Beckert & Beckert

Case [2021] FedCFamC1A 40

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Beckert & Beckert [2021] FedCFamC1A 40

Appeal from: Beckert & Beckert [2020] FamCA 627
Appeal number(s): SOA 85 of 2020
File number(s): MLC 13463 of 2017
Judgment of: STRICKLAND, ALDRIDGE & WATTS JJ
Date of judgment: 15 October 2021
Catchwords:

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the trial in relation to parenting and a property settlement order took place on a Microsoft Teams platform over two days – Where there were technical difficulties from time to time – Where the husband was obnoxious, belligerent, disruptive and contemptuous – Where the husband received in excess of 16 warnings – Where the husband abandoned the proceedings by terminating the landline which the primary judge had ultimately directed that he use to participate in the trial – Where the husband did not appear to be sober – Whether the husband was denied procedural fairness when the hearing continued in his absence or when the primary judge failed to subsequently readmit him to the trial during oral submissions – Where there was no denial of procedural fairness – Appeal dismissed – Costs order made in the wife’s favour.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the husband sought to adduce further evidence – Where most of it was inadmissible and/or not demonstrative of the orders being erroneous – Where the husband sought to adduce evidence relevant to the primary judge’s finding that the husband had abandoned the proceeding – Where the husband did not establish that evidence demonstrated the order under appeal was erroneous or would have produced a different result if it had been available at the trial – Application dismissed.  
Legislation:

Family Law Act 1975 (Cth) ss 69ZN, 93A, 97(3), 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Family Law Rules 2004 (Cth) Sch 3, r 17.01

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, r 10.19

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor (1981) 148 CLR 170; [1981] HCA 39

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Beckert & Beckert (No. 2) [2019] FCCA 1488

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Carr v Baker (1936) 36 SR (NSW) 301

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gerlach v Clifton Bricks Pty Ltd  (2002) 209 CLR 478; [2002] HCA 22

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

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AGLC
Beckert & Beckert [2021] FedCFamC1A 40
Case
[2021] FedCFamC1A 40
Decision Date

CaseChat Overview and Summary

The case of Beckert & Beckert involved a dispute between the husband and wife concerning their three children born via surrogacy arrangements. The husband, a lawyer, was found to have Alcohol Use Disorder and other mental health issues. The wife, a former healthcare worker, was the primary caregiver for the children. The parties had a lengthy procedural history, marked by delays and non-compliance by the husband. The husband was found to have breached several court orders, resulting in him being barred from cross-examining the wife during the final hearing. The husband's appeal was based on the claim that he was denied procedural fairness due to being unable to cross-examine the wife and other issues related to the hearing. The court considered the husband's application to adduce further evidence, which was largely inadmissible or irrelevant. The court found that the husband's appeal did not demonstrate any error in the primary judge's decision and dismissed the appeal. The court also refused the husband's application to adduce further evidence. As a result, the orders of the primary judge were upheld, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, we have concluded that there was no miscarriage of justice and the appeal will be dismissed.BACKGROUND AND PROCEDURAL HISTORY At the time of the final hearing, the husband was aged 47. He is a lawyer. The wife was aged 45, previously worked as a healthcare worker and is the full-time primary carer of the parties’ three children, all aged six years, who were born as a result of two different surrogacy arrangements. The parties commenced cohabitation in 2005, married in 2007, separated under the one roof in May 2016 (the children were then aged approximately two and a half years) and physically separated in April 2017. At the time of the hearing, the children’s time with their father was day time only. The husband was subject to a condition that he submit to blood alcohol tests at the commencement, during and at the conclusion of that time. The single expert psychiatrist diagnosed the husband as having Alcohol Use Disorder; Social Anxiety Disorder; and Borderline and Obsessive Compulsive Personality Traits (at [154]). The case had a long procedural history, commencing in the Federal Circuit Court of Australia on 20 December 2017. The proceedings were marked by excessive delay and non-compliance by the husband. The matter was listed on 13 occasions prior to a scheduled commencement of a final hearing on 27 May 2019. The husband successfully had that final hearing vacated, but the judge of the Federal Circuit Court determining that application was critical of the husband’s failure to file any material and make full disclosure, and of his significant waste of court resources, making it clear that his Honour would not have granted the adjournment save for a conclusion that it was in the children’s best interests that the husband be afforded a final opportunity to file his evidence and, if the husband’s default continued, the wife would be granted liberty to apply for the proceedings to be heard on an undefended basis (see Beckert & Beckert (No. 2) [2019] FCCA 1488 at [53] and [61]). A costs order in the sum of $15,000 was made against the husband for the wife’s costs thrown away and the matter was transferred to the Family Court of Australia. There were a further seven court events in the Family Court before the commencement of the final hearing before the primary judge. The husband was convicted of five separate breaches of interim and final intervention orders. The mandatory provisions of s 102NA(1)(c)(i) of the Family Law Act 1975 (Cth) (“the Act”) were attracted, and on 9 October 2019, an order was made by the primary judge that the husband not be permitted to cross-examine the wife. The husband was initially assisted with the provision of a lawyer under the Commonwealth Family Violence and Cross-Examination of Parties Scheme but that lawyer ceased to act for the husband 24 days prior to the commencement of the trial and the husband had not arranged for any alternate lawyer to cross-examine the wife. As a result, the husband was not able to test the wife’s evidence at the hearing.COURSE OF THE FINAL HEARING

Evidence

Evidence Before The Court

The assertion by the husband that he was denied procedural fairness is a challenge to the integrity of the hearing and, if successful, requires a rehearing of the matter (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10] (Basten JA) and at [260] (Ward JA with Emmett AJA agreeing)). Ordinarily it is necessary to deal with that challenge first. However, in this case, because the other grounds of appeal and the husband’s application to adduce further evidence are relevant to the question of whether the primary judge failed to afford the husband procedural fairness, we shall deal with them before turning to that central question.Application to adduce further evidence The husband asks us to exercise our wide discretion pursuant to s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (formerly, s 93A(2) of the Act) to receive further evidence contained in his affidavits filed 13 April 2021 and 23 April 2021. The wife opposes the admission of the evidence. The High Court in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ ”) said:109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous.…111. …. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Much of the content in the husband’s two affidavits is: inadmissible commentary and submissions on what is in the transcript of the hearing; inadmissible hearsay; updating evidence about parenting issues going to grounds of appeal no longer pressed; and matters that are not of sufficient weight and relevance as to demonstrate the orders appealed from are erroneous. The only part of these two affidavits that require attention relate to the husband’s evidence about what happened at the time he terminated the landline connection with the Court which led the primary judge to draw the inference he had abandoned the proceedings. The husband says at paragraph 46 of his affidavit sworn 12 April 2021 that he recalls during the course of the hearing on the second day:(viii) just after midday, I had been disconnected again… In the husband’s second affidavit sworn 23 April 2021, he gives the following evidence at subparagraphs 11(k) and (i):(k)I received a further telephone call from the Associate (page 135 line 30 of the 28 July 2020 transcript). I was disconnected from the phone call. I am unsure how. It is alleged that I hung up the phone. I did not hang up the phone as alleged at page 137 line 30 of the 28 July 2020 transcript. That was a false assumption. A possible explanation could be that the drawers under my desk which are in front of the telephone and internet cabling were pushed/moved and the cabling was moved from the wall socket;…(i) soon after, I requested that an employee in my office, Ms [U], try to contact the Associate as I had been disconnected…There is no evidence from Ms U.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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