to the Judicial calendar the matter cannot proceed on 19 May 2010 [sic].
The matter is now listed before Federal Magistrate Henderson for Final Hearing for four (4) days on 16, 17, 18 and 20 May 2011 at 10 am.
(Emphasis as in original)
Thus, it is true that the trial had been listed for days only in the week commencing Monday, 16 May 2011. However, it was always listed for four days in that week, although it ultimately only lasted for three days. We have difficulty in understanding why the Federal Magistrate did not clearly explain to the father that while the hearing could not extend to the following Monday (as he was proposing), there was a gap (being Thursday, 19 May 2011) between the third and fourth days on which he could have obtained an affidavit from his new partner, with her then being available for cross-examination on Friday,
20 May 2011.
Also of concern is that the Federal Magistrate did not revisit her suggestion to the other parties that the father’s partner appear by video link or some other means. In the result, no evidence was taken from the father’s partner.
This is somewhat surprising given the importance that the Federal Magistrate said the partner’s evidence had in the matter. Other than rejecting the father’s suggestion that he bring his partner to court on the following Monday, the Federal Magistrate made no other suggestion to him to him as to how he might make his partner available or what inferences might drawn were she not to give evidence.
It is instructive of this issue to set out the passages from her reasons for judgment where the Federal Magistrate discussed the father’s partner:
109.The Husband’s partner or wife, I am not sure, is not on affidavit despite my direction she be so. The children have referred to her in Dr [W]’s report. She would be a person caring for them in the future and had done so in the past as the boys made complaints of her care.
…
142.
I find the Father and his partner to be a danger to the children.
Dr [W] was clear in his condemnation of Mr [Bakahsh] and that he is a risk to the children. In those circumstances I would be derelict in my obligation and duty to these children to protect them from harm if I made any order for them to spend time with him. When the children are grown they may decide that issue for themselves.
It may well be possible to construe the passages of transcript set out in the above paragraphs as containing a direction by her Honour that the father’s partner should be on affidavit. But as these passages also reveal, no real assistance was given to the father as a self-represented litigant, as to how he might get such an affidavit before the court in the limited time then apparently available for trial, nor and perhaps more importantly, how his partner might be made available for cross-examination on any affidavit which she might provide in a way in which her Honour could both see as well as hear her, and thus be in a position to make a valid determination that she was “a danger to the children”.
We regard the manner in which her Honour dealt with the issue of how the father’s partner might give evidence as procedurally unfair to him in the conduct of his case to be able to spend time with the children, and it is one of the reasons we cannot permit her Honour’s orders to stand.
The father’s family
Amongst the matters discussed at the opening of the trial were affidavits from various members of the father’s extended family on which, although they were apparently filed out of time, the father wished to rely. Ultimately her Honour did not permit him to rely on those affidavits (save for one) on the basis, it seems, that she regarded the affidavits as being directed to the father’s application that the children live with him which he did not ultimately pursue. Whether or not her Honour was correct in refusing to receive the affidavits in question is not of real concern to us. Rather, it is the language which she used in relation to the affidavits and their deponents, which, in our opinion, must undermine her decision.
The first transcript passage which is of concern to us occurred on the first day of the trial:
HER HONOUR: That is the one affidavit I wanted to see, because the people that live with parents and assist in the care of the children are the people I like to hear from.
MR [BAKAHSH]: The witnesses also have actually engaged in that as well, your Honour.
HER HONOUR: No, no, I’m not interested in those people. They’ve got an axe to grind. I would just read their material and then I would just throw it out the door.
MR [BAKAHSH]: That’s not a fair trial, your Honour.
(Transcript, 16 May 2011, p. 19, line 29-35)
Then on the second day of the trial the following exchange occurred during the father’s cross-examination of the mother:
HER HONOUR: Well, look, this – I can tell you now, Mr [Bakahsh], one of the big problems in this case is your families – they’re vile.
MR [BAKAHSH]: Yes.
HER HONOUR: If I could do something about them, I would exercise them all out of your life, but I can’t.
MR [BAKAHSH]: Absolutely, your Honour, that is true.
HER HONOUR: So they’re all horrible as far as I’m concerned. They’re doing nothing to help these children.
MR [BAKAHSH]: Destruction.
HER HONOUR: They’re destructive about you two as people. They’re destructive to your children, so that’s why I don’t want to have anything to do with your families…
(Transcript 17/05/2011 page 81, lines 27-45)
These were extremely unfortunate remarks by her Honour and we can well understand why, in light of such remarks, the father feels aggrieved at her Honour’s rejection of the affidavits of members of his extended family (even if those affidavits were no longer relevant to the matters which her Honour had to decide).
It seems that in the discussions on the first day of the hearing between the Federal Magistrate and the father about the affidavits of the father’s relatives, the father wanted to ensure that those affidavits were before the court not only to counter what he understood to be criticisms of his family in Dr W’s report, but also because the father considered that those affidavits would support his case for time with the children. It seems, however, that the Federal Magistrate was struggling to understand (and not without some justification) exactly what the father’s case was. The position became more confused when, at the end of the first day, the father appeared to abandon his application for orders for time with the children (leaving it to them to decide when to see him) (Transcript 16/05/2011 page 21 lines 8-10), but then on the second day resurrected his claim for time with them (Transcript 17/05/2011 page 15-16).
After the father had indicated his change of position on the second day, the Federal Magistrate indicated to the wife’s solicitor that because it was a “whole different ball game” which we assume was a reference to the father’s amended position in relation to his time with the children, “there might be some of the witnesses that you might want to ask questions of and I would certainly permit that or let them come in.” (Transcript 17/05/2011 page 50 lines 29-31) However, such witnesses were never in fact called.
Later referring to the time that the children were to spend with the father, the Federal Magistrate said:
HER HONOUR: Okay. So we are agreeing – what we haven’t got an agreement on is the “restrained from approaching the children”, and that the children spending time with you is in some way subject to their wishes or subject to them not being adverse [sic] to it. So is that what we’ve narrowed the issues to now?
MR [BAKAHSH]: Yes, your Honour.
HER HONOUR: Okay. So I am going to now then, by consent, make orders 1, 2, 6, 8, 9, 10 and 11. And, by consent, I’m going to amend order 3 “Subject to order 4, the children spend time with the father from 9am until 5pm on either”- it can be the first Saturday or Sunday of the month. That’s fine – “on either the first Saturday or Sunday of each month, provided the father has notified the mother seven days prior to that date that he is able to spend time with the children in Sydney”. All right. So that’s the first thing.
(Transcript 17/05/2011 page 57 lines 3-16)
We note that no such consent order for the father to spend time with the children appears in the Appeal Books, although her Honour did continue after the last quoted passage:
HER HONOUR: Okay. So on the last Saturday or Sunday of each calendar month. So now what I’ve got to determine is whether it’s subject to their wishes and you’re restrained from approaching the children at any other time. So they’re the two things we’re doing now.
(Transcript 17/05/2011 page 58 lines 1-4)
Later on the second day of the hearing when Dr W was commencing his oral evidence and her Honour was explaining to him the stage which the proceedings had reached, she gave a clear indication that the father could expect an order to be made for the children to spend time with him in accordance with their wishes:
What you need to know today, Dr [W], is this, that by agreement I have made the following orders: that the children live with their mother, all five children; that their mother have sole parental responsibility. And the real issues for my determination today are these: the mother is agreeable to the children spending one day per month with their father by their father coming up from Melbourne and spending time with the children in Sydney; the question is, how do we bring that into effect?
The father would like that to be a flexible arrangement, in that he tells the mother when he’s coming, and she makes the children available – I’ve told him that’s not going to fly; there has got to be some definition so the children and the mother know – that it could be either a Saturday or a Sunday. The mother says she will agree to this provided the children express a wish to her to see their father; otherwise, she will not agree to this. That’s the second, and probably the primary important point. And the independent children’s lawyer and the mother each want me to continue an order or make a fresh order that the father is otherwise restrained from approaching the children, such as coming to their school or if they’re playing soccer or something like that.
(Transcript 17/05/2011 page 129 lines 40-46, page 130 lines 1-10)
It is important in this context of the father’s complaints about a lack of procedural fairness that we refer to the order which her Honour ultimately made in relation to the father spending time with the children, being:
I discharge all or any previous orders made for the children to spend time with the father.
In her reasons for judgment where she explained the absence of any order for the children to spend time with the father, her Honour said:
7.The ultimate issues for me in relation to the children were whether the children’s time with their Father was to be subject to and only occur in accordance with their wishes and whether the Father should be restrained from approaching the children’s school, home or other place of extracurricular or education activity they may engage in from time to time.
8.The Father sought that the children spend time with him by agreement once a month. He wished to be able to approach the children’s school, see them at school and to be involved in their education.
9.The consent orders I made were subject to my ruling on the Independent Children's Lawyer’s and Mother’s position that the children only spend time with their Father in accordance with their wishes and his not approaching the children’s school.
10.It is still within my discretion whether I will after having heard all the evidence, vary any of the orders that the parties agreed to.
11.After hearing all the evidence I was concerned whether I should agree to any order that the children spend time with the Father even if this was to be subject to their wishes.
…
134.The Independent Children’s Lawyer said there should be no time for six months and the Father was not to approach the children’s school. The children have been severely punished by their bravery in continuing their relationship with their Mother.
135.The Mother says the Father has a toxic attitude to and relationship with the children and there should be a 12 month break. They are damaged children. The danger is he will attempt further rehabilitation of the children around to his point of view. The boys and Mother are exhausted. They need time away from the Father.
136.The Independent Children’s Lawyer and the Mother agree the boys are brave. If they want a relationship with their Father they will
re-establish that relationship as they did with their Mother.
137.I formed a view that to make any order for the children to spend time with their Father it is not an order in the children’s best interests for the following reasons.
Her Honour then considered the matters in ss 60CC(2), (3) and (4) of the Family Law Act 1975 (Cth), and concluded:
143.Thus I will not make any order at all for the children to spend time with their Father and I discharge any order so made.
It will thus be seen that no party had submitted that, irrespective of their wishes, the children should have no time with the father. It was of course open to her Honour to make the order which she did. But procedural fairness required that she give all parties the opportunity to comment on the order which she proposed to make which had the effect of denying the possibility of any time between the father and the children, given that, as we have said, no party sought that order (U v U (2002) 211 CLR 238). The Federal Magistrate appears not to have provided such an opportunity and this is another reason why we must interfere with her orders.
Appeal Ground 3
It is in the context of Ground 3 that the father’s complaints about the late availability of Dr W’s second report arise for consideration. That ground asserted:
3.The magistrate clearly stated upfront on 16/5/11 before conducting the hearing, that outcome will be dependent on the “Expert Report”. It was evident that judgement [sic] was already made prior to the hearing. This constitutes a lack of procedural fairness.
When the hearing commenced on 16 May 2011, the second report of Dr W was provided to all parties with her Honour observing that they would all need some time to read it because it “is extremely important in relation to the parenting orders”. After further discussion with the father (apparently in reference to his application, although transcript pages are missing from appeal books) the Federal Magistrate said:
So I need you now to think about the orders that you want to spend time with the children, because Dr [W] says you shouldn’t come near them…
(Transcript 16/05/2011 page 15 lines 23-25)
We can understand how this comment might have given the father the impression that the Federal Magistrate had decided the outcome of the case. However we are not persuaded that the comment, of itself, amounted to a concluded view formed by the Federal Magistrate.
More significantly, however, and as we have indicated the transcript reveals that it was only at the beginning of the hearing that the parties, as well apparently as her Honour, were provided with a copy of Dr W’s latest report. Again, as already mentioned, her Honour observed at that time:
We’ve all just received that, so you all need some time to read that, because that is extremely important in relation to the parenting orders…
(Transcript, 16/05/2011 page 2 lines 29-31)
Later in the proceedings, immediately after her Honour had told the father of the limited days for the hearing during her discussion with him about the availability of his new partner to give evidence (see [33]-[35] above), the father raised with her Honour the very late receipt of the expert report, with the following exchange occurring:
MR [BAKAHSH]: This has all come to light with the report. I mean, the [W] [sic] report was only given to us today, your Honour, so, I mean ‑ ‑ ‑
HER HONOUR: Accepted 100 per cent, and I apologise. That’s why I asked are you ready to proceed with the hearing.
MR [BAKAHSH]: Yes, well
HER HONOUR: I’m not saying you have to proceed.
MR [BAKAHSH]: We can adjourn if you like
HER HONOUR: No, no.
MR [BAKAHSH]: but we certainly can’t do it by this Friday.
(Transcript, 16/05/2011 page 21 lines 16-30)
Her Honour did not respond to that last comment by the father, but rather moved to the issue of the affidavits from various family members on which he wished to rely. The father, however, continued to pursue his concerns about the report and its apparently adverse references to members of his family:
MR [BAKAHSH]: There has been some accusation of slander, you know, a terrible misconception and a manipulation of, you know, the – there is substantial evidence that Dr [W] himself, I’m sorry to say that, has been manipulated, and I want to bring the evidence in front of the court.
HER HONOUR: Why? How will that help you in your case to spend time with the children? I’m happy for you to ask Dr [W] questions. I didn’t say you shouldn’t ask him questions. But I don’t – your matter just doesn’t run to suit you. I’m in Albury next week. I have 600 matters that I manage in my docket. Unfortunately, Mr [Bakahsh], you’re just one of the matters I deal with.
MR [BAKAHSH]: Yes, okay.
HER HONOUR: And I’ve allocated this time for you, and it has been allocated for a long time to give you time to prepare.
MR [BAKAHSH]: Well, once again
HER HONOUR: I accept Dr [W]’s report came late, and I apologise to you for that.
MR [BAKAHSH]: That’s okay. Once again, in view of this report, I would like to call on my partner to be a witness, and two other people or three other people who have been adversely implicated by this report.
HER HONOUR: No, no, I’m not here about adversely implicated people in this report. I’m not here about the reputation of anyone. I’m here about an order
MR [BAKAHSH]: Well, that’s what the report is all about.
HER HONOUR: No, it’s not.
(Transcript, 16/05/2011 page 22 lines 12-31)
Again, at this point, the concerns which we expressed earlier about the previous advice to the father from her Honour’s Associate that Friday, 20 May 2011, would be available as a hearing day become relevant, especially against the background of the late receipt of Dr W’s report and of the father’s attempts to seek an adjournment of the hearing. Our concerns in relation to a lack of procedural fairness to the father in connection with Dr W’s evidence are highlighted by the following exchange which occurred at the commencement of the second day of the hearing (emphasis added):
HER HONOUR: Now, Mr [Bakahsh], have you had an opportunity to get in contact with Dr [W]?
MR [BAKAHSH]: Yes, your Honour, I have.
HER HONOUR: And what was his situation about
MR [BAKAHSH]: He can attend on Friday morning in person.
HER HONOUR: I’m not here Friday morning. This matter isn’t listed for Friday. I’m at a meeting.
MR [BAKAHSH]: No, we have it listed for Friday.
MS CARR: Your Honour, I spoke to Dr [W]’s secretary this morning. Because
HER HONOUR: I’m not here Friday.
MS CARR: Your Honour, she says that Dr [W] at 3.30 today via telephone for a very limited time, less than half an hour, would be all that he would be available for this afternoon via telephone.
HER HONOUR: All right. Well, given it’s – I will certainly – we will certainly do that at 3.30 this afternoon to give Mr [Bakahsh] an opportunity to – don’t shake your head – give Mr [Bakahsh] an opportunity to ask questions. If we need further time we’re going to have to do it at some other stage, but I’m not sure I even need to rely upon Dr [W’s] reports in this matter now that we have got the issues so limited. I don’t know that I even need to refer to them. It’s my view that all I need is your affidavit, the wife’s affidavit, the subpoena material. I don’t know I need much more. I may not have to even look at Dr [W’s] reports because we’re not talking about residence now. We’re talking about the time the children spend with you, which is to be in accordance with their wishes, and we’re talking about parental responsibility.
(Transcript 17/05/2011 page 45 lines 2-35)
It can be inferred that Mr Bakahsh was of the clear view that Friday,
20 May 2011 was available for his cross-examination of Dr W and was unhappy that he would be required to deal with this important evidence on the afternoon of the same day. Presumably it was Mr Bakahsh who shook his head.
This passage also indicates that her Honour suggested that she would probably place little weight on Dr W’s evidence, when, in fact, his opinions were pivotal to the decision to order that the children spend no time with the father.
Conclusion in relation to procedural fairness
As we said at the outset of the reasons, we consider that the various instances of procedural unfairness to that father which we have identified require us to allow the appeal and set aside her Honour’s orders.
Leave Ground 4 and other grounds
Leave Ground 4 of the father’s amended notice of appeal raises different issues in that it asserts:
Errors in findings of fact and consistent errors in “reasons for judgement [sic]
Given that we have already decided that the appeal must be allowed on the grounds relating to procedural unfairness, we do not need to discuss these complaints. There is, however, one complaint by the father which we consider has substance and which has some relevance to our earlier concerns in relation to his complaints about procedural fairness.
At [22] of her reasons, the Federal Magistrate refers to a “plethora” of exhibits. She makes particular mention of the following exhibit and then observes:
e)Exhibit 4, sleeve 9 of the Police records. All these events show the Husband was the aggressor as the Police saw it, not the Wife as the Husband alleged in his material to the Police and Dr [W].
A consideration of the documents contained in Exhibit 4 reveals that the Federal Magistrate’s analysis of them is incorrect. It is unnecessary to go into detail in relation to them, but we are satisfied that the documents, in a number of respects, support the father’s claims that the mother was on occasions deemed to be the aggressor and on others the police formed the view that there was no real cause for concern based on the mother’s complaints.
When her Honour listed the exhibits which were before her at [22] of her reasons, she also referred to Exhibit 3 which was police records. Our reference to those records also supports the father’s claims referred to in the last paragraph.
The balance of the father’s grounds of appeal (6, 7, 8 and 9) and leave grounds
(5 and 6), address asserted errors in her Honour’s findings and approach to the property issues. As indicated at the outset of our reasons, given that as we are satisfied there must be a new trial, because of procedural unfairness to the father, we will not address any of the remaining grounds of the appeal.
Conclusion in relation to the appeal
As we have also indicated earlier, the appeal will succeed and the Federal Magistrate’s orders will be set aside.
Parenting Orders pending a new trial
It is common practice that when the Full Court sets aside parenting orders, it will re-make those orders (or the substance of those orders) as interim orders to ensure that there is not a gap in the legal arrangements relating to the children. We propose to do this in the present case. But we appreciate that the parties have not been heard in relation to such interim orders. We therefore make clear that if they wish to vary such orders they should apply to the Federal Circuit Court on an urgent basis.
Costs
As is the usual practice we canvassed the question of costs at the conclusion of the hearing of the appeal. Given the basis on which the appeal has succeeded, it would not be appropriate to make any order for costs. But it would be appropriate to grant each party a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of any costs that they may have incurred in receiving legal advice or assistance in preparation for the appeal, and importantly, so far as the appellant father is concerned, in respect of the acquisition of transcript and the preparation of appeal books. It would also be appropriate for each party to receive a certificate in respect of the new trial which we will order.
_____________________________________________________________________
I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Ainslie-Wallace and Stevenson JJ) delivered on 19 August 2013.
Associate:
Date: 19 August 2013
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