Battison and Battison
[2015] FamCAFC 14
•17 February 2015
FAMILY COURT OF AUSTRALIA
| BATTISON & BATTISON | [2015] FamCAFC 14 |
| FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Where the appeal does not raise any question of general principle – Where findings available - Where history of non-compliance with orders and rules warrants a costs order being made – Appeal dismissed |
| Family Law Act 1975 (Cth): s 94AAA Family Law Rules 2004 (Cth): r 22.45 |
| APPELLANT: | Mr Battison |
| RESPONDENT: | Ms Battison |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Blundell & Associates |
| FILE NUMBER: | DGC | 2591 | of | 2010 |
| APPEAL NUMBER: | EA | 19 | of | 2013 |
| DATE DELIVERED: | 17 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ryan & Murphy JJ |
| HEARING DATE: | 4 February 2015 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1367 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Battison in person with the assistance of an interpreter |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | McNeilly Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance for or on behalf of the Independent Children’s Lawyer |
Orders
The Application in an Appeal filed on 30 January 2015 be dismissed.
The appeal be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal within one (1) month of the quantum of costs being agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Battison & Battison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA19 of 2013
File Number: DGC 2591 of 2010
| Mr Battison |
Applicant
And
| Ms Battison |
Respondent
SHORT REASONS FOR DECISION
The court gives its reasons in this appeal in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”).
The Full Court is of the opinion that the appeal does not raise any question of general principle.
The court’s reasons in short form are set out below.
Introduction
Mr Battison (“the father”) appeals against final parenting orders made by Federal Magistrate Coakes (as his Honour then was) on 19 December 2012. The parenting orders relate to three children: J who was born in 2005, W who was born in 2008 and E who was born in 2010. Ms Battison (“the mother”) is the children’s mother and the respondent to the appeal. It needs to be understood that the father is not J’s father. The child J has not met his father who, as far as the mother knew, lived abroad. Orders dispensing with the service of process on J’s father were made by the Federal Magistrate and in relation to the appeal.
By an Application in an Appeal filed on 30 January 2015, the mother applies for an order pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the rules”) that the appeal be dismissed as a consequence of non-compliance with an order which required the father to file and serve a summary of argument and list of authorities. Should that application not find favour, the mother resists the appeal and seeks to uphold the orders.
An Independent Children’s Lawyer (“ICL”) represented the children’s interests before the Federal Magistrate and provided written submissions in relation to the appeal. It is submitted by the ICL that the appeal should be dismissed.
The Federal Magistrate ordered that the mother have sole parental responsibility for the children, that they live with her and, subject to the father completing an accredited parenting course, spend time with the father four times a year for two hours at a contact centre near to where the mother and children live.
The father sought orders that the children live in Melbourne and have at least an equal amount of time with him as they would with the mother.
In order to understand the significance of the father’s application, it needs to be understood that although the parties met in Sydney which is where they established their first home, not long after they married in December 2007, they moved to Melbourne. They remained in Melbourne until they separated on a final basis on 12 May 2010. At separation, the father removed W from the family home and kept him until early October 2010 when, in accordance with an order of the Federal Magistrates Court, the child was restored to the mother’s care. In the meantime, she and the two other children had moved to a mid-north coast town in New South Wales to live with the mother’s parents. The mother and all three children have lived there ever since.
Interim orders were made which enabled the father to spend time with the children at a contact centre at Port Macquarie. It is common ground that he has not spent time with the children since April 2011.
It is apparent that the father’s application that the children return to Melbourne to live failed as did his application that they live with him at least half of the time. As the restriction on the children’s time with the father would suggest, the hearing before his Honour involved serious issues concerning the parties’ parenting capacity, child protection and the nature of the children’s relationships with each of the parties.
The application for dismissal of the appeal
Before we discuss the mother’s application that the appeal be dismissed as a consequence of non-compliance with an order (r 22.45(1)), it is appropriate to observe that in relation to the appeal, the father has an unfortunate history of non-compliance with the rules and orders. That the magnitude of his default has been fairly serious can be established by a few examples. The father did not file his Notice of Appeal within the time prescribed by the rules and was only able to institute his appeal because, on 22 February 2013, he was given an extension of time. As a consequence of his failure to comply with further directions, his Amended Notice of Appeal filed on 20 March 2013 was deemed abandoned. With the consent of the mother and ICL, an order was made on 26 June 2013 for the appeal to be reinstated.
Directed to file a summary of argument and list of authorities on or before 16 May 2014, the father did not. His failure to do so prompted an application by the ICL in similar terms to the current application. However, before that application and the appeal (both of which were listed for hearing on 19 August 2014) were called on for hearing, a Notice of Discontinuance was filed by the father’s then solicitor.
On the father’s application and for reasons published on 21 November 2014, the father was given another extension of time to file a Notice of Appeal against the orders made by the Federal Magistrate with the steps taken in the discontinued appeal deemed to be steps taken in the fresh appeal.
Against that background, it is with some dismay that we record that notwithstanding our attempts to obtain an explanation from the father about why he still had not filed a summary of argument or list of authorities, he refused to tell us. We can only infer that whatever the reason might be, it would not be of assistance to the father.
We agree with the submission made by counsel for the mother that the combined effect of grounds of appeal which lack particularity and are themselves deficient and in the absence of a summary of argument, there was a real risk of injustice to the mother if the appeal was permitted to proceed. Of course, that putative risk could be addressed, if necessary, through an adjournment on terms if the father attempted to raise matters which took counsel for the mother by surprise.
Ultimately, we determined we would dismiss the mother’s application and that the appeal should proceed forthwith. In our view, the gravity of the subject matter of the appeal, concerning as it did the best interests of children who, if the orders remained undisturbed would have very little contact with the father, meant that determining the appeal on its merits would serve rather than impede the interests of justice. As it transpired, nothing raised by the father surprised or caused any prejudice to counsel for the mother and the putative risk of an injustice to the mother did not eventuate.
The appeal
The mother’s application having been dismissed, we gave the father the opportunity to make submissions in support of his grounds of appeal. We will consider the grounds in the order in which they were addressed.
Ground 1 – the learned Magistrate erred in conducting the hearing in my absence
The transcript of the hearing before his Honour demonstrated that on the first five of the six hearing days over which the hearing at first instance was undertaken, the father was present and actively involved in the hearing. At the conclusion of the fifth day, the hearing was adjourned part-heard to
9 May 2012. Prior to the resumption of the hearing, an application was made by the father to attend by video. That application was refused prior to
9 May 2012 with the father, at his election, permitted to appear by telephone. It follows that the ground of appeal misstates the facts.
However, it is common ground that the father was not present on
19 December 2012 when his Honour published his reasons for judgment and made the orders under consideration in this appeal. There was no submission made by the father, nor could there be, to the effect that in proceeding as he did in the absence of the father on 19 December 2012, his Honour erred.
Ground 1 must fail.
Ground 2 – the learned Magistrate erred in not accepting the evidence of Ms C and others
Although as presented the ground referred to other unspecified witnesses called in the father’s case, as argued, the challenge concerned the manner in which
his Honour treated the evidence given by Ms C. Ms C, who is the father’s sister-in-law, affirmed an affidavit on 19 August 2010 which was read in the father’s case. However, when informed that Ms C was required for cross-examination, the father said that he did not know where his witness lived, she was afraid of the mother and no longer wished to be involved.
Although it would have been open to his Honour to exclude Ms C’s written evidence, he did not do so and between [88] and [125] his Honour considered her evidence in the context of the other evidence given on the same subject matter. Ultimately, Ms C’s evidence was not preferred. There can be no doubt that the approach adopted by his Honour was available to him.
In oral addresses, the father contended that his Honour should have taken steps to address Ms C’s asserted concerns about the mother and ensured she could attend court safely. As his Honour observed, Ms C did not in her affidavit express concerns about giving evidence or say she was afraid of the mother. However, more tellingly, there was no application by the father that arrangements of that type be made and in circumstances where the father informed his Honour he no longer had his sister-in-law’s telephone number yet it was clear her telephone number had not changed, his Honour was entitled to treat the father’s assertions that Ms C was afraid of the mother with the scepticism evident at [92] of his reasons.
There is another reason why this ground must fail, namely, there is no challenge made to his Honour’s finding at [125] set out below:
I find on the balance of probabilities that the father did not make any attempt to require [Ms C] to attend Court to give evidence for the reason that he was aware her evidence in relation to the passport matter was unlikely to support his case. It is clear from the mother’s evidence, which I accept, that [Ms C] was readily contactable and not willing to come to Court.
Or to his Honour’s findings at [173] – [175] which are set out below:
173.The father was cross examined in relation to an incident reported to Police in the early hours of Boxing Day, 26 December 2005 in which the father is described in the COPS report as [Mr Battison] and which the father readily acknowledged refers to him. When shown the COPS entry the father declined to make any comment in response to a series of questions by [Mr T] and when reminded by me that he was obliged to answer the questions said that he could not remember a number of matters.
174.When it was suggested to him that [Ms C] was the victim, the father avoided answering the question but was eventually obliged to concede that the person referred to was [Ms C], and when it was put to him that the allegations he assaulted her by slapping her across the nose three or four times, pushed her, set alight to some photograph albums with petrol and again hit [Ms C] in the mouth whilst on a journey by car to Greystanes, denied each of the allegations. The name [“Ms C”] is spelt differently in some exhibits but I am satisfied it is [Ms C] irrespective of how her first name is spelt.
175.It is again significant that the father was unable to secure the attendance of [Ms C]. There is a very strong inference to be drawn that the complaints to the Police by [Ms C] found in the COPS entries are true and that the father well knew [Ms C] would not have assisted his case had she been questioned as to such matters by either Counsel for the mother or the Independent Children's Lawyer. Further, for reasons I have given, the failure by [Mr Battison] to call [Ms C] has not been satisfactorily explained by him. (footnote omitted)
Error as alleged by ground 2 has not been established.
Ground 3 – the learned Magistrate erred by not imposing sanctions on the respondent for breaches of orders
As we understood the father’s submissions, by this ground he complains that his Honour erred by failing to impose a sanction on the mother for contravening orders which enable him to speak to the children by telephone.
The orders sought by the father are set out at [12] – [21] of the reasons for judgment. There is no reference to an application from the father that the mother be dealt with for contravening parenting orders. This is because no such application was made by the father. Self-evidently, this ground must fail.
Ground 4 – the learned Magistrate made a decision that was contrary to the evidence or the weight thereof
Afforded the opportunity to provide particulars which might support this challenge, the father gave none. For that reason alone, this ground must fail.
However, it is useful to point out that not only did his Honour preside over a hearing which lasted six days, he published reasons for judgment which comprised 72 pages of detailed analysis of a large volume of evidence.
His Honour’s findings of fact coincided with the factual substratum upon which a court appointed expert, Dr R, expressed an opinion concerning the arrangements which would best promote the children’s interests. Dr R, who is a child and family psychiatrist, provided a written report which recommended that:
1.The children live with their mother.
2.The children spend time with their father in a contact centre, as discussed.
3.[The mother] continue to stay engaged with family support services and be protected by an AVO.
4.[The father] attend a parenting course, aimed to improve his understanding of children’s development and reflect on his parenting style.
(Dr R’s Report, dated 14 July 2011, page 16)
Dr R was cross-examined at some length. His Honour determined that he would accept the expert’s opinion and afford it considerable weight. He was entitled to do so.
This ground cannot succeed.
Ground 5 – the learned Magistrate took into account irrelevant matters
It is the father’s contention that his Honour erred by taking into account events that occurred prior to the hearing, in particular, those concerning his criminal and quasi-criminal antecedents. In relation to the father’s history of anti-social behaviour, his Honour having undertaken extensive analysis of the evidence, came to the following conclusion at [176]:
The evidence establishes that the father has committed acts of domestic violence including assault, intentional damage to and destruction of property, coercive and controlling behaviour and derogatory taunts against at least two female partners.
According to the father, his criminal record and COPS history tendered by counsel for the mother are factually wrong and there exists a document which would show he “… does not have a bad criminal record”. Whatever that document might be, it was not provided to his Honour. In relation to the record of the father’s criminal history tendered by counsel for the mother, given the opportunity to object to its admission into evidence, his Honour recorded, at [160], that the father in fact consented.
As to the contention there might be inaccuracies in the tendered document, in particular, concerning the existence of warrants and apprehended violence orders against the father, his Honour took into account, at [162], that “[t]he father did not produce any documentary evidence in support of his contentions”.
As we have already mentioned, this hearing at first instance was conducted over six days. It was undertaken in three tranches over a period of approximately eight weeks. The issue concerning the accuracy of the father’s criminal record arose during the initial days of the hearing as a consequence of which he had ample time to collate and present whatever documents he now suggests may exist and would show that his Honour’s findings were wrong. Suffice to say, the father placed nothing before us which would lend support to the challenge made by this ground. It must fail.
Ground 6 – the learned Magistrate failed to take into account relevant matters
No submissions were made by the father in support of this ground. On our own consideration of the evidence we are unable to identify matters relevant to the disposition of the proceedings which his Honour failed to consider.
This ground is not made out.
Ground 7 – the learned Magistrate failed to afford the applicant natural justice
Asked to provide particulars for this complaint, the father said his Honour erred in refusing to grant an adjournment of the hearing. He explained that on the morning that the hearing commenced, he withdrew instructions from his solicitor and, at the commencement of the hearing, applied for an adjournment.
Questioned by us about whether that submission accurately reflected the facts, the father conceded he withdrew instructions prior to his solicitor filing a notice of ceasing to act on 1 March 2012. Although the father did not concede that the transcript of hearing before his Honour does not record an application by him for an adjournment, from our own reading of the transcript we are satisfied that there was no adjournment application.
The father then argued that the denial of natural justice occurred when
his Honour refused his application for an adjournment on 9 May 2012. That is, the sixth and final day of the hearing.
As we mentioned earlier, prior to the resumption of the hearing on 9 May 2012, an application was made by the father for permission to attend by video link. That application was refused and it would appear that a subsequent application by the father to attend by telephone was granted.
However, when the hearing on 9 May 2012 commenced it would appear that the telephone line was initially compromised which prompted complaint by the father and counsel for the ICL. After those complications were resolved,
his Honour refused the father’s application for an adjournment so that the hearing could resume at a later date with the father in attendance by video.
From our own review of the transcript of the hearing, it is apparent that the hearing proceeded with the participation of all parties and without any suggestion of ongoing difficulty with the telephone line. Witnesses were cross-examined and gave brief evidence in chief. There is nothing in the transcript of the hearing of 9 May 2012 indicative of a denial of natural justice to the father.
This ground is not made out.
Conclusion and Costs
The father has failed to establish error by the primary judge and the appeal will be dismissed. In the event the appeal was dismissed, an application was made by the mother that the father pays her costs.
The father opposed an order for costs and argued that his financial circumstances were such that he could not pay any ordered costs. He explained that he is in receipt of Centrelink benefits and that he resided with his partner in a home she owned.
We are conscious that the mother is in receipt of a grant of legal aid and observe that as a consequence of the manner in which the father has undertaken the conduct of his appeal, greater than usual costs are likely to have been incurred in the mother’s case. In other words, the father’s repeated failure to comply with the rules and orders made for the conduct of the appeal weighs in favour of an order for costs as sought by the mother.
The father’s appeal has been wholly unsuccessful and was demonstrably without merit. That he cannot afford to pay a costs order does not warrant that no order be made.
We will order the father to pay the mother’s costs of and incidental to the appeal.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan and Murphy JJ) delivered on 17 February 2015.
Associate:
Date: 17 February 2015
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