Baynor & Emmitt
[2024] FedCFamC1A 164
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Baynor & Emmitt [2024] FedCFamC1A 164
Appeal from: Baynor & Emmitt [2024] FedCFamC2F 531 Appeal number: NAA 120 of 2024 File number: SYC 8506 of 2017 Judgment of: CAMPTON J Date of judgment: 20 September 2024 Catchwords: FAMILY LAW – APPEAL – Where the father requires leave to appeal from an order dismissing his application to vary final parenting orders pursuant to the principles in Rice v Asplund (1979) FLC 90-725 – Where the father’s complaints as to procedural error are not made out – Where the complaints were, in reality, as to errors of fact and weight – Error of fact established – Where that error is not material to the determination – Where contended errors as to weight are not made out – Where the father’s dissatisfactions as to the role and conduct of the Independent Children’s Lawyer do not identify appellate error – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 65DAAA, 69ZW, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
De Winter v De Winter (1979) 29 ALR 211
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lasso & Malaka (2022) 65 Fam LR 423; [2022] FedCFamC1A 130
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Nootkamp & Brulja [2023] FedCFamC1A 90
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Wynn & Danilov [2023] FedCFamC1A 149
Number of paragraphs: 55 Date of hearing: 18 September 2024 Place: Sydney The Appellant: Litigant in person Counsel for the First Respondent: Mr Thomas Solicitor for the First Respondent: Richard Cummins Solicitor Solicitor for the Second Respondent: Kent Attorneys Counsel for the Independent Children's Lawyer: Ms Tabbernor Solicitor for the Independent Children's Lawyer: Dorter Family Lawyers & Mediators ORDERS
NAA 120 of 2024
SYC 8506 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BAYNOR
Appellant
AND: MS EMMITT
First Respondent
MS VIETH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 21 May 2024, as amended on 31 July 2024, is dismissed.
2.The appellant pay the second respondent’s costs fixed at $8,597 within 28 days.
3.The appellant pay the Independent Children Lawyer’s costs fixed at $4,901 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baynor & Emmitt has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of a Notice of Appeal filed 21 May 2024, as amended on 31 July 2024, Mr Baynor (“the father”) subject to a grant of leave to do so, appeals, from:
(a)An order made on 24 April 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing his Amended Initiating Application to vary final parenting orders; and
(b)Procedural orders made that day as to the filing of material as to costs.
Ms Emmitt (“the mother”) and Ms Vieth (“the maternal grandmother”) oppose the appeal. The Independent Children’s Lawyer (“the ICL”) also opposes the appeal.
For the reasons that follow the Notice of Appeal as amended on 31 July 2024 will be dismissed.
BACKGROUND
On 31 July 2019 the parties entered consent orders during a defended final hearing, providing:
1. That the [father] and [mother] have equal shared parental responsibility for the child of the relationship [X] born […] 2014 (hereinafter referred to as "[the child X]").
2. That [the child X] live with the mother and the maternal grandmother (intervenor) in the maternal grandmother's home.
a. That [the child X] spend time with the father as follows:-
b. each Friday from after pre-school/school or 3 pm if a non school day until 5 pm Saturday.
c. at such other times as agreed between the parties.
3. That changeover shall occur as agreed between the parties but failing agreement the father collect [the child X] from pre-school/school and the mother collect [the child X] from the father's residence.
4. That the mother shall comply with all recommendations given by her mental health care practitioners including but not limited to taking her medication as prescribed and attending all appointments as scheduled by her mental health care professionals.
5. That the mother shall reside with the maternal grandmother at all times that [the child X] is in her care.
6. That the maternal grandmother shall inform the father in the event that the mother is hospitalised as a result of her mental health as soon as practicable and within 24 hours of such hospitalisation.
AND THE COURT FURTHER ORDERS THAT:
7. All extant applications otherwise be dismissed.
AND THE COURT NOTES THAT:
A. It is Noted that should the Mother be unavailable due to hospitalisation to care for [the child X];
i. the father is to be notified immediately by email/SMS;
ii. the maternal grandmother will facilitate extra time for the child to spend with the father (including overnight time) and notify the father of any existing arrangements that the child is required to attend to;
iii. the father undertakes to ensure the child’s routine is maintained.
(As per the original)
The father’s Amended Initiating Application filed on 22 November 2023, dismissed by the primary judge, sought:
2. That the orders made on 31 July 2019 be discharged.
3.That the Applicant Father and [the mother] have equal shared parental responsibility for the child.
4. That the child shall live with the father at the father’s residence.
5.That the child shall spend no time with the [mother] and [the maternal grandmother] until such time the mother provides to the Applicant Father a psychological assessment or psychological report, confirming her parenting capacity of the chid and is able to act in the best interest of the child.
6.That the child discontinues counselling with [the child’s counsellor] and attends a psychologist to obtain treatment and advice on his development, well-being, and mental health concerns.
7.That time with the mother shall be re-visited in the event Order 4 has been complied with.
Directions were made on 23 November 2023 listing for hearing, by way of preliminary enquiry, as to whether circumstances had materially changed since the orders were made on 31 July 2019 to warrant another trial to consider a revision of those orders applying the principles identified in Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”)
From 6 May 2024 the principle established by Rice v Asplund has been codified by amendments in s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”). That new statutory provision is not relevant to this appeal because if appealable error is demonstrated, the father seeks the matter be remitted to for rehearing before a judge of Division 2 other than the primary judge.
The gravamen of the father’s variation application was that there has been a material change in circumstances since the 2019 orders to warrant a further parenting enquiry, being a deterioration of the mother’s mental health requiring repeated hospitalisations that in turn left the child in the care of the maternal grandmother for long periods of time.
The findings of the primary judge, unchallenged on appeal, included:
11It was known at that time that there were issues around the mother's mental health, which is obvious because the orders were framed to accommodate that. For example, order 4 requires the mother to comply with the recommendations of health-care professionals. The notations to the Consent Orders anticipate that there may be times the mother is not available to care for [the child X] when she is in hospital.
12 It does not appear to be a matter of any dispute that the mother was diagnosed with [a mental health condition]. Exactly when that happened seems to be of some contest, although having had regard to the numerous medical documents in front of me, I do not really understand how that can be so, because there is on a number of occasions reference to the diagnosis occurring in 2017. Even if it was 2020, as the father put in submissions, whether or not the particulars of the mother's diagnosis were clear, her mental health condition was clear at the time the Consent Orders were made. That hospitalisations may be required was clear because that happened before the orders were made on three occasions. There does not appear to be any contest about that, and those occasions all occurred within the knowledge of the father post the relationship between them commencing.
13 The father sets out in his case outline the times that the mother has been admitted following the Consent Orders, that is [mid] 2021 to [mid-late] 2021, [early] 2023 to [early-mid] 2023 and [mid-late] 2023 to [late] 2023, and my understanding is that the last occasion was not a voluntary admission. The mother was scheduled on that occasion, unlike other admissions that she has had. I will come to that shortly.
The father believes the mother’s presentation and hospitalisation was having a negative impact on the child’s mental health. He cited that he does not have a good relationship with the maternal grandmother, saying “she refuses to deal with me or acknowledge me as his father”. He identified that there had been “issues” with the interpretation of the final orders when he “exercised [his] rights” seeking additional time with the child during periods of the mother’s hospitalisations, generating conflict between he and the maternal grandmother.
The mother, the maternal grandmother, and the ICL contended that the material change, as asserted by the father, was not established.
The primary judge, by ex tempore reasons delivered on 24 April 2024, found there were no materially changed circumstances. By Order 1 as made, dismissing the father’s amended application, the primary judge found:
The mother’s mental health
17 The evidence makes it clear that the mother has been engaged with mental health treatment over a considerable period of time, both before and after the Consent Orders were made. I have referred to her being scheduled in [mid-late] 2023. A community treatment order was imposed at that time which required the mother to take medication. It does not appear on the evidence I have before me that post-[mid-late] 2023 there has been any similar issue.
18 The mother's health treatment involves the [B Mental Health Service] or the [C Hospital] which all operate under the same health umbrella. This would suggest that the mother has continued treatment with the same service for a long period of time. Whilst there may have been ups and downs for her, which is not surprising in dealing with a mental health condition, she has been consistent in seeing the same people. She has been compliant generally, although not at all times. Again, unsurprising at times that she has been acutely unwell. It seems that those treating her are well across the problems that the mother has, and deal with that competently. By and large that keeps her on a pretty even keel, it would seem to me.
19 There is no suggestion that since [mid-late] 2023 the mother has not been compliant with treatment, nor that apart from that one occasion, she has not otherwise been compliant. Although there is some suggestion she may not have been, the evidence does not support a finding about that.
20 I accept as a matter of human experience, that litigation is stressful and would not assist the mother's mental health. It is raised in the notes of those treating her. She has talked about finding litigation stressful, dealing with [the child X’s] father stressful, which has caused her to worry, become anxious, not sleep, and those things have exacerbated her mental health condition. It is referred to, for example, in Exhibit M1 in reference to an admission in [early] 2023. The notes refer to “[Ms Emmitt’s] most recent admission was in [early] 2023 a relapse of her illness after she did not sleep for two days due to the stress of the court case”.
21 Looking overall at the history of the mother's health from the documents tendered, it appears she has had a history of mental illness since 2017. She has been treated competently for that illness. She has generally complied with treatment. Her health has been up and down at times, but reasonably consistent. The evidence, in my view, does not support any submission that her health has deteriorated significantly since the time the Consent Orders were made in 2019.
22 The Consent Orders clearly contemplated the mother being hospitalised and her health being at times up and down. She is required to live with her mother so that there is another person able to care for [the child X]. The maternal grandmother has the benefit of a live with order, and the authority that gives her with respect to dealing with [the child X] should the mother not be able to do so. It's also clear from the history of litigation that it has caused her stress, anxiety and exacerbated her condition. I do not accept that ground would be a basis for reopening these proceedings.
…
[The child X’s] mental health
…
30…It may well be, and again this would not be surprising, that [the child X] may find communicating with his mum from his father's care difficult. It would be unsurprising that [the child X] is aware of conflict between his parents, and that certainly may have an impact on his ability to talk to his mother whilst he is with his father if she is hospitalised.
31 The father's evidence in this area does not in any way satisfy a finding that there has been a significant and substantial change as regards [the child X’s] mental health.
…
The relationship between the parties
…
36 Whilst the notation refers to additional time, I understand that additional time has occurred from time to time between [the child X] and his father on the evidence. It is not surprising though that the father's attitude to the notation has caused problems in his relationship with the mother and grandmother. Whether that amounts to a significant or substantial change in circumstances has to be viewed by standing back and considering what that relationship was like overall.
…
38 There have been problems around the father requiring changeover to happen at his front door rather than [multiple] floors down, at the base of his building. It is a problem that would seem to have been of the father's making, and one that he could fix. It is difficult to understand why it became an issue for him given [the child X] has to go down the stairs either way. It would be difficult to see that as being anything significant or substantial.
…
40 The father’s counsel referred in submissions to the attitude of the maternal grandmother, in blaming him for the mother's mental health problems. Looking at the material as a whole there is no evidence of a causal connection, in terms of the root cause of the mother having [a mental health condition]. What there is a connection to is, as I have referred to, that stress and anxiety exacerbate her condition. The stress of litigation and the concern about her child's care, one could imagine, would have an enormous effect on the mother. Her worries would impact on her level of functioning in terms of her mental health. Those are arguments in favour of these proceedings finishing and not going any further, rather than anything else.
41 Looking at the evidence the father relies on with respect to the third limb, I am not satisfied that there is any significant or substantial change to the attitude of the parties or their communication such that it would be in [the child X’s] best interest for litigation to be furthered.
(Footnotes omitted)
The appeal from orders not capable of supporting an appeal
Further orders were made by the primary judge as to the filing of evidence as to costs. These orders are not “judgments” from which an appeal validly lies pursuant to s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) as they do not determine the parties’ rights in any material respect (Commonwealth v Mullane (1961) 106 CLR 166 at 169). Rather, they are merely procedural directions to regulate the future costs application. In so far as the father seeks to appeal from these orders, the appeal is not competent. Only Order 1 made dismissing the father’s amended application can support an appeal, subject to the father obtaining leave.
THE APPEAL
The grounds of appeal, as contained in the Amended Notice of Appeal, are:
Procedural Errors
1. False Attribution of an Apprehended Domestic Violence Order (ADVO):
The Judge introduced a reference to an ADVO, falsely attributing it to the Father without substantiating where this existed in the evidence presented.
2. False Statements Regarding Visitation Compliance:
The court relied on incorrect statements regarding the Father's compliance with visitation orders, which were contradicted by police records and available evidence.
Failure of the Independent Children's Lawyer’s (ICL) Duty of Care and Legal Obligations to the Court
1. Neglecting to Act in the Best Interests of the Child:
The ICL failed to report and act on known instances of domestic violence within the child’s living environment.
2. Failure to Adequately Consider Presence of Domestic Violence:
The ICL did not adequately investigate and impartially present available evidence of domestic violence in the home in which the live with order exists..
3. Failure to Conduct Independent Child Impact Assessment:
The ICL failed to ensure an independent assessment of the child’s needs was conducted before the trial.
4. Misrepresentation and Omission of Critical Evidence:
The ICL and the court omitted critical evidence from the Appellant’s Affidavit regarding potential risks to the child’s safety.
(As per the original)
LEAVE TO APPEAL IS REQUIRED
Section 28(1)(b) of the FCFCOA Act imposes the requirement of leave to appeal from prescribed judgments of the Federal Circuit and Family Court of Australia (Division 2), being identified in reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) as including an interlocutory decree (other than in relation to a child welfare matter).
Leave to appeal is not required for orders in child welfare matters. Parenting orders are child welfare matters within the meaning of s 28(1) of FCFCOA Act and reg 4.02 of the Regulations. Regulation 4.02(2) provides:
4.02 Leave to appeal required for some family law and child support proceedings–prescribed judgments
…
(2) For paragraph (1)(a), a child welfare matter is a matter relating to the following:
(a) the person or persons with whom a child is to live;
(b)the person or persons with whom a child is to spend time or communicate;
(c)any other aspect of parental responsibility (within the meaning of Pt VII of the Family Law Act) for a child.
As identified during the hearing of the appeal, the order under challenge, being an order dismissing an application, does not fall within the regulatory definition of a “child welfare matter” and is not a parenting order (Nootkamp & Brulja [2023] FedCFamC1A 90). That order did not finally dispose of rights to vary the 2019 parenting orders. Regard must be had to the legal rather than the practical effect of the order (Lasso & Malaka (2022) 65 Fam LR 423 at [17] citing Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248; Wynn & Danilov [2023] FedCFamC1A 149). Hence, leave to appeal from the order under challenge is required.
The father did not seek leave to appeal in his Amended Notice of Appeal. His Summary of Argument did not address the issue. During the hearing of the appeal the father was consensually granted leave to make an oral application for leave to appeal from Order 1 made 24 April 2024.
Whilst the discretion to grant leave is unfettered, generally the Court will look to see whether the decision is attended with sufficient doubt so as to justify leave, and whether a miscarriage of justice would occur if leave were not granted, supposing it to be wrong (Medlow & Medlow (2016) FLC 93-692 at [57]). The question of the key interests of justice in this appeal relies upon the issue of whether the decision is attended by sufficient doubt. That in turn relies on the identification of error by way consideration of the grounds of appeal relied upon by the father.
As explained below, on consideration of the grounds of appeal, the father has not demonstrated doubt as to the correctness of the order dismissing his Amended Initiating Application filed 22 November 2023, nor could he point to any substantial injustice by way of the said order. Leave to appeal will be refused.
AN APPEAL FROM A DISCRETIONARY DETERMINATION
A presumption exists at law that a primary judge’s decision is correct, and the onus rests on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621).
The limits upon appellate interference with a discretionary order are well settled (House v The King (1936) 55 CLR 499 at 504–505) (“House”)). The weight given to evidence in the exercise of discretion is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
The purpose of a Notice of Appeal is to identify with precision the errors that the father, as the appellant, asserts were made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). No application was made to amend the Notice of Appeal. To the extent that the father’s oral submissions extend beyond the grounds as contained in the Notice of Appeal, they are outside the ambit of the appeal.
Grounds 1 and 2
The father’s Summary of Argument introduced and constructed his appeal as being “based on the grounds of procedural error and lack of procedural fairness”. Grounds 1 and 2 are headed “Procedural Errors”. During his oral submissions he made complaint as to documents originating from the police being adduced into evidence by tender of the ICL. He said that he was given “15 minutes to read 16 pages” of these police documents, and that he had not read them until they were reproduced in the digital appeal book. It is uncontroversial that the relevant police material was produced pursuant to an order made by s 69ZW of the Act on 12 December 2022, more than 15 months prior to the hearing before the primary judge. The legal representatives of all parties were given leave to inspect that material. The police material was identified in the Case Outline of the ICL filed 22 April 2024 and was the subject of submissions (Transcript 24 March 2024, p.41 line 18 – p.42 line 17). The father’s submission that he had inadequate or insufficient opportunity to consider the material adduced into evidence by tender through the ICL over a period of in excess of 15 months is not accepted.
The father otherwise failed to identify either in his written submissions or orally, any reference to matters that would traditionally be considered as a miscarriage of justice arising from a failure to afford procedural fairness.
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). The father did not complain that he was denied the opportunity to present evidence and argument. The primary judge considered his affidavit evidence, the content of his written submissions document, and his oral submissions made by his counsel. He was given every opportunity to prosecute his case.
Ground 1 makes complaint as to an error of fact. Ground 2 complains inferentially as to weight. Interpretations of evidence do not manifest a denial of procedural fairness. Nor does the failure to accept the submissions made by the father.
As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). The failed to demonstrate an appellate procedural error.
Ground 1 – False Attribution of Apprehended Domestic Violence Order (ADVO)
The paragraph of the reasons subject of complaint in this ground reads:
37 I understand that it is common ground that there was an Apprehended Domestic Violence Order (“ADVO”) prior to the Consent Orders. One would expect that to be a fairly low ebb in communication between parents. There has been no further ADVO since that time, as I understand it.
The father correctly submitted on appeal that there was never an ADVO between he and either the mother or the maternal grandmother.
The ICL properly conceded two factual errors of the primary judge. The first was the fact of a prior ADVO. The second was the prior ADVO being assumed, or understood, to be as between the parents. Neither the mother nor the maternal grandmother identified the factual errors in their Summaries of Argument. During the hearing of the appeal the mother did not concede that the primary judge had made any factual error, seeking to identify that the primary judge had adopted a “common matrix of facts agreed” between all the parties. The maternal grandmother similarly did not concede that the primary judge had made any factual error, but adopted the submissions of the ICL, thereafter being unable to articulate the logical inconsistency between each position.
The findings of the primary judge in the first two sentences of [37] of the reasons were not available. They are factual mistakes and are in error. The father’s contention that the primary judge “falsely attributed” an ADVO made prior to the 2019 consent orders “to him” does not reflect the erroneous finding. The primary judge’s understanding was that an ADVO had applied between the parents. The father assumed the primary judge attributed the ADVO to himself.
Some background is required to give context to the origins of the factual errors.
Firstly, the affidavit evidence contained no mention of ADVO between any party. Over 265 pages of documents were adduced into evidence during the hearing, including the bundle tendered by the ICL produced pursuant to the s 69ZW (as the provision then was) order originating from the NSW Police. Those documents record three incidents of family violence that were notified to the police in 2015 and 2016 and that the police took no action on any of those occasions. That said, the documents record conclusions that may be inconsistent, absent particulars, being a response “no” as to a prior ADVO between the victim and person of interest, then “yes” in response to whether there have been any domestic violence events between the victim and person of interest.
Secondly, in submissions counsel for the maternal grandmother said:
[COUNSEL FOR THE MATERNAL GRANDMOTHER]: We submit that that’s the most telling test of what he actually wants here. He’s just not happy with the orders, so he wants a change. He’s not concerned that [the child X] isn’t seeing his mother. If that’s the case, he would have talked to his son, ensured that he took her to hospital, or found other ways of doing that, perhaps in a different environment while she was hospitalised. But in any event, paragraph 2B has always been known and addressed. Moving down the list, the next one under the heading, The Applicant Father’s Case:
There has been a significant change in the deterioration of the mother.
I’ve already addressed that in 2A above. The next one:
There has been a significant change in the child’s mental health.
There’s no evidence of that, with the greatest of respect, your Honour. And in fact, that wasn’t addressed by learned counsel on behalf of the act of the father at all today. And the final one appears to be that there’s a communication issue between the parties. If that is a change – and we say it’s not – it’s not a significant change.
[THE PRIMARY JUDGE]: They previously had an AVO. Isn’t that correct?
[COUNSEL FOR THE MATERNAL GRANDMOTHER]: Exactly, your Honour.
[THE PRIMARY JUDGE]: So I couldn’t quite follow how that could happen – that that could be a deterioration.
[COUNSEL FOR THE MATERNAL GRANDMOTHER]: I just want to address what’s in their submissions, your Honour.
[THE PRIMARY JUDGE]: Yes. No. I understand that, but I mean, I would have thought that might be – I mean, that seems to me significant. Prior to the orders being made, there were apprehended violence orders in place, as I understand it. Yes. Okay. What’s the next thing?
(Emphasis added) (Transcript 24 April 2024, p.32 lines 14–45)
Thirdly, when the primary judge did raise the fact of a prior ADVO, none of the parties, including the father, identified that it was in error. The father appeared with the benefit of counsel who made submissions in reply after those of the maternal grandmother. His counsel did not identify the errors or attempt to correct the primary judge. Further, after the ex tempore reasons were delivered, the parties were given the opportunity to identify any issues arising. Counsel for the father again elected not to identify or raise the errors.
The focus on appeal by way of this error of fact then shifts to whether the error impacted the result of the case (De Winter v De Winter (1979) 29 ALR 211). The materiality of the error and whether it is to impugn the result becomes the heart of this ground.
On enquiry at the hearing of the appeal the father could not identify any material consequence that flowed from these errors of fact. It was uncontroversial that prior to the 2019 final orders the relationships between parents themselves, and between the father and the maternal grandmother, were poor and conflictual. In addition to the findings of the primary judge at [40] and [41] (as outlined in these reasons above at [12]), the findings of the primary judge as to these subject matters not challenged on appeal included:
33 The father argues that the relationship between himself, the mother and the maternal grandmother has worsened and that means communication is poor and he is not properly informed as he should be, about matters for [the child X]. That makes the care of [the child X] more difficult.
34 A large part of the problem in the communication and attitude was the father retaining [the child X] in 2021. It caused a real concern in the maternal household that the father might do that again, and the mother and maternal grandmother did not see that as being in [the child X’s] best interests. The father retained [the child X] on the basis of what could only be regarded as a novel interpretation of a notation, which he took to mean that if the mother was admitted to hospital, [the child X] should spend the entirety of the admission with him. Clearly, with respect to the way [the child X] manages his mother's health, that is not helpful for him.
…
39 The father points to deteriorated communication, and I would agree that on the evidence it appears that at times it is better than at other times and there have been ups and downs with communication since the Consent Orders were made. There is email communication that has been tendered that is civil between the maternal grandmother and the father. It does not appear that that would cause any particular issues in their capacity to communicate.
(Emphasis added)
The primary judge was tasked with making findings as to any material change to the attitudes of the parties or their communications. The father’s complaint by way of this ground does not reflect a historical matter prior to the consent order relevant to the determination as to a change in the requisite circumstances. The findings of the primary judge as to the status of the relationships between the parties, and its presentation, prior to and after the 2019 orders, was open on the evidence. The ground has no merit and fails.
Ground 2 – False Statements Regarding Visitation Compliance
The father contends that the evidence adduced in the mother’s affidavit, and the affidavit and the written submissions of the maternal grandmother, as to the child spending time with him, contained “false statements”. The “false statements” were either evidence adduced, or submissions made, that the child “has seen his father without fail in accordance with the 31 July 2019 orders” and that the father “had not made a single complaint of any breach of order 2(a) of the 31 July 2019 orders”.
The complaint developed to “occasions in which the father was denied his right to spend time” with the child pursuant to the 2019 orders. Relevant to this ground is the following finding of the primary judge:
36 Whilst the notation refers to additional time, I understand that additional time has occurred from time to time between [the child X] and his father on the evidence…
The orders did not make provision for the child to live with the father in the event of the mother’s hospitalisation. The father misinterprets Notation A made on 31 July 2019, equating it to an order. The contention as to the identified evidence of the mother and maternal grandmother subject to complaint as being “false” is misconceived.
The father’s real complaint by way of this ground was that the primary judge found the evidence to ground a different conclusion to that which he sought. That, in and of itself, does not demonstrate appellate error. The interpretation and weighing of evidence are matters of discretion. The ground fails.
Ground 3 Failure of the ICL’s Duty of Care and Legal Obligations to the Court
The father had four sub-grounds to the third ground of appeal, which he numbered 1 – 4. As he already identified the first two grounds of appeal as Grounds 1 and 2, this ground and its sub-grounds will be renumbered to be Grounds 3.1, 3.2, 3.3, and 3.4 respectively. Those grounds are:
[3.]1. Neglecting to Act in the Best Interests of the Child:
The ICL failed to report and act on known instances of domestic violence within the child’s living environment.
[3.]2. Failure to Adequately Consider Presence of Domestic Violence:
The ICL did not adequately investigate and impartially present available evidence of domestic violence in the home in which the live with order exists..
[3.]3. Failure to Conduct Independent Child Impact Assessment:
The ICL failed to ensure an independent assessment of the child’s needs was conducted before the trial.
[3.]4. Misrepresentation and Omission of Critical Evidence:
The ICL and the court omitted critical evidence from the Appellant’s Affidavit regarding potential risks to the child’s safety.
These are not complaints about any impediment of the father’s opportunities to be heard, or to present his case. The father’s dissatisfactions recorded in this ground as to the role and conduct of the ICL does not identify an error from which a competent appeal from an order made in the exercise of statutory discretion lies (House).
The father is self-represented in this appeal, but such disadvantage does not entitle him to prosecute incompetent grounds of appeal. He remains bound by the same legal principles as any other litigant. The ICL not supporting his application does not manifest appealable error by the primary judge. It is not the role of a primary judge to investigate the conduct of the ICL.
In any event, the father did not complain at the hearing as to the ICL conducting themselves other than in promoting the best interests of the child. He is not able to raise such complaint now (Metwally v University of Wollongong (1985) 60 ALR 68).
As no appealable error is asserted by Grounds 3.1 – 3.4, they are rejected.
CONCLUSION
At the conclusion of the appeal the ICL identified that “the father is very disappointed in the outcome of this matter, which is understandable. He clearly desires time with his son, and it appears [an] error of fact has become a lightning rod in the appeal”. That said, the reality of this appeal is that the father bore the onus of demonstrating a material change in circumstances to justify a variation of the 2019 final orders. It was open for the primary judge, in the exercise of a discretion, to find that he did not do so. The appeal will be dismissed.
COSTS
In the event the appeal was unsuccessful, the mother, who received a grant of legal aid, did not seek costs. The maternal grandmother sought costs in the fixed sum of $8,597. The ICL sought costs fixed in the sum of $4,901.
The father did not dispute the reasonableness of the quantum of the costs sought.
The father opposed an order as to costs, implicitly submitting that each party should bear their own costs.
The starting position, as set out at s 117 of the Act, is that each party bear their own costs. This position may be departed from where there are justifying circumstances drawn from the considerations set out at s 117(2A).
As to his financial circumstances, the father said that he had not worked for three or four months but had worked as a tradesman for 27 years and may have undertaken recent work in the transport industry. He identified that he has two other children, one being 21 years of age, and the other being a 12-year-old who he cares for three or four days each week. He said he had been refused Legal Aid to prosecute the appeal because he had equity in real property.
I do not accept that the father’s financial circumstances militate against the making of a costs order. By the dismissal of this appeal the father has been wholly unsuccessful. The circumstances justify the making of an order in the fixed sum as sought by the maternal grandmother and the ICL.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 20 September 2024
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