BARBER & WALFORD
[2015] FamCAFC 97
•27 May 2015
FAMILY COURT OF AUSTRALIA
| BARBER & WALFORD | [2015] FamCAFC 97 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father asserts “gender bias” against him by the trial judge – Where the father asserts that the trial judge made findings of fact which were not supported by evidence and placed too much weight on the mother’s uncorroborated evidence – Where none of the father’s assertions as to bias or as to errors of the trial judge are established – Where the trial judge’s findings were open to be made on the evidence before him – Appeal dismissed – No order as to costs. FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the central basis relied on by the father in support of his application to adduce further evidence is not made out – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Barber |
| RESPONDENT: | Ms Walford |
| INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family and Animal Law |
| FILE NUMBER: | BRC | 6116 | of | 2011 |
| APPEAL NUMBER: | NA | 46 | of | 2014 |
| DATE DELIVERED: | 27 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Finn & Kent JJ |
| HEARING DATE: | 13 April 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 August 2014 |
| LOWER COURT MNC: | [2014] FCCA 1979 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Hon M Foley |
| SOLICITOR FOR THE RESPONDENT: | RA Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family and Animal Law |
Orders
The application to adduce further evidence on the appeal filed by the appellant on 26 March 2015 is dismissed.
The appeal is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barber & Walford 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 BRISBANE |
Appeal Number: NA 46 of 2014
File Number: BRC 6116 of 2011
| Mr Barber |
Appellant
And
| Ms Walford |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 29 August 2014, Mr Barber (“the father”) appeals from final parenting orders made on 11 August 2014 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) by Judge Jarrett in the Federal Circuit Court with respect to the child M born in February 2013.
Each of Ms Walford (“the mother”) and the Independent Children’s Lawyer appointed pursuant to s 68L of the Act to independently represent the child M’s interests in the proceedings (“the ICL”) oppose the appeal.
The trial judge made the orders which were sought by the ICL at the conclusion of the trial. These included an order for the mother to have sole parental responsibility for the child M; and for M to live with the mother; and for M to spend time with the father for six (6) hours each Wednesday and each Sunday and an overnight period each Christmas. There were further orders providing for time with each parent on special occasions.
The father seeks on this appeal that these orders be set aside and that instead there be an order for the parents to have equal shared parental responsibility for the child M and an order for M to live with the father. He also seeks an order for M to spend time with the mother on alternate weekends conditional upon the mother not allowing any of three (3) nominated persons having any contact with M. The father’s proposed orders include provisions for time on special occasions.
By an Application in an Appeal filed on 26 March 2015 the father applies to adduce further evidence on the appeal comprising an extract of the transcript of domestic violence proceedings which took place in the Magistrates Court in November 2014.
Application to adduce further evidence
The relevant background to this application includes that the father and the mother also have a son, the child C, born in 2011 who was not the subject of these proceedings as a result of final consent orders made on 26 July 2012 providing for the parenting arrangements for C. Whilst C was not the subject of these proceedings, there was evidence concerning C that was relevant to these proceedings as will be further discussed.
The asserted basis the father identifies to support his application to adduce further evidence is that the transcript of the domestic violence proceedings on in November 2014 contains, the father asserts, admissions by the mother to the effect that the mother gave false evidence before Judge Jarrett in these proceedings.
The father asserts that:
a)The mother gave evidence in the parenting proceedings before Judge Jarrett that she had not seen the parties’ child C “for two (2) years”; and
b)
The mother admitted, in the course of giving evidence under
cross-examination in the subsequent domestic violence proceedings in November 2014:
i)That she “had lied” to the Court in giving her evidence in the parenting proceedings; and
ii)That she had done so “to win the Family Court case”; and
iii)When told “she couldn’t do that” she said she “didn’t care, she wanted to win.”
As was discussed with the father in the course of the hearing of the appeal, the mother’s affidavit sworn on 16 July 2014 and relied upon by her in the parenting proceedings before Judge Jarrett contains the following, at paragraphs 43 and 44:
43.I did not see [C] from mid-October 2012 until mid March 2013 when I was permitted to spend about five (5) minutes with [C] when the Applicant father sent me a text asking me to meet him at [a restaurant]. I agreed and brought [M] and the other children with me.
44.I have subsequently spent four periods of time with [C] since March 2013.
The father did not direct our attention to any other affidavit evidence of the mother that was before Judge Jarrett containing any deposition by the mother to the effect that she had not seen the child C for two years. Our review of the appeal record and of the two affidavits of the mother that were read before Judge Jarrett reveals that this alleged evidence was not contained in any affidavit of the mother that was before Judge Jarrett.
The mother also gave oral evidence at the trial of the parenting proceedings and was cross-examined by counsel for the ICL and by the father. The father did not identify in the course of argument before us, notwithstanding being asked to do so, any passage of the mother’s oral evidence at trial where the mother gave evidence to the effect that she had not seen C for two years. Our review of the trial transcript does not reveal any such evidence appearing within the mother’s oral evidence.
For completeness, we refer to the affidavit of Ms W, a social worker, filed on 3 February 2014 which attached her family report prepared following interviews she conducted on 29 November 2013; the report was relied on by the ICL in the trial.
Whilst what each party told Ms W in those interviews is not direct evidence from that party, we simply note that nowhere in Ms W’s report does she record the mother reporting that she had not seen C for two years. Whilst the mother is recorded as telling Ms W that she had not been seeing C in accordance with the orders made in July 2012 (at paragraph 75) it was in fact the father’s partner Ms T, and not the mother, who was recorded as reporting to Ms W that the mother “… has not spent time with C since Father’s Day 2012” (at paragraph 37). That information was not factually correct but the point is that it was provided by the father’s partner and there was no report by the mother to Ms W to the effect that she had not seen C for two years.
It is also to be noted that Ms W was provided, for the purpose of her report, with the mother’s affidavit sworn on 16 July 2014 which we have earlier referred to. Ms W’s cross-examination at the trial does not reveal any oral evidence of Ms W to the effect that the mother had reported that she had not seen C for two years.
Thus the central basis relied upon by the father for his application to adduce further evidence is not made out because there was no evidence of the mother, whatsoever, before Judge Jarrett to the effect that the mother had asserted she had not seen C for two years.
Furthermore, in relation to the contentions contained in [8](b) above, the mother did not in fact make any of the admissions the father asserts that she made in the course of giving her evidence in the domestic violence proceedings.
Thus the father’s application to adduce further evidence on the appeal must be dismissed.
Grounds of Appeal
The father’s Grounds of Appeal are as follows (errors in original):
1.The Judge was gender-biased against me and pre-disposed of the respondent before court even started – this is evident in cross-examination of myself and the respondent.
2.The Judge made a finding of facts on important issues which could not be supported by evidence:
(a)The Judge took no notice & gave no weight to supporting evidence supplied by me through subpoena’s namely The department of housing and The department of Child Safety. These subpoenaed documents supports what I stated in my affidavit.
(b)The Judge put too much weight on the Respondent’s affidavit which included NO supporting evidence.
(c)The judge’s decision was not consistent to what he stated in the trial, he stated that he wouldn’t support overnight contact, yet the order states that overnight contact can occur.
(d)The Judge took the respondent’s affidavit as being truthful, with no supporting evidence what-so-ever, yet I had supporting evidence by way of subpoena’s and that was completely overlooked, and my supporting evidence dismissed the respondent’s affidavit totally.
The manner in which the father’s oral argument was addressed to us disclosed considerable overlap between his Grounds of Appeal such that the grounds can be classified into two grounds, being Grounds 1, 2(a), and 2(d) on the one hand and Grounds 2(b) and 2(c) on the other.
Grounds 1, 2(a) and 2(d)
Because the father, who has no legal qualifications or legal training, represented himself on his appeal, and because his summary of argument filed on 26 February 2015 did not provide much in the way of particulars as to the claim that the trial judge was “gender-biased” against him, we sought to have the father direct us to relevant transcript references which he relied upon in support of this Ground. As Ground 1 records, the asserted gender bias is stated to be evident in the cross-examination of each parent.
The father directed our attention to the transcript of his cross-examination of the family report writer Ms W rather than the cross-examination of either himself or the mother. In essence, the father’s complaint crystallised into the assertion that he was not given a fair or sufficient opportunity to challenge matters of fact recorded in Ms W’s report, particularly by reference to documents that had been produced to the Court on subpoena from the Department of Child Safety and the Department of Housing.
However, reference to the transcript of the proceedings reveals that the trial judge took some care to explain to the father the means by which he could challenge matters of fact recorded Markus by Ms W. For example, early in the father’s cross-examination of Ms, when it was apparent from the father’s questioning that the father was seeking to put matters of fact to Ms W, the trial judge had this exchange with the father (errors in original) (Transcript of Proceedings 7 August 2014 page 12 lns 17-47, page 13 lns 1-4):
HIS HONOUR: And if you think that there are important matters that Ms [W] has relied upon in her report that are factually incorrect then you need to direct her attention to the particular part of the report that you say – where you say the factual inaccuracy is and tell her what you say the correct fact position is and ask her whether that makes any difference to her opinion.
MR [BARBER]: All right, sir.
HIS HONOUR: Because there could be any number of matters that might be able to be shown to be false by you that won’t have any affect at all on Ms [W’s] opinion, or there might be some that do. And it’s the ones that do, really, that are important.
MR [BARBER]: Yes, sir.
Immediately after that exchange, Ms W herself, in answering a question by the father, gave further explanation to the father as to how her opinion might be affected by further information, in the following exchanges:
MR [BARBER]: Well, basically, as I said, about would it have made a difference if you had have – you realised she was using two names with Department of Families? ---
MS [W]: No, that’s not an issue in terms ---
MR [BARBER]: Even with ---?---?---
MS [W]: --- of great importance to me in this matter.
MR [BARBER]: So even with notifications in the name of [S] that wouldn’t have altered your judgment at all? ---
MS [W]: Well, if I had been given information – I’m only given the information that I’m given. If I had been given information that showed there were more notifications or there were more concerns then perhaps that may have swayed my opinion, but I can’t give you a direct answer unless I actually see the information that you’re talking about.
MR [BARBER]: Well, my whole – my promise is, really, that everything she told you was a fabrication. So I mean, would that – would that alter your outcome to some degree? ---
MS [W]: Perhaps it may. It’s a difficult question for me to answer in terms of what I’m looking at is parenting, I’m looking at risks. So perhaps in terms of analysing the risks if I became aware of more risks then that would change my opinion, but I can’t answer you that question properly because I’m not really clearly sure what it is that you’re saying that is a risk that I’m not aware of.
Following a further exchange with Ms W concerning the reliability of information she was told at interview, there was this further exchange (Transcript of Proceedings 7 August 2014 page 13 lns 29-43):
MR [BARBER]: But you just said yourself that even with the coming down to ascertaining risk ---?
MS [W]: --- Mmm.
MR [BARBER]: --- the more truthful information would have been better for you to ascertain that? ---
MS [W]: That’s true.
MR [BARBER]: So that’s what I am saying, all we are left within this report now, in my mind, is your observations? ---
MS [W]: That seems a bit of a big leap, because again, as the judge was saying to you before, I’m trying – for me to answer you, you’re telling me that there are things that you’re aware of that I am not aware of and that if I was aware of those pieces of information it might change my opinion; that’s what you’re saying, isn’t it?
MR [BARBER]: Yes, ma’am? ---
MS [W]: Okay. So I need to know what it is that you’re concerned about so that I can properly answer your question.
After the father then gave a general reference to his having “gone back through subpoenaed Queensland Health records” his Honour again gave this direction to the father (errors in original) (Transcript of Proceedings 7 August 2014 page 14 lns 17-37):
HIS HONOUR: Well, that might be true, but you might have horribly misinterpreted the documents. What you need to do with Ms [W] is to say, “Look, in your report you focused on this particular information as being important. Can I ask you for the moment to assume that that information given to you by the mother is wrong and the true position is whatever it is. Does that affect your opinion about this matter?” And you will get an answer from Ms [W].
And then you go to the next bit and do the same. And you might over the course of that get from Ms [W] a no. “No, it doesn’t affect – no, no, no, no,” and then at the end you can ask her, “Well, what about the cumulative effect of all of those inconsistencies and inaccuracies that I’ve just asked you to assume? If all that is true does that affect your opinion?” She might say, “No.” She might say, “Mmm, you’ve made me think about it. You’ve made me think about it a lot and you might be right. If those things are true the cumulative effect might be that, you know, my opinion is slightly different.”
It’s not the time now for you to assert – It’s not the time now for you to stand there and say, “Well, I’ve checked all this stuff and it’s wrong.” You need to just point out the relevant bits to Ms [W], ask her to assume what’s true. The only person that counts in this place when it comes to determining whether something is true or not is me.
Following that direction there was then this further exchange between the father and Ms Markus (errors in original) (Transcript of Proceedings 7 August 2015 page 15 lns 7-42):
MR [BARBER]: All right. Well, Ms [W], if it was found that she had more notifications with child safety in another name, would that have – make a difference to your outcome? ---
MS [W]: That could do. I would want to see the outcome of those notifications. Sometimes there can be a lot of notifications but the answer from the department or the assessment from the department is unsubstantiated, so I would want – perhaps it would but I would want to see the outcome first.
MR [BARBER]: You would be more concentrating on substantiated outcomes than just complaints, I suppose, the unsubstantiated ones are? ---
MS [W]: Yes, but I also look at the cumulative effect that if there is a number of similar notifications or allegations made, then I’m looking to see if there is a pattern, but my opinion would be more swayed if there were substantiated outcomes than if there [were] unsubstantiated outcomes.
MR [BARBER]: Also if any of the information as in the mother saying that her house is always clean and properly done for children, any information again – or disproving that, would that weigh on your outcome or not? ---
MS [W]: Well, whether a house is clean or not is a difficult – because, again, that’s a question of what one person considers clean as opposed to whether it’s unhygienic or not. So I would be ---
MR [BARBER]: I’m not really making it easy for you, am I? ---
MS [W]: No, but that’s okay. I would be looking at whether there was information as to whether either parents’ household was unhygienic or whether either parents’ household there were dangers. For example, an unfenced pool, just to give an obvious example. So if that sort of information came to me then I would have to consider that in the broader context of all the other information.
MR [BARBER]: Yes, ma’am. Also if a person that had been deemed to be – not to be at Ms [Walford’s] address, ie, her brother, who has caused quite a lot of damage to her house previously, would that be – if he continues going around there, would that be something for you to take into consideration; a lot of domestic violence? ---
MS [W]: There’s probably two – I’m aware of the incident with [the mother’s brother]. The issue there would be exposure of the children to that situation. So I don’t know whether [the brother] is going around there or not, but the issue would be whether or not there was contact between [the brother] and the children – or the children were present when [the brother] was there is probably a better way of putting it, because that is, in terms of risk, what I would be interested in.
At that point the father terminated his cross-examination of Ms W. As the transcript reveals, he so terminated the cross-examination without actually having put any particular fact to be assumed by Ms W by reference to any subpoenaed documents; nor did he otherwise direct Ms W’s’ attention to any specific content of any subpoenaed documents.
It may also be observed that the transcript reveals that very early in the trial the trial judge explained to the father, given that he was self-represented, that the parenting orders to be made with respect to the subject child would be based on their best interests and that determination would be based on the evidence before the trial judge. The trial judge explained how evidence could come before him in the following terms (errors in original) (Transcript of Proceedings 7 August 2014 page 2 lns 39-45, page 3 lns 1-45):
HIS HONOUR: Right. At the end of the case I will be asked to make orders. I don’t have to make the orders that you want. I don’t have to make the orders that the mother wants. I don’t have to make the orders that the ICL says I should make. I can make the orders that I think on the evidence are in the best interests of the child in this case. Yes? You understand that?
MR [BARBER]: Yes, sir, I do understand that.
HIS HONOUR: All right. I can only make an order which I think is in [their] best interests based on the evidence before me. What is in the evidence tells me, or informs my decision. Evidence in this case, or in this court, takes one of three forms. What is in an affidavit is considered to be evidence, generally speaking. People who swear affidavits are liable to come to the witness box and be cross-examined, and what they say in the witness box is evidence as well. And if there are documents handed up in the course of the trial which I accept, that is evidence as well. So the evidence comes from one of those three places; affidavits, what witnesses say when they’re cross-examined and what’s contained in documents that might be handed up and received by me.
If it’s not in the evidence I can’t take any notice of it. What people say from the table where you’re sitting at now is not evidence. People can make submissions from the bar table but unless the submissions are supported by sworn testimony then I’m not likely to pay them any attention. What I do with the evidence is a matter entirely for me. I can accept evidence, reject evidence, accept some of it, reject some of it, give some of [it] no weight, give some of it little weight, give some of it lots of weight. It’s a matter entirely for me. The trial is, really, divided into two parts. The first is about gathering the evidence and the second part is about persuasion.
The first part of the trial is divided to identifying the affidavits that everybody wishes to rely on, the questioning of witnesses and to the giving to the court any other documents that the parties might have. And we will start that part of the trial soon. The second part of the trial – the second phase of the trial is about persuasion. It’s about drawing it all together. Counsel for the independent children’s lawyer gets to make a speech, you get to make a speech, the mother’s counsel gets to make a speech. And the purpose of those speeches is to assist me to reach a determination about what is in the best interests of [the child M] in this case. Yes? And your job is to persuade me to make the orders that you want me to make. And you must do that by reference to the law that I have to apply, set out in the Family Law Act section 60CC; you’re familiar with that, aren’t you? You’re familiar with that?
MR [BARBER]: Yes, sir, I am.
HIS HONOUR: Yes. And the evidence in the case. And you – expected to tell me how the evidence impacts on what relevant section 60CC factors you say there are in this case.
MR [BARBER]: Yes, sir.
HIS HONOUR: The other side will do the same and the independent children’s lawyer will do the same. The ICL will generally make their speech first, then the respondent and then you. Okay? All right? So you’re ready to commence?
MR [BARBER]: Yes, sir, I am.
(Emphasis added)
We also note that in circumstances where arrangements had obviously been made to have the expert family report writer Ms W give evidence first, before either party had been cross-examined, the trial judge explained that process to the father and in particular the potential need for Ms W to be re-called. There was this direction by his Honour (errors in original) (Transcript of Proceedings 7 August 2014 page 9 lns 31-47, page 10 lns 1-28):
HIS HONOUR: Great. So, ordinarily, the order of witnesses is that the applicant would go first, so that’s you, you would be cross-examined by the barristers first, then your witnesses that they wish to ask questions of would be cross-examined. Then you would cross-examine the mother because she’s – there’s only her giving evidence in her case. So if you wish to have questions of her then that would happen, and the questions by the ICL would happen as well.
MR [BARBER]: Yes, sir.
HIS HONOUR: And then – and the ICL would call the expert. Yes? But sometimes the witnesses are called out of order and the ICL says Ms [W] is here, she’s here in person. She ---
MR [BARBER]: She’s a very busy lady.
HIS HONOUR: Well, I’m not so worried about that. You know, if you’re an expert witness in courts then you can expect to be inconvenienced from time to time, but if she’s here and she’s ready to go and nobody else objects we can deal with her evidence now. The issue for you is whether you’re disadvantaged by doing that, by having her evidence first.
MR [BARBER]: I don’t think so, sir.
HIS HONOUR: You don’t think so? Sometimes this advantage does arise because when the parties give evidence – I mean, you get cross-examined, or when the mother gets cross-examined – evidence comes out in the cross-examination that is important for the report person to know about. That doesn’t happen in every case, it only happens occasionally, but it does happen, you know. So sometimes people don’t want the report writer to go first just in case something, you know, comes out in the evidence that’s important. The one way to deal with that is to have Ms [W] give her evidence and if something arises out of the evidence later from you or your witnesses or the mother we can either get her back here or get her on the telephone and those things can be raised with her and she can deal with them if she needs to. So it can happen that way. Do you have a preference?
MR [BARBER]: No. I think if everybody is in agreeance she can go first and if we need to we can always get her back on the phone, as you said, sir.
HIS HONOUR: Yes, okay. Do you wish to ask her any questions?
MR [BARBER]: I’ve got quite a few I would like to ask her, sir. Can I refer on the subpoenaed material.
HIS HONOUR: Yes, of course you can.
Thus in addition to being informed by the Court that he could tender documents as evidence it was made clear to the father that he could make reference to subpoenaed material for the purpose of his questioning of Ms W and, if necessary, have her re-called to give further evidence or be further cross-examined in the event there was a need to do so following each party or other witnesses giving evidence. The father did not seek to have Ms W re-called after other witnesses had been cross-examined.
During the trial the father observed documents obtained on subpoena being tendered in evidence. For example, the father’s own criminal history was tendered as Exhibit 1. That tender was made by counsel for the ICL and the trial judge asked the father whether he had any objection to that tender, which he did not.
Further, to the extent that the father raised before us the suggestion that documents obtained on subpoena from the Department of Child Safety were contained on an electronic disk, and to the extent the father thus implied some difficulty in extracting specific items, it is to be noted that when the father was being cross-examined there was a plain reference by the trial judge to the capacity to print out individual documents if needed. There was this exchange during the course of the father’s cross-examination by the mother’s legal representative, Ms Wright (Transcript of Proceedings 7 August 2014 page 46 lns 18-26):
MS WRIGHT: Did you read the subpoena material, sir? ---
MR [BARBER]: Yes. I did.
MS WRIGHT: In the subpoena to the Department of Child Safety, which is on a disk, your Honour – we don’t have it printed out on – sorry about that. It’s 453 pages, your Honour.
HIS HONOUR: Presumably you can print the individual pages if that’s what you needed.
MS WRIGHT: We could do that, your Honour.
The father could have been in no doubt that pages of the documents from the subpoenaed material or electronic disk could have been printed and if it was necessary to re-call Ms W to address such extracts in that manner, it was equally clear to the father that he could seek to do that; or seek to tender pages into evidence, for the reasons we have already discussed.
Indeed, immediately following completion of the mother’s cross-examination (the mother being the last of the witnesses required to give oral evidence at trial) the trial judge specifically checked with the father whether there was any other evidence the father wanted the Court to have, as appears from the following exchange (errors in original) (Transcript of Proceedings 7 August 2014 page 75 lns 5-25):
HIS HONOUR: Well, I think that completes the evidence. Do you wish to make your submissions now, Mr Linklater-Steele?
MR LINKLATER-STEELE: Could I have five minutes, your Honour? Just to take some instructions.
HIS HONOUR: Yes. Of course you can have five minutes. So sir, we’ve now completed the evidence-gathering [part] of the trial.
MR [BARBER]: Yes.
HIS HONOUR: There’s no other evidence you want me to have?
MR [BARBER]: Not that you haven’t already got, sir.
HIS HONOUR: Good. So we will have addresses when we come back shortly. Mr Linklater-Steele will go first. Ms Wright will go next and then you can have the last [word]. Okay.
MR [BARBER]: Yes, sir.
HIS HONOUR: Great. Thank you.
During the hearing of the appeal, the father did not take us to any transcript reference to substantiate, even remotely, the claim within Ground 1 that reference to the transcript concerning cross-examination would demonstrate that the trial judge was “gender-biased” against the father. To the contrary, on our review of the transcript including the above references it is clear that the trial judge was at some pains to render assistance to the father which was appropriate and fair.
At no point in the trial proceedings did the father raise with the trial judge any concerns he had, or any apprehensions he had, that the trial judge was somehow demonstrating bias against him.
Whilst the father submitted to us that he was not aware that he could ask the trial judge to recuse himself for apprehended bias, that ignorance does not explain why it is that at no point did the father question the trial judge in any way or in any manner about the conduct of the proceedings or the trial judge’s role or raise anything in the nature of a complaint. The references to the transcript we have made demonstrate that there was ample opportunity for the father to raise any concerns at all as to the manner of the trial judge’s conduct.
In this context the father’s proposition appears to be that calling upon the trial judge to withdraw from the case (an option the father says he was ignorant of at the time) was the only option available to him. That, as a matter of logic and common sense, cannot be accepted. Moreover, it is not the law that it is only by calling upon the trial judge to withdraw from the case that a litigant will otherwise be taken to have waived any right to later object on the ground of bias. As Toohey J said in Vakauta v Kelly (1989) 167 CLR 568 at 587 (“Vakauta”):
There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. …
In respect of the father’s complaints about “bias” thus far discussed, we have sought to explain why the subject conduct of the trial judge could not conceivably have given rise to a reasonable apprehension that the trial judge might not bring an impartial and unprejudiced mind to the resolution of the case. That is, we do not accept that any of the father’s complaints thus far discussed either alone or cumulatively involve any conduct of the trial judge providing, even remotely, any foundation for a claim of bias. We need only add that even if any of these complaints had any such substance, given that all relevant circumstances surrounding them were known to the father at the time, yet he made no complaint at all to the trial judge, the father would have had, in any event, a significant hurdle to overcome. The father, having stood by in the course of the trial without making any of the complaints he now seeks to agitate on appeal about the conduct of the trial judge, ought not be permitted to do so on the principle that “[b]y standing by, such a party has waived the right subsequently to object.” (Vakauta per Brennan, Deane & Gaudron JJ at 572; per Dawson J at 578-579; and Toohey J at 583-584).
Vakauta is also authority for the proposition that the principle that a litigant may waive the right to later object on a ground of bias (if no complaint is made at the time) does not apply if the relevant ground or matter constituting bias is only revealed in the Reasons for Judgment of the trial judge. In that context a further matter the father sought to rely upon in support of his claim that the trial judge was “gender-biased” or biased against him was in respect of the trial judge’s findings, as contained in the Reasons for Judgment, concerning the father’s failure to undertake a post-orders parenting program as had been earlier ordered. The father’s challenge is to the effect that only the father was “reprimanded” by the trial judge for failing to undertake such a program yet so too had the mother not undertaken such a program. This feature was contended as disclosing bias.
Paragraphs [25] and [26] of the Reasons were identified by the father as containing what the father refers to as his being “reprimanded” by the trial judge. Those paragraphs are as follows:
25.There was a recommendation in Ms [W’s] report, which was delivered much earlier in these proceedings, in February of this year, that the parties undertake a post separation parenting program or a parenting orders program. I made an order to that effect in February. It is of considerable significance, it seems to me, that the father has not yet undertaken that or, indeed, undertaken any steps towards it.
26.He said that he has been too busy preparing for these proceedings to attend to that. I do not understand his evidence about that. He is unemployed. He lives in a relationship. There are other children in his household but, no doubt, he has the support of his partner and on something as important as a post-separation parenting course, one would have thought that he would have made the time to comply with the Court’s orders so that the Court could be in a position to know that he had taken those recommendations seriously. He, seemingly, has not.
Whilst it can be accepted that the waiver principle already referred to would not apply in respect of the contents of the trial judge’s Reasons for Judgment, if these disclose bias, we find no substance in the father’s contention that the above paragraphs are motivated by, or reflect, bias against the father. The father’s contention overlooks some important factors. Whilst it is not in issue that neither parent had in fact undertaken the ordered program, there were important matters of contextual difference as between the parents relevant to the findings expressed by the trial judge as set out above.
For her part, the mother provided in her affidavit sworn 16 July 2014 an explanation as to why, despite her efforts to complete such a parenting program, she had not in fact done so. Her affidavit relevantly contained this:
PARENTING ORDERS PROGRAM
101.An order was made on 3 February 2014 that each party enrol in a Parenting Orders Program. With respect to this I made enquiries and booked in to a parenting program … where I was told that there would only be a six week waiting list. However I still remain on that list as no place has become available to date.
102.I also enrolled with [a children’s contact service]. I was later informed that it was [on the Sunshine Coast]. I remained on the waiting list for this service and was informed on 26 June 2014 that they were closing and I was provided further details of another service provider, Uniting Care and I have enrolled with this service.
There was no challenge to this evidence at the trial. Thus, on the mother’s unchallenged evidence she had enrolled with three different providers for such a program and remained on a waiting list for the program to be provided to her. It was not put to the mother at trial that she could have, or ought to have, done more to comply with the order. That is understandable as it is difficult to envisage what more, in practical terms, the mother could have done.
In contrast, the father’s position was revealed when the father was cross-examined by counsel for the ICL in the following exchange (Transcript of Proceedings 7 August 2014 page 65 lns 25-44):
COUNSEL: Sir, have you done the Parenting Orders Program
yet? ---MR [BARBER]: I have not done it yet, no.
COUNSEL: Why not? ---
MR [BARBER]: I have been trying to put this case together myself.
COUNSEL: No. Why not? ---
MR [BARBER]: I just haven’t found the time. I understand it’s important.
COUNSEL: You haven’t found the time? You’re an applicant for residence of [the child M]? ---
MR [BARBER]: I understand that.
COUNSEL: Right. So you haven’t been able to find the
time ---? ---MR [BARBER]: I’ve been trying to put this case together all by myself.
COUNSEL: --- to comply with a court order? ---
MR [BARBER]: I realise that, and I’ve also said in my affidavit that I haven’t done it yet either.
COUNSEL: Okay. Do you think you might need to go and do that to get some benefit from the course, sir? ---
MR [BARBER]: I think it will be very beneficial, yes.
COUNSEL: All right. So you know it’s beneficial, but you just haven’t been able to find the time? ---
MR [BARBER]: At the moment, no.
Further, it was Ms W who had recommended in her report (paragraph 128) that the parents attend a parenting orders program and it is not controversial that the February order was made to give effect to that recommendation. Having expressed that recommendation at paragraph 128 of her report Ms W’s report then contains this:
129.Mr [Barber] unilaterally retained [the child M] in May 2013 in the context of his concern that [the child] had been harmed. It is concerning to note however that Mr [Barber] has also not promoted contact or a relationship between [the child C] and Ms [Walford].
130.It is noted that Mr [Barber] expresses ongoing concerns as to Ms [Walford’s] ability to care for [M]. It is assessed that there is concern as to his ability to genuinely promote a relationship between [the child] and Ms [Walford].
131.In contrast, Ms [Walford] has demonstrated she is prepared to abide by orders and to ensure [M] has the opportunity for a relationship with Mr [Barber].
To this may be added the observation that there could hardly have been any question about the mother’s willingness to promote a relationship as between the child C and the father in circumstances where she had consented to final orders for C to live with the father.
It is thus clear that undertaking a parenting orders program, and the order for that to occur, had particular significance in the case of the father. The mother had satisfactorily explained why she had not yet undertaken the course, despite her best efforts, by the time of the trial. The father offered no meaningful or satisfactory explanation for his failure in that respect. The trial judge thus appropriately addressed the father’s failure in the Reasons for Judgment referred to. In the circumstances that was proper and cannot reasonably be construed as being motivated by some kind of “bias” against the father.
We therefore find no merit in any of Grounds 1, 2(a) and 2(d).
Grounds 2(b) and (c) – asserted errors of fact
The father agitated a complaint before us to the effect that an error of fact as to the period of his imprisonment upon his conviction of charges for common assault infected the proceedings. The father in fact was imprisoned for 2½ months for these convictions, rather than 2½ years. There is a reference to a period of imprisonment of 2½ years in subpoena documents obtained by the Department of Child Safety which were in evidence as Exhibit 1 and the father took us to that reference.
The father emphasised that Ms W had these records for the purpose of compiling her report and it was on that basis that the father essentially contended that Ms W’s opinion must have been infected by erroneous reliance upon the suggestion that the father was imprisoned for 2½ years, rather than 2½ months.
However, Ms W relevantly recorded this at paragraph 11 of her report:
11.In … March 2006 Mr [Barber] was convicted of the assault charges and sentenced to imprisonment, with the sentence to be suspended for 12 months after 2½ months served. …
(Emphasis added)
Thus the contention that any erroneous fact about this infected Ms W’s opinion is wrong.
In asserting that some error in this respect infected the trial judge’s reasoning process the father directed our attention to [13] and [14] of the trial judge’s Reasons. However, it became clear that the father in so doing confused findings by the trial judge with the trial judge outlining the case of each party. At [13] of the Reasons the trial judge refers to “… a great many number of allegations and counter allegations, one against the other” in relation to the parties. The trial judge then in [14] of the Reasons sets out some of the mother’s allegations including that it was the mother’s case that the father is “… a bully” and that he is “… violent towards those in his household.” The father apparently misunderstood these to be findings of fact or conclusions made by the trial judge. They were not.
Plainly what is contained in [14] of the Reasons is a summary in part of the mother’s allegations. The point is, that nowhere did his Honour adopt as a finding that the father had been imprisoned for 2½ years, nor did the trial judge express as his own finding that the father is “… a bully” or that he is
“… violent towards those in his household.”
The trial judge did not specifically refer within his Reasons to this particular topic in the sense of recording anything at all about the father’s convictions in 2006 or the length of his term of imprisonment. There is no substance in this complaint of error.
The father further contended that errors infected the trial judge’s approach concerning the issue of the child C’s time with the mother. The final orders made by consent on 26 July 2012 with respect to the parenting arrangements for C provided, relevant to this issue, that:
a)The child live with the father (order 8);
b)The child spend three days and three overnight periods (alternating weekly as to the actual days/nights to be spent) with the mother (order 9); and
c)The child “… not be exposed to or in the presence of the Maternal Grandmother” (and three other identified persons) (order 14).
The father contended before us that on his evidence before the trial judge his sole motivation in not allowing C to spend the ordered time with the mother was because the mother was not, in his view, complying with the injunction referred to in (c) above concerning the maternal grandmother. The father contended before us that his evidence before the trial judge was, relevantly, that if the mother was able to demonstrate that she would meet the terms of the injunction concerning the maternal grandmother he would have allowed the ordered time to continue.
The father’s complaint as advanced and re-framed in his argument of the appeal was that the trial judge did not properly take his evidence into account when the trial judge discussed this topic at [28] to [31] of the Reasons as follows:
28.The issue resolves to this: in respect of the father’s capacity to understand the need of his children to have a relationship with each of their parents, can the Court be satisfied that he has an appropriate capacity to facilitate that relationship? ...
29.He has taken the view, rightly or wrongly, that the mother was bringing [C] into contact with a person that she was not entitled to bring him into contact with, having regard to the terms of the parenting orders that exist in respect of [C]. However, just because the mother is in breach of the orders (the father alleges), does not mean that he himself can breach the orders relating to [C].
30.If he is or was affeared that the mother was in contravention of the orders because she was bringing [C] into contact with somebody that he ought not have contact with, then there were more appropriate steps that he could have taken, such as to bring an application for contravention to this Court, or an application to change the orders so that [the child’s] arrangements might be looked at afresh and reorganised, if that was appropriate. He did none of those things. He, simply, withheld the child from the mother, in breach of the order.
31.I reject, specifically, his evidence that the mother has been offered the opportunity to spend time with [C] since he made the decision not to let [C] go with her to her residence. Certainly, there may well have been occasions where he offered the mother the opportunity to spend some time with [the child] but it was always qualified. Ms [T] confirmed that there were always conditions attached to [the child’s] time with his mother. That is of grave concern.
We consider that the trial judge’s findings were clearly open to him and of particular relevance here are the conclusions the trial judge expressed in [31] of his Reasons. It was open to the trial judge to reject the father’s evidence.
Moreover, as counsel for the ICL emphasised, correctly in our view, cross-examination of the father at trial revealed that the father had adopted the position as at trial that, irrespective of the presence of the maternal grandmother or not, the father would not permit the child C to spend overnight time with the mother in compliance with the order. The relevant exchange was as follows commencing with counsel for the ICL seeking to elicit from the father his proposal for C to spend time with the mother (Transcript of Proceedings 7 August 2014 page 50 lns 45-46, page 51 lns 1-24):
COUNSEL: Well, what’s your proposal at this stage? When will be the next time? ---
MR [BARBER]: My proposal is open.
COUNSEL: No. Tell me when is the next date? ---
MR [BARBER]: The next date – any day she wants to see him ---
COUNSEL: Tomorrow? ---
MR [BARBER]: If she wants to, yes.
COUNSEL: Well, say she says yes. What can you arrange tomorrow? ---
MR [BARBER]: Well, I can arrange to have him down the park pretty well apart from, like, sort of 9 o’clock onwards to about 4-ish.
COUNSEL: All right. Could he stay overnight at his mother’s house? ---
MR [BARBER]: No, sir.
COUNSEL: Why not? ---
MR [BARBER]: In his order, he’s not allowed to be around the maternal grandmother.
COUNSEL: All right. If she’s not there, can he stay over? ---
MR [BARBER]: I would have to have proof that she wasn’t there.
COUNSEL: No. If she is not there, can he stay over at this mother’s house? ---
MR [BARBER]: Until he gets to know her again, no.
COUNSEL: Right. So no overnight time? ---
MR [BARBER]: Not at the time being.
COUNSEL: All right. So it doesn’t matter whether the grandmother is there or not? ---
MR [BARBER]: At the time being, no.
(Emphasis added)
It is thus, at best, disingenuous of the father to have asserted before us that the potential presence of the maternal grandmother was the limitation advanced in evidence before the trial judge on the operation of the subject orders for the child C to spend time with the mother.
We are not satisfied that any error attended the trial judge’s findings in [28] to [31] of the Reasons.
Finally on the topic of errors asserted by the father, it was his contention that the trial judge’s Reasons demonstrate inconsistency or contradiction in that, on the one hand the trial judge determined that the child M should spend only daytime periods of time with the father; “yet included overnight contact in the orders made” as the father puts it.
On an objective reading of the Reasons there is no such inconsistency or contradiction. At [35] of the Reasons the trial judge recorded his acceptance of Ms W’s opinion that the child M’s primary attachment is to her mother and thereafter the trial judge records his findings for the determination that there ought be an order for the mother to have sole parental responsibility and for the daytime periods of time the child was to spend with her father. That discussion is set out in [35] to [51] of the Reasons and includes, for example, acceptance of Ms W’s evidence as to a risk of psychological or emotional harm to the child by reason of her being exposed to the conflict that exists between her parents and the way in which that conflict manifests itself when the parents come into contact with each other (at [39] of the Reasons]).
The only provision the trial judge made for overnight time in the subject orders was for one night per year at Christmas time. The trial judge separately dealt with this topic as “… special occasion time …” in paragraphs [52] and [53] of the Reasons. At [52] the trial judge specifically addressed the prospect of further litigation between the parents and expressed the intention to pronounce further orders which would deal with “special occasion time” that the child M should spend with each of the parents, in that context. The trial judge then recorded at [53] of the Reasons the orders he would make in that respect including the order in respect of Christmas time as set out by the mother in her case outline document.
Nothing to which the father otherwise directed our attention in the course of argument of the appeal supports these grounds or establishes any of the matters contained in the father’s summary of argument filed in support of these grounds.
We find no merit in Grounds 2(b) and 2(c).
Conclusion
As we have found no merit in any of the Grounds of Appeal the appeal will be dismissed.
In the event that the appeal was to be dismissed each of the mother and the ICL sought an order for costs against the father.
The mother was legally aided for the trial and for the appeal. Likewise the ICL is funded by Legal Aid.
The father represented himself both at the trial and on this appeal.
The father informed us that he lives with his current partner and two children in Housing Commission accommodation. He said that he remains unemployed (as he was at the trial) but expected to return to employment by the end of this month.
The parties’ respective financial circumstances are a relevant consideration under s 117(2A) of the Act. Impecuniosity is not of itself a bar to an order for costs being made if the preponderance of other relevant discretionary considerations overwhelms that factor.
In all the circumstances of this case we consider that no other discretionary considerations sufficiently overwhelm that factor and there should be no order as to costs of the appeal.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Kent JJ) delivered on 27 May 2015.
Associate:
Date: 27 May 2015
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